National Specialties Installations

National Labor Relations Board - Board Decisions

Jan 18, 2005

344 N.L.R.B. 191 (N.L.R.B. 2005)

NATIONAL SPECIALTIES INSTALLATIONS, INC.
344 NLRB No. 2
191
National Specialties Installations, Inc. and Erin Hard-
castle-Mehlhose. Case 7–CA–46698
January 18, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On August 16, 2004, Administrative Law Judge Wil-
liam N. Cates issued the attached bench decision. The
Respondent filed exceptions, a supporting brief, and a
motion to reopen the record and receive additional evi-
dence. The General Counsel filed a cross-exception and
supporting brief, an answering brief, and an opposition to
the Respondent’s motion.1
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions and to adopt the recommended
Order as modified.3
The General Counsel cross-excepted to the judge’s rul-
ing during the hearing that the General Counsel violated
the Board’s Jencks rule by failing to produce a July 12,
2003 notice sent to the discriminatees by their bank. See
Board’s Rules and Regulations § 102.118(b)-(d); see also
Jencks v. United States, 353 U.S. 657, 667–672 (1957)
(holding that a defendant has the right to inspect, for im-
peachment purposes, prior statements made to govern-
ment agents by government witnesses). Although we
find merit in the General Counsel’s cross-exception, we
do not disturb the judge’s factual findings regarding the
July 12 notice.
As a general matter, a written notice from a third-party
bank to a witness will not be a “statement made by said
witness” under the Board’s rule. Board’s Rules and
Regulations §102.118(d). Moreover, there is no evi-
dence that the notice in question was “adopted” by the
discriminatees in a manner that would bring it within the
rule. Id.; see also Goldberg v. United States, 425 U.S.

1 We deny the Respondent’s motion. The Respondent has not dem-
onstrated extraordinary circumstances that would warrant reopening the
record. Nor are we persuaded that the evidence the Respondent seeks
to add would require a different result in this case. At best, it is merely
cumulative of evidence already in the record. See Sec. 102.48 (d)(1) of
the Board’s Rules and Regulations.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they 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.
3 We shall substitute the Board’s standard language for par. 2(a) of
the judge’s decision.
94, 110 fn. 19 (1976). We therefore find that the General
Counsel did not violate the Board’s Jencks rule.
Of course, a party’s failure to produce a document on
which it relies has long been recognized as a permissible
basis for drawing an adverse inference that the document
does not exist or that its contents would not be favorable
to that party. See, e.g., Mid States Sportswear, Inc., 168
NLRB 559, 560 (1967). The adverse inference rule is
not mandatory, however; it permits, but does not require,
drawing an adverse inference against the party that fails
to produce the document. See Champ Corp., 291 NLRB
803, 803–804 (1988), enfd. 933 F.2d 688 (9th Cir. 1990);
accord: Overnite Transportation Co., 140 F.3d 259, 266
fn. 1 (D.C. Cir. 1998). Here, the judge found sufficient
evidence to support an unfair labor practice finding, not-
withstanding the failure of the General Counsel to pro-
duce the July 12, 2003 notice to the Mehlhoses from
their bank. This testimony included credited testimony
by Erin and Matthew Mehlhose that they received the
notice, documentary evidence showing that their pay-
checks were in fact returned by the bank, testimony re-
garding “documents, deposition, and exhibits made a part
of [related] civil litigation between the parties” and the
passage of time since that litigation concluded, and evi-
dence of the Respondent’s overall problems with bounc-
ing checks issued to the Mehlhoses and others. On the
basis of the record evidence as a whole, we find that the
judge properly declined to draw an adverse inference
against the General Counsel for failing to produce the
July 12 notice.4
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, National
Specialties Installations, Inc., Detroit, Michigan, its offi-
cers, agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Substitute the following for paragraphs 2(a) and (b)
and reletter the subsequent paragraphs.
“(a) Within 14 days from the date of this Order, offer
Erin Hardcastle-Mehlhose and Matthew Mehlhose full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-

