McCarty & Son

National Labor Relations Board - Board Decisions

Feb 27, 1984

268 N.L.R.B. 1136 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McCarty & Son, Inc. and International Brotherhood
of Electrical Workers, Local 414. Case 4-CA-
13077
27 February 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 8 September 1983 Administrative Law Judge
Bruce C. Nasdor issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed a cross-exception
and answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions2 and to adopt the recommended
Order. 3
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, McCarty &
Son, Inc., Willow Street, Pennsylvania, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order, except that the attached
notice is substituted for that of the administrative
law judge.
i The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that the are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
2 In adopting the judge's conclusions, we find it unnecessary to rely on
his application of the "small plant" doctrine to the facts of this case.
I The judge properly ordered that the Respondent cease and desist
from discouraging membership in the Union by laying off employees, but
he failed to so note in his "Notice to Employees." Accordingly, we shall
issue a notice that conforms with the Order.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these
rights.
268 NLRB No. 162
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT question employees about their
union activities and sentiments.
WE WILL NOT threaten employees with loss of
employment if our employees select International
Brotherhood of Electrical Workers, Local 414, or
any other union, as their collective-bargaining rep-
resentative.
WE WILL NOT promise to grant benefits to em-
ployees if our employees reject the Union as their
collective-bargaining representative.
WE WILL NOT lay off employees or otherwise
discriminate against them with respect to their hire
or tenure of employment or any term or condition
of employment in order to discourage membership
in the Union, or any other union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer to Theodore Lehmier immediate
and full reinstatement to his former position or to a
substantially equivalent position without prejudice
to his seniority or other rights and privileges, and
compensate him for any loss of pay suffered by
reason of his termination, with interest.
WE WILL expunge from our files any reference
to the discriminatory layoff of Theodore Lehmier,
on 9 July 1982, and notify him in writing that this
has been done and that evidence of this unlawful
layoff will not be used as a basis for future person-
nel actions against him.
All our employees are free to become, remain, or
refrain from becoming members of International
Brotherhood of Electrical Workers, Local 414, or
any other union.
MCCARTY & SON, INC.
DECISION
BRUCE C. NASDOR, Administrative Law Judge: This
case was tried at Lancaster, Pennsylvania, on April 14,
1983.
The complaint alleges that McCarty & Son, Inc. (the
Respondent), violated Section 8(a)(1) and (3) of the Na-
tional Labor Relations Act (the Act) by discriminatorily
terminating an employee, Theodore Lehmier. It is fur-
ther alleged that the Respondent independently engaged
in 8(a)(1) violations of the Act by threats and interroga-
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MCCARTY & SON
tion. At the hearing counsel for the General Counsel
moved to amend the complaint to allege an additional
count of interrogation and the motion to amend was
granted. The Respondent, in its answer, denies each and
every allegation.
On the entire record,' including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is engaged in electrical construction
work with its principal place of business located at 315
Carol Lynn Drive, Willow Street, Pennsylvania. During
the past year, the Respondent, in the course of its busi-
ness operations, purchased and received goods and mate-
rials valued in excess of $50,000 from suppliers located
within the Commonwealth of Pennsylvania, each of
whom received said goods and materials directly from
points outside the Commonwealth of Pennsylvania. The
Respondent is, and has been at all times material herein,
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
11. LABOR ORGANIZATION
The Union is, and has been at all times material herein,
a labor organization within the meaning of Section 2(5)
of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
The Respondent is a Pennsylvania corporation en-
gaged in electrical construction in the Lancaster, Penn-
sylvania area. Karl McCarty is the Respondent's presi-
dent and Brian McCarty is its secretary and field super-
visor.
On June 18, 1982,2 Karl McCarty interviewed and
hired Theodore Lehmier. Lehmier began working for
the Respondent as a journeyman electrician on June 21.
