National Fabricators, Inc.

National Labor Relations Board - Board Decisions

Jul 31, 1989

295 N.L.R.B. 1095 (N.L.R.B. 1989)

NATIONAL FABRICATORS 1095
National Fabricators , Inc. and United Association of
Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States
and Canada, AFL-CIO, Local 198 . Case 15-
CA-10433
July 31, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On November 23, 1988 , Administrative Law
Judge J. Pargen Robertson issued the attached de-
cision . The Respondent filed exceptions and a sup-
porting brief and a request for oral argument.' The
General Counsel filed an 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
conclusions for the reasons stated below2 and to
adopt the recommended Order.3
The Respondent argues that it acted lawfully
when it selected seven employees for a temporary
economic layoff on the ground that they were
likely to honor a union picket line that might be set
up at the Respondent 's establishment in the near
future . It in effect claims that it may take this
action in anticipation of what it could essentially
otherwise do under the principles of NLRB v.
Mackay Radio & Telegraph Co., 304 U.S. 333
(1938), and of those cases upholding an employer's
right to lock out employees . NLRB v. Brown Food
Store, 380 U .S. 278 ( 1965); NLRB v. Teamsters
Local 449, 353 U .S. 87 (1957); Operating Engineers
Local 825 v. NLRB, 829 F .2d 458 (3d Cir . 1987);
Inter-Collegiate Press v. NLRB , 486 F .2d 837 (8th
Cir. 1973). We find no merit in this argument.
As a preliminary matter , we think it clear
beyond peradventure that the criterion used by the
Respondent to select employees for layoff-disfa-
voring employees who were likely to engage in
protected union activities-is the kind of coercive
discrimination that naturally tends to discourage
unionization and other concerted activity . See Gat-
liff Business Products, 276 NLRB 543, 558 (1985).
("[M]ass discharges or layoffs of union adherents
are particularly destructive of rights of employes
' The Respondent 's request for oral argument is denied as the record,
exceptions , and briefs adequately present the issues and the positions of
the parties.
8 Member Cracraft affirms the findings and conclusions of the adminis-
trative law judge for the reasons stated in his decision
8 The judge failed to include an expunction clause in the notice. Ac-
cordingly, we shall provide a new notice.
[sic] guaranteed to them in Section 7 of the Act,
not only because they serve to separate the propo-
nents of unionization from contact wit [sic] their
coworkers, but also because they clearly demon-
strate to those who remain that the employer can
and will control who works for it based on antiun-
ion considerations .") The alleged discriminatees in
the present case , in order to save their jobs, were
left with little apparent choice but to agree in ad-
vance to resist the Union's probable appeal to
engage in the concerted activity at issue; indeed,
resigning from union membership might even be
perceived as the price for avoiding the advance
layoff, because resignation would protect them
from the disciplinary measures that a union may
take against members who decline to honor a
lawful picket line. Such direct coercion of employ-
ees to abandon contemplated support for union ac-
tivity would surely pose a lingering hindrance to
future organizational activity.
The Respondent nevertheless asserts, in some-
thing of an a fortiori argument , that it may draw
on the business reasons sustained in Mackay and in
the lockout cases to overcome this unlawful dis-
crimination and coercion . See Metropolitan Edison
Co. v. NLRB, 460 U.S. 693, 703 (1983) (finding that
an employer's conduct is inherently destructive
does not end the inquiry, but requires the Board to
then "strike the proper balance between the assert-
ed business justifications and the invasion of em-
ployee rights"). We do not believe that the business
justifications upheld in these cases can be so easily
transposed to the instant case.
Under Mackay, an employer may hire temporary
or permanent replacements for employees who
have actually vacated their jobs temporarily by
going on strike . An employer is afforded this right
"[b]ecause the employer's interest [in protecting
and continuing its business] must be deemed to out-
weigh the damage to concerted activities caused by
permanently replacing strikers ." NLRB v. Erie Re-
sistor Corp., 373 U.S. 221, 232 ( 1963). Similarly, in
Brown Food Store and the other cited decisions, the
courts have found that in the particular facts of
those cases the employers ' business reasons for
locking out all of their employees (not just those
most likely to support the union) and carrying on
operations with temporary replacements out-
weighed any interference with concerted employee
activity or discouragement of union membership.