4 We would not, however, rely on the judge’s finding that the notice
was “misplaced with no unlawful motive attached thereto.” There is no
basis in the record for such a conclusion. The Charging Party, Erin
Mehlhose, testified that she provided the General Counsel with the
notice during the investigation in the case. The General Counsel did
not refute this testimony and did not adequately explain the where-
abouts of the notice. While troubling, these matters need not form the
basis for an adverse inference, given the other record evidence support-
ing the judge’s finding that there was a notice that was received by the
Mehlhoses.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD192
out prejudice to their seniority or any other rights or
privileges previously enjoyed.
(b) Make Erin Hardcastle-Mehlhose and Matthew
Mehlhose whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against
them, in the manner set forth in the remedy section of the
judge’s decision.”
Richard F. Czubaj, Esq., for the Government Counsel.1
John D. Meyer, Esq., for the Company.2
BENCH DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. This is a
wrongful discharge case. The parties presented evidence and
gave closing arguments on July 13 and 14, 2004, I issued a
Bench Decision pursuant to Section 102.35(a)(10) of the Na-
tional Labor Relations Board’s (the Board) Rules and Regula-
tions setting forth findings of fact and conclusions of law.
For the reasons stated by me on the record at the close of
trial, specifically including credibility determinations, I found
National Specialties Installations, Inc. (the Company) violated
Section 8(a)(1) of the National Labor Relations Act (the Act)
by on or about July 14, 2003, discharging its employees Erin
Hardcastle-Mehlhose and Matthew Mehlhose because they
concertedly complained to Company President Michael Bey-
doun regarding their payroll checks being returned for insuffi-
cient funds. I concluded there was no credible evidence that
the Company discharged Erin Hardcastle-Mehlhose for incom-
petence and that her husband Matthew Mehlhose voluntarily
thereafter quit his employment.
I certify the accuracy of the portion of the transcript, as cor-
rected,3 pages 177 to 196 containing my Bench Decision and I
attached a copy of that portion of the transcript, as corrected, as
Appendix A.
CONCLUSION OF LAW
Based on the record, I find the Company is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act; that it violated the Act in the particulars and
for the reasons stated at trial and summarized above, and that
its violations have affected and, unless permanently enjoined,
will continue to affect commerce within the meaning of Section
2(2) and (6) of the Act.
REMEDY
Having found the Company has engaged in certain unfair la-
bor practices, I find it must be ordered to cease and desist and
to take certain affirmative action designed to effectuate the
policies of the Act. The Company having discriminatorily
discharged its employees Erin Hardcastle-Mehlhose and Mat-

1 I shall refer to counsel for the General Counsel as Government
Counsel and the position he advocates as the Government’s position.
2 I shall refer to the Respondent as the Company.
3 I have corrected the transcript pages containing my Bench Decision
and the corrections are as reflected in attachment Appendix C (omitted
from publication).
thew Mehlhose I shall recommend they, within 14 days from
the date of the Board’s Order, be offered full reinstatement to
their former jobs, or if their jobs no longer exist to substantially
equivalent positions, without prejudice to their seniority, or any
other rights or privileges previously enjoyed, and make them
whole for any loss of earnings or other benefits suffered as a
result of the discrimination against them with interest. I shall
recommend the Company, within 14 days of the Board’s Order,
remove from its files any reference to the discharge of Erin
Hardcastle-Mehlhose and Matthew Mehlhose and within 3 days
thereafter notify them in writing that this has been done and
that their discharge will not be used against them in any man-
ner. Back pay shall be computed in accordance with F.W.
Woolworth Co., 90 NLRB 289 (1950), and interest shall be
computed in accordance with New Horizons for the Retarded,
283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following
ORDER
The Company, National Specialties Installations, Inc., De-