He worked at the Respondent's Kennett Square, Penn-
sylvania jobsite on the "CJ Clark" project. This job was
located approximately an hour away from the Respond-
ent's facility and Lehmier and his coworkers were trans-
ported back and forth from the jobsite each day by van.
The van was driven by Harold Asper, the Respondent's
job foreman on this project.
Soon after being hired, during the roundtrips to and
from the job, Lehmier, who was familiar with the Union
because his twin brother was a member, began to dis-
cuss, in the presence of Asper, the benefits of the Union.
The discussions between Lehmier and his coworkers re-
volved around, inter alia, the pay scale, excessive over-
time, general working conditions, the long drive to and
from the job, and Brian McCarty's attitude.
On July 6, Lehmier called Lester Turner, the Union's
business manager and financial secretary, and asked him
if the Union would help in organizing the Respondent's
employees, and they discussed the procedures for reach-
' Counsel for the General Counsel's unopposed motion to correct the
transcript is hereby granted.
All dates are in 1982, unless otherwise specified.
ing this end. Again, on July 7 and 8, they spoke about
the possibility of Turner meeting with a group of em-
ployees on July 9. It was determined that Turner, Leh-
mier, and the employees would meet on Friday at ap-
proximately 5 p.m. rather than 7 p.m. because Turner
had a prior commitment. Lehmier stated that he would
have to confirm the time with his coworkers and he
would get back to Turner. Lehmier then called all of the
Respondent's employees except Jeff Holstein. Subse-
quently, he spoke to Turner, on July 8, and told him that
he had confirmed the meeting with the other employees,
and a 5:15 p.m. meeting on July 9 was acceptable.
On the evening of July 8, when Lehmier telephoned a
coworker, Robert Diehl, to advise him of the union
meeting to be held the next day, Diehl interrupted Leh-
mier and told him he had heard all about it from Harold
Asper, the job foreman, and he wanted nothing to do
with the Union. Diehl further advised Lehmier that he
had called Brian McCarty and told him that Lehmier
was organizing. Lehmier responded that he hoped Diehl
would not screw up the union meeting just because he
was not interested in the Union, that he should not leave
the employees in a "jam." In his testimony, McCarty ad-
mitted that he spoke with Diehl on the evening of July 8
and that Diehl mentioned the rumor that the Union was
trying to get in, and he may have mentioned Asper as
having heard the same thing. McCarty denied that Leh-
mier's name was mentioned in the conversation.
Lehmier received a call from Brian McCarty approxi-
mately 20 minutes after his July 8 telephone conversation
with Turner. McCarty told Lehmier that he was no
longer needed on the Kennett Square project, that there
was a job in Lancaster, and that he should report to the
Respondent's shop the next morning.
On July 9 the next morning, Lehmier met Brian
McCarty at the Respondent's shop and was informed by
McCarty that he was laid off because the CJ Clark boi-
lerhouse job had been completed. Lehmier stated that he
wanted to know the real reason, to which McCarty re-
sponded there was a lack of work. He advised Lehmier
that if work picked up he would call him back. Lehmier
told Brian McCarty that when he was hired he was told
by Karl McCarty that it was not company policy to lay
off employees, and that it did not make sense to hire an
employee and lay him off 3 weeks later. Lehmier testi-
fied that at his prehire interview with Karl McCarty,
after discussing preliminaries, he asked McCarty about
job security. McCarty allegedly replied that it was com-
pany policy not to lay off and that the Respondent had
work scheduled for the entire year. Initially, Karl
McCarty testified there was no discussion at all with re-
spect to the subject of layoffs. Later in his testimony he
admitted that he did tell Lehmier that it was company
policy not to hire a lot of people and lay them off. He
further testified that Lehmier did inquire as to how long
the job would last and McCarty responded that it was
not his intention to lay off an employee after a week or
two of employment.
After being laid off, Lehmier called Turner and in-
formed him of what had happened. Later that day,
Turner met with Lehmier, Vincent Jones, and another of
1137
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent's employees at a fire hall and all three
signed union authorization cards. Approximately I week
later, Karl McCarty approached Jones in the shop and
asked him whether he signed a card. Jones replied af-
firmatively, and McCarty responded that he was sur-
prised that Jones did that.