In Brown , for example , the Court stressed that the
lockout and hiring of temporary replacements, al-
though having a remote tendency to discourage
union membership, still were reasonably adapted to
the effectuation of a legitimate business end-de-
fending the integrity of the multiemployer bargain-
295 NLRB No. 126
1096 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing association in the face of a whipsaw strike. 380
U.S. at 288.
In contrast, the Respondent here offers no com-
pelling reason why it had to implement its econom-
ic layoff by selecting those employees who it
feared would honor a possible picket line . Unlike
the employers in the lockout cases, the Respondent
was not responding to a bargaining impasse, nor at-
tempting to protect an employer bargaining asso-
ciation . Moreover, there is no indication that the
continued operation of its business necessitated that
it utilize a discriminatory criterion for laying off
employees. For had the Union erected the picket
line, and the discirminatees honored that line, the
employer remained free to hire replacements or
call back to work those who had been laid off
under a neutral standard . The judge found that the
Respondent 's own witness candidly stated the real
reason for its discriminatory conduct: "[I]f you're
going to string out for two or three weeks and
carry these people on your payroll and invest
money in them, if they 're going to quit anyhow a
week later, why in the hell are going to put money
into them , lay them off." As a business justification,
this was neither legitimate nor substantial.4
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent , National
Fabricators , Inc., Baton Rouge, Louisiana, its offi-
cers, agents , successors , and assigns , shall take the
action set forth in the Order , except that the at-
tached notice is substituted for that of the adminis-
trative law judge.
4 Cf. Laclede Gas Co., 187 NLRB 243 (1970). (As contract termination
date approached, employer lawfully "locked out" certain of its employ-
ees although retaining others on the payroll to do work which readied
the company for an impending work stoppage; employer did not select
employees on the basis of union membership or activity.)
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.
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 lay off our employees because we
fear our employees may honor a union picket line.
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 make whole Morris G. Levine Jr.,
Jeffery L. Ashford, Dempsey J. Carlene, Bobby W.
Sevario, Michael K . Sevario, Carl W. Henderson,
and Thomas E. Temple Jr. for any loss of earnings
they suffered by reason of our discrimination
against them with interest . WE WILL also notify
them that we have removed from our files any ref-
erence to their layoffs and that the layoffs will not
be used against them in any way.
NATIONAL FABRICATORS, INC.
Richard C. Auslander, Esq., for the General Counsel.
Murphy J. Foster, III, Esq., of Baton Rouge, Louisiana,
for the Respondent.
Jerry Gardner, Jr., Esq., of New Orleans, Louisiana, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
J. PARGEN ROBERTSON, Administrative Law Judge.
This case was heard by me in Baton Rouge, Louisiana,
on July 13, 1988. The complaint which issued on No-
vember 25, 1987, based on a charge which was filed on
October 15 , 1987, alleges that Respondent violated Sec-
tion 8(a)(1) and (3) of the Act."
The primary issue here is did Respondent layoff seven
employees on October 17, 1987, because of their protect-
ed activities.
From before December 1986, a number of union mem-
bers in the Baton Rouge area were unable to find em-
ployment with "union" employers . It became common
practice for union members to work for "non -union" em-
ployers . One of those nonunion employers was the Re-
spondent.
Respondent's superintendent , Oscar LaFleur, testified
that both he and his foreman during 1987 , Reid Jury, are
union members . Additionally several of Respondent em-
ployees, including all the alleged discriminatees, are
union members.
' Respondent in its answer to the complaint admitted all the commerce
allegations, that it is an employer engaged in commerce within the mean.
ing of Sec. 2(6) and (7) of the Act , and that the Charging Party is and
has been at all times material herein, a labor organization within the
meaning of Sec. 2 (5) of the Act.
NATIONAL FABRICATORS 1097
By letter to its members dated December 15, 1986, the
Charging Party (Local 198) agreed that members could
work for nonunion employers provided the respective
members sign an agreement to try and organize the em-
ployer.
However, on September 15, 1987, the International
Union wrote the members that the Local erred in au-
thorizing nonunion employment . The International cited
a constitutional provision prohibiting members from
working for nonunion employers.
That September 15 letter created activity in the Baton
Rouge area . Discussions at Respondent 's facility among
employees , and among employees and supervisors , often-
times concerned the International 's September 15 letter.
There were discussions concerning whether the union
employees would honor a union picket line.
Since the International threatened action within 30
days it was anticipated that a picket line could be estab-
lished on October 15, 1987.