triot, Michigan, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Discharging employees because they concertedly com-
plain to the Company regarding their payroll checks being re-
turned for insufficient funds and in order to discourage employ-
ees from engaging in these or other concerted protected activi-
ties.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of their rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days of the date of the Board’s Order offer
Erin Hardcastle-Mehlhose and Matthew Mehlhose reinstate-
ment to their former jobs or if their former jobs no longer exist
to substantially equivalent jobs without prejudice to their sen-
iority or other rights or privileges enjoyed, and make them
whole for any lost wages and benefits they suffered as a result
of their discharge.
(b) Within 14 days of the date of the Board’s Order remove
from Erin Hardcastle-Mehlhose’s and Matthew Mehlhose’s
files any reference to their unlawful discharge and within 3
days thereafter notify them in writing this has been done and
that their discharge will not be used against them in any man-
ner.
(c) Preserve, and within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents all payroll records, Social Security payment re-
cords, time cards, personnel records and reports, and all other
records, including an electronic copy of the records if stored in
electronic form, necessary to analyze the amount of any back
pay due under the terms of the Board’s Order.
(d) Within 14 days after service by the Regional Director of
Region 7 of the National Labor Relations Board, post at its
Detroit, Michigan facility copies of the attached notice marked
NATIONAL SPECIALTIES INSTALLATIONS, INC. 193
“Appendix B.”4 Copies of the notice, on forms provided by the
Regional Director for Region 7 after being signed by the Com-
pany’s authorized representative shall be posted by the Com-
pany and maintained for 60 consecutive days in conspicuous
places, including all places where notices are customarily
posted. Reasonable steps shall be taken to ensure that the no-
tices are not altered, defaced, or covered by any other material.
In the event that during the pendency of these proceedings the
Company has gone out of business or closed the facility in-
volved in these proceedings, the Company shall duplicate and
mail, at its own expense, a copy of the Notice to Employees, to
all employees employed by the Company on or at any time
since July 14, 2003.
(e) Within 21 days after service by the Region, file with the
Regional Director for Region 7 of the National Labor Relations
Board sworn certification of a responsible official on a form
provided by the Region attesting to the steps that the Company
has taken to comply.
B E N C H D E C I S I O N
This is my decision in National Specialties, Installations Inc.,
herein the company, Case 7–CA–46698.
The government alleges the company by its president, Mi-
chael Beydoun, discharged its employees Erin Mehlhose,
herein Erin Mehlhose, or Charging Party Mehlhose, and Mat-
thew Mehlhose on or about July 14, 2003 because they concert-
edly complained to the company on that date regarding their
payroll checks being returned for insufficient funds.
It is alleged company president Beydoun discharged the em-
ployees in question to discourage employees from engaging in
these or other protected concerted activities.
The government alleges the company’s actions violate Sec-
tion 8(a)(1) of the National Labor Relations Act, as amended,
herein Act.
On the entire record, including my observation of the wit-
nesses and after considering opening and closing statements by
government and company counsel, I shall make the following
Findings of Fact and Conclusions of Law.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The company is a corporation with an office and place of
business in Detroit, Michigan where it is engaged in the con-
struction industry as a commercial builder of gasoline stations.
During the calendar year ending December 31, 2002, a rep-
resentative period, the company derived gross revenues in ex-
cess of $500,000.00 and purchased and received at its Detroit,
Michigan facility goods valued in excess of $50,000.00 from
other enterprises, including Redford Building Supply and
Livonia Building Materials, each located within the State of
Michigan, and each of which other enterprises had received