Approximately 1 week after this conversation, Karl
McCarty approached employee Robert Picciani at the
jobsite and asked him how he felt about the Union. After
Picciani responded that he was unsure as to his feelings,
McCarty responded that, if Picciani worked "in the
union," he would be working "for the local 414 union
hall," not a contractor, and that McCarty could simply
call the hall for a different employee rather than Picciani
if he so desired. He also told Picciani that if he stayed
nonunion McCarty could make it better for him as far as
a raise in pay.
On July 8, a meeting was held at the jobsite between
Brian McCarty and the employees. A discussion ensued
concerning Respondent's dress code and policy of paying
the men for I hour travel time to the jobsite. Lehmier
did not approve of the Respondent's policies and ex-
pressed his displeasure, using curse words during the
course of his expression. Asper, the job foreman, testified
that the language used by Lehmier at the meeting was
typical of that used by other men on the job. At this
meeting McCarty distributed to the employees, including
Lehmier, keys to the toolboxes, shop building, and
trucks. After handing out the keys, McCarty recorded in
a notebook the days that the employees, including Leh-
mier, planned to take off for vacation. It is unrefuted that
Lehmier was asked by McCarty which days he wanted
for vacation and, when he responded, McCarty recorded
same in his notebook.
It is uncontroverted that, shortly after he was hired,
Lehmier telephoned Karl McCarty at his home and com-
plained about working conditions.
Conclusion and Analysis
It is undisputed that Lehmier was the principal mover
for union representation among the employees. His union
support was open with no effort made to hide his feel-
ings from either his coworkers or management.
Although hearsay, there is record testimony by Leh-
mier that Diehl told Brian McCarty about the union
campaign and Lehmier's involvement. McCarty admits
the conversation but denies that any names were men-
tioned. Diehl did not testify. I do not believe that Diehl
and McCarty discussed the Union's organizational cam-
paign on July 8, the night preceding Lehmier's termina-
tion, without Lehmier's name being mentioned.
Asper was also aware of the union activity among the
Respondent's employees. It was part of his job to keep
management apprised of developments, particularly em-
ployee complaints which he could not settle. He ar-
ranged the July 8 meeting between McCarty and the em-
ployees.
The timing of the layoff is more than highly suspi-
cious, particularly when the Respondent learned of the
union activity the prior evening.
Another factor to be considered is Lehmier's com-
plaints about working conditions almost immediately
after commencing his employment.
Only the day before the layoff, Lehmier was handed
keys to the toolbox, shop, and truck. His vacation desires
were also solicited and recorded.
The thread of Lehmier's "attitude" regarding working
conditions and company policy runs throughout Re-
spondent's defense. These factors occasioned McCarty to
have a witness, a secretary, present when he informed
Lehmier of his layoff.
Respondent had only nine employees in July. Even if
these other factors were not present, knowledge would
be inferred by virtue of the "small plant" doctrine.
Although subsequently, some months later, several em-
ployees were laid off, the Respondent was unable to ex-
plain to my satisfaction why it bothered to hire Lehmier
on June 21, only to lay him off 3 weeks later.
Moreover, the preponderance of the evidence discloses
that work was available for Lehmier. Brian McCarty ac-
tually told him there was work in the Lancaster area.
In my view the Respondent's economic defense is a
pretext, and the real reason for the layoff of Lehmier
was his union activity. The Respondent's shifting de-
fense, insubordination, is equally specious. McCarty
never confronted Lehmier with his insubordination at the
exit interview or during the July 8 conversation. Record
testimony discloses that profanity among the employees
was commonplace.
Lehmier impressed me as a credible witness whose de-
meanor evidenced an assuredness. He was articulate and
in my view made an honest effort to be scrupulous in his
testimony.