In late September or early October the Union targeted
several of the nonunion employers and began organizing
efforts . One of those targeted employers was Respond-
ent. Local Representative Bobby Bennett contacted some
of Respondent 's union employees. Even though they
were union members, all seven of the alleged discrimina-
tees signed union authorization cards between September
28 and October 2, 1987.
Superintendent Oscar LaFleur admitted hearing that
employees were signing union cards . However, LaFleur
denied knowing that any of the alleged discriminatees
had signed cards . LaFleur admitted knowing that all the
alleged discriminatees were union members.
LaFleur testified that the seven alleged discriminatees
were not selected for layoff on October 7, 1987, because
they signed union authorization cards . In that regard,
LaFleur testified that he did not tell any employee that
he selected the seven because they signed union cards.
However, LaFleur admitted that he laid off the seven
because of his fear they may honor a union picket line.
For example, LaFleur testified as follows:
You know , to me . . . let me back this up and
rephrase that thing . I think that what really hap-
pened is that we was told these boys was going to
quit and it helped prompt the layoff because if
you're going to string out for two or three weeks
and carry these people on your payroll and invest
money in them , if they're going to quit anyhow a
week later, why in the hell are you going to put
money into them , lay them off.
LaFleur illustrated through his entire testimony that
he was referring to the likelihood that the alleged discri-
minatees would refuse to cross a union picket line when
he testified that they were going to quit.
However, it is not disputed that LaFleur discussed
what the employees would do if the Union picketed their
job. The evidence shows that LaFleur was either told or
could have understood that each of the alleged discri-
minatees may honor a union picket line.
LaFleur admitted that he was upset by the Internation-
al Union 's September 15, 1987 letter.
The evidence in dispute concerns the question of Re-
spondent's alleged knowledge that the seven alleged dis-
criminatees signed union authorization cards.
Alleged discriminatees Carl Henderson and Thomas
Temple testified that after the layoff on October 7, La-
Fleur told them they were laid off because they signed
union cards.
LaFleur admitted having a conversation with Hender-
son and Temple in the presence of employees Claude
Craner and David Lohr. LaFleur denied saying the
layoff was because the employees signed union cards.
According to LaFleur , he was asked if the layoff was be-
cause of cards , but he replied that he didn't know who
signed the cards and didn't care . LaFleur was corrobo-
rated by the testimony of employees Craner and Lohr.
Both Craner and Lohr are members of the Union.
Henderson testified that in subsequent conversations 2
days and 2 weeks after the layoff, LaFleur indicated to
him that he could return to work if he rescinded his
union card.
Discussion
Henderson and Temple admitted that employees
Craner and Lohr were in the vicinity of the October 7
conversation with LaFleur , but both disputed whether
David Lohr overheard the conversation.
In view of the entire record , I am unable to credit that
Oscar LaFleur threatened that employees were laid off
because they signed union cards, or that he promised to
rehire David Henderson if Henderson rescinded his card.
The October 7 conversation was a heated conversa-
tion . Respondent had announced the layoffs that day and
Oscar LaFleur admittedly was angry because of the In-
ternational 's September 15 letter . It is apparent that all
five participants in that conversation may have difficulty
recalling who said what . However, the two employees
that had no reason to be angry supported the testimony
of Oscar LaFleur. Moreover , those two-Craner and
Lohr-were also union members.
Additionally , the overall record illustrates that Oscar
LaFleur, a long-term union member, was not concerned
with the alleged discriminatees ' union membership.
Indeed, LaFleur knew of each of the alleged discrimina-
tees' union affiliation from before their employment by
Respondent.
Conclusion
Conclusions
The evidence is in sharp dispute as to whether Re-
spondent told employees that the October 7 layoff was
called when Oscar LaFleur learned that the seven al-
leged discriminatees had signed union authorizations
cards.
A. The 8(a)(1) Statements
In view of my credibility findings , I cannot credit the
evidence regarding the alleged 8(a)(1) statements. I find
that Respondent did not violate Section 8(a)(1) by telling
employees that they had been laid off because employees
had signed union cards or by telling an employee he
1098 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
would be reinstated if he returned his union card to the
Union.
B. The Layoff
In view of my findings above I find that Respondent
did not lay off employees on October 7 because its em-
ployees signed union authorization cards.
However, due to the admission of Respondent 's super-
intendent, Oscar LaFleur, I find that the employees were
laid off because Respondent feared they would honor a
picket line.