By way of contrast, Brian and Karl McCarty were
evasive and tended to distort. Accordingly I discredit
them.
I conclude that the Respondent's true motivation for
laying off Lehmier was union animus, thus the layoff was
in violation of Section 8(aX)(1) and (3) of the Act.
The interrogation of Vincent Jones stands unrefuted
on this record. Accordingly by engaging in said conduct,
Respondent violated Section 8(a)(I) of the Act.
I also find that Karl McCarty, by questioning Picciani
as to how he felt about the Union, by implying that
unionization would result in the loss of job opportunities,
and by promising improved wages and benefits if he
stayed nonunion McCarty violated Section 8(a)(1) of the
Act. Jones was similarly unlawfully interrogated in viola-
tion of Section 8(a)(l) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By interrogating an employee as to his union senti-
ments, Respondent engaged in a violation of Section
8(a)(1) of the Act.
4. By interrogating an employee with respect to his
union sympathies, threatening said employee with loss of
1138
MCCARTY b SON
employment if its employees selected the Union as their
collective-bargaining representative, and promising to
grant benefits to said employee if he rejected the Union
as his collective-bargaining representative, the Respond-
ent engaged in conduct in violation of Section 8(a)(1) of
the Act.
5. The Respondent discriminatorily laid off Theodore
Lehmier in violation of Section 8(a)(l) and (3) of the
Act.
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(1) and (3) of the Act, I shall recommend that it be
ordered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of
the Act.
Having found that the Respondent discriminatorily
laid off Theodore Lehmier, I recommend that the Re-
spondent offer him immediate and full reinstatement to
his former or substantially equivalent position, without
prejudice to his seniority or other rights and privileges.
In addition I recommend that the Respondent make Leh-
mier whole for any loss he may have suffered by reason
of the discrimination against him, by payment to him, a
sum of money equal to that which he would normally
have earned from the date of his discharge, less net earn-
ings during said period. Backpay shall be computed ac-
cording to F. W Woolworth Co., 90 NLRB 289 (1950),
and with interest computed in the manner prescribed in
Florida Steel Corp., 231 NLRB 651 (1977). (See generally
Isis Plumbing Co., 138 NLRB 716 (1962).)
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommended
ORDER3
The Respondent, McCarty and Son, Inc., Willow
Street, Pennsylvania, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Interrogating employees about their union activities
and sympathies.
(b) Threatening employees with loss of employment if
the Respondent's employees select the Union as their
collective-bargaining representative.
S If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
(c) Promising to grant benefits to employees if they re-
jected the Union as their collective-bargaining represent-
ative.
(d) Discouraging membership in the Union by laying
off employees or otherwise discriminating in any manner
with respect to their tenure of employment or any term
or condition of employment or engaging in protected
concerted activity or union activity.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Theodore Lehmier immediate and full rein-
statement to his former position or, if such position no
longer exists, to a substantially equivalent position, with-
out prejudice to any seniority or other rights and privi-
leges, and make him whole for any loss of pay he may
have suffered by reason of the discrimination against him
with interest as provided in the section above entitled
"The Remedy."
(b) Post at its premises at Willow Street, Pennsylvania,
copies of the notice marked "Appendix." 4 Copies of said
notice on forms provided by the Regional Director for
Region 4, after being signed by Respondent's authorized
representative, shall be posted immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that said notices are not al-
tered, defaced, or covered by any other material.
(c) Preserve and, upon reasonable request, make avail-
able to the Board or its agents, for examination and
copying, all payroll records and reports and all other
records necessary to ascertain and compute the amount,
if any, of backpay due under the terms of this Order.
(d) Notify the Regional Director for Region 4 in writ-
ing within 20 days from the date of this Order what
steps have been taken to comply.
(e) Expunge from its files any reference to the dis-
criminatory layoff of Theodore Lehmier, on July 9,
1982, and notify him in writing that this has been done
and that evidence of this unlawful layoff will not be used
as a basis for future personnel actions against him.
4 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
1139