"It is well established that nonstriking employees who
refuse to cross a picket line their fellow employees main-
tain , make common cause with the strikers , and may not
be lawfully discharged for their activities." Dave Castel-
lino & Sons, 277 NLRB 453, 454 (1985). See also Ashta-
bula Forge, 269 NLRB 774 (1984); Browning-Ferris Indus-
tries, 259 NLRB 60 (1981), enfd. 700 F.2d 38S (7th Cir.
1983); Inland Steel Co., 264 NLRB 84 (1982).
Picket activity and assertions by employees that they
may honor a picket line constitutes protected activity.
Therefore, discharge for that activity violates Section
8(a)(1). In the instant case, it is clear that the threatened
picketing also constitutes union activity . Therefore, Re-
spondent's actions in discharging the seven alleged dis-
criminatees also violates Section 8(a)(3) of the Act.
CONCLUSIONS OF LAW
1. National Fabricators , Inc. is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of the United
States and Canada, AFL-CIO, Local 198 is a labor orga-
nization within the meaning of Section 2(5) of the Act.
3. By laying off employees Jeffery L. Ashford, Demp-
sey J. Carlene, Carl W. Henderson , Morris G. Levine
Jr., Bobby W. Sevario, Michael K. Sevario, and Thomas
E. Temple Jr., because Respondent feared they may
honor a union picket line, Respondent violated Section
8(a)(1) and (3) of the Act.
4. Respondent did not otherwise engage in conduct
violative of Section 8(a)(1) of the Act.
activities .2 Backpay shall be computed in the manner
prescribed in F W. Woolworth Co., 90 NLRB 289 (1950),
plus interest as computed in New Horizons for the Retard-
ed, 283 NLRB 1173 (1987).3
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed4
ORDER
The Respondent, National Fabricators , Inc., Baton
Rouge, Louisiana , it officers , agents, successors , and as-
signes, shall
1. Cease and desist from
(a) Laying off its employees because of its fear that
those employees may honor a union picket line.
(b) In any like or related manner interfering with, re-
straining , or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is
deemed to be necessary to effectuate the policies of the
Act.
(a) Make whole employees Jeffery L. Ashford, Demp-
sey J. Carlene, Morris G. Levine Jr., Bobby W. Sevario,
Michael K. Sevario, Carl W. Henderson, and Thomas E.
Temple Jr., for losses suffered as a result the discrimina-
tion against them in the manner set forth in the remedy
section of this decision.
(b) Expunge From the personnel files of employees
Jeffery L. Ashford, Dempsey J. Carlene, Morris G.
Levine Jr., Bobby W. Sevario, Michael K. Sevario, Carl
W. Henderson, and Thomas E. Temple Jr., any reference
to its illegal actions against them , and notify Ashford,
Levine, Carlene, Bobby Sevario, Michael Sevario, Hen-
derson, and Temple, in writing that this has been done
and that evidence of its unlawful actions will not be used
as a basis for future personnel action against them.
(c) Preserve and, on request , make available to the
Board or its agents for examination and copying , all pay-
roll records , social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its Baton Rouge, Louisiana facility copies
of the attached notice marked "Appendix."s Copies of
THE REMEDY
Having found that Respondent hag engaged in unfair
labor practices in violation of Section 8(a)(1) and (3) of
the Act, I shall order it to cease and desist therefrom,
and to take certain affirmative action designed to effectu-
ate the policies of the Act. Having found that Respond-
ent has illegally laid off employees, Jeffery L. Ashford,
Dempsey J. Carlene, Carl W. Henderson, Morris G.
Levine Jr., Bobby W. Sevario, Michael K. Sevario, and
Thomas E. Temple Jr., I recommend that Respondent be
ordered to make Ashford, Carlene, Henderson, Levine,
B. Sevario , M. Sevario , and Temple whole for loss of
earnings each suffered because of Respondent 's illegal
2 Record evidence indicated that Respondent had rehired all the al-
leged discnminatees before the hearing in this matter . For that reason I
have not recommended a reinstatement order.
8 Under New Horizons, interest is computed at the "short -term" Federal
rate for the underpayment of taxes as set out in the 1987 amendment to
26 U S.C. § 6621 . Interest accrued before January 1987 (the effective
date of the amendment) shall be computed as in Florida Steel Corp., 231
NLRB 651 (1977).
4 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-5 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
NATIONAL FABRICATORS 1099
the notice, on forms provided by the Regional Director,
for Region 15, after being signed by the Respondent's
authorized representative, shall be posted by Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.