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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
these goods directly from points located outside the State
of Michigan.
During this same time, the company in conducting its busi-
ness operations provided services in excess of $50,000.00 to
various customers, each of which itself was directly engaged in
interstate commerce.
The company admits and I find that at all times material
herein it has been and is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
As noted, Michael Beydoun is president of the company and
is an admitted supervisor and agent of the company within the
meaning of Section 2(11) and 2(13) of the Act.
This case, as in most cases, requires credibility resolutions.
In arriving at my credibility resolutions, may I state again that I
carefully observed the witnesses as they testified and I have
utilized such in arriving at the facts herein.
I have also considered each witness’ testimony in relation to
other witnesses’ testimony and in light of the exhibits presented
herein.
If there is any evidence that might seem to contradict the
credited facts I have set forth, I have not ignored such evidence,
but, rather, have discredited or rejected it as not reliable or
trustworthy. I have considered the entire record
in arriving at the facts herein.
A bit more about the company. The company is a construc-
tion type business primarily building gasoline service stations.
The company has been in business since the 1990’s and is
owned by its founder company President Beydoun. The com-
pany’s workforce varies from a low of approximately 10 to 15
employees to a high of approximately 40 employees, depending
on the number of projects the company has ongoing at any
given time.
The company is housed in an approximately 25,000 square
foot building with work space for various crafts, such as car-
penters and masonry employees. The facility also has an office
for company president Beydoun.
Matthew Mehlhose commenced working for the company at
the end of May or early June, 2003 as a driver/operator. Mat-
thew Mehlhose, for example, operated a backhoe, a dozer and a
loader at the company. Matthew Mehlhose obtained his job by
responding to a newspaper advertisement by the company for a
driver/operator.
Matthew Mehlhose learned company president Beydoun was
needing someone to help him in the office with some computer
problems. Matthew Mehlhose recommended company presi-
dent Beydoun consider hiring his wife Erin Mehlhose to assist
Beydoun with his computer problems.
Erin Mehlhose testified she faxed a resume and cover letter
to the company and was hired on June 20, 2003 as a temporary
From 1099 subcontractor for two days. Erin Mehlhose filled
out an employment application dated June 30, 2003, showing a
hire date as a regular employee effective June 20, Erin Mehl-
hose also filed the necessary W-4 forms at that time.
Erin Mehlhose who has a bachelor of arts degree from
Wayne State University and is a licensed residential builder to
testified various duties she performed for the company. Erin
Mehlhose described herself as an assistant for company presi-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD194
dent Beydoun. She explained she generated payroll checks
from the computer for Beydoun’s signature and did scheduling,
as well as projects for environmental concerns. Erin Mehlhose
testified she also reviewed blueprints, specifically referring to
blueprints for the Livonia Construction Projects. Erin Mehl-
hose testified she also noted changes made to the blueprints by
the company’s consultant firm A & M Consultants. Erin Mehl-
hose testified she also worked on financial statements company
president Beydoun needed with regard to some special financ-
ing he needed for the purchase of a particular specialty type
truck.
Erin Mehlhose testified that on Friday, July the 11th, 2003,
coworker Sean Cross came into the office angry because his
payroll check had been returned for insufficient funds. Cross
wanted Erin Mehlhose to re-issue him a check that would re-
place the one that had bounced. Erin Mehlhose told Cross she
could not issue or sign any replacement check.
According to Erin Mehlhose, employee John Sutherland was
also concerned about his payroll check being returned for insuf-
ficient funds.
Matthew Mehlhose testified he worked on one of the com-
pany’s projects on Saturday, July the 12th, 2003 because the
owner of the property where the company was constructing a
project did not believe work was progressing quickly enough.
On Saturday, July 12th, 2003, Erin Mehlhose testified she
received word from her husband’s bank that certain payroll
checks of she and her husband’s from the company was going
to be returned for insufficient funds and the bank wanted to
give them a heads up type notice that the checks were being
returned and their personal bank account would be impacted
accordingly.
The Mehlhoses testified they attempted to meet with com-
pany president Beydoun during the morning hours of July the
14th, 2003 to discuss the checks returned for insufficient funds,
but that he declined, saying that he had too much work that
needed to get done that morning.
According to the two, they met with company president
Beydoun that afternoon to discuss the “bad” returned checks.
They testified the meeting was long and that company president
Beydoun became angry and said he didn’t like it. The Mehl-
hoses asked that the bounced checks be replaced by cash be-
cause they did not want to have the checks continuing to
bounce. Beydoun declined to provide cash, insisting on any
replacements being checks.
According to the two Mehlhoses, company president Bey-
doun brought out a gun, waved it about, and said that was the
way things like this were handled in his country. According to
the two Mehlhoses, company president Beydoun fired them
both, stating I don’t want either one of you working anymore
for me. Matthew Mehlhose testified the gun company presi-
dent Beydoun waved about was a 40 caliber semi-automatic
weapon.
The Mehlhoses left, with Matthew Mehlhose returning on
Friday, July the 16th, 2003 to turn in his company issued cell
telephone.
Although a number of the checks that bounced were paid
eventually, the Mehlhoses testified they were never paid in full
for everything they were owed.
Erin Mehlhose testified company president Beydoun never at
any time prior to her discharge criticized her work or com-
plained about how she did things. Erin Mehlhose and company
president Beydoun worked in close proximity to each other at
the company.
Company president Beydoun testified he is the sole owner of
the company and does everything related to the company, such
as preparing bids for work, meeting with clients, inspectors,
city officials for permit approvals, dealing with subcontractors,
banks, and environmental officials. Beydoun testified he keeps
his company financial operations and business very private and
does not share that type of information with anyone, including
his own family members.
Company president Beydoun testified his field manager and
concrete specialist Amadora Camardo hired Matthew Mehlhose
after Mehlhose responded to a help wanted newspaper adver-
tisement placed by the company in early June, 2003.
Company president Beydoun testified Matthew Mehlhose re-
ferred his wife to the company as someone that could assist
Beydoun with his computer problems at the company. Bey-
doun testified his regular secretary had taken the summer of
2003 off from work for an extended vacation and time with her
family. Beydoun hired Erin Mehlhose at $20.00 per hour and
hired her just to help with his computer problems. Beydoun
testified she continued to work for the company, performing
various functions such as printing checks, preparing or attempt-
ing to prepare financial statements.
Company president Beydoun testified every project he gave
rin Mehlhose she would tell him she was on top of it, but never
seemed to get the job done. Beydoun testified he spoke with
Erin Mehlhose prior to her termination about her job perform-
ance.
Company president Beydoun specifically testified Erin
Mehlhose never met with building inspectors, nor did she dis-
cuss or work with blueprints, nor did she relay or discuss blue-
print changes brought out by his consultants A & M Consult-
ants. Beydoun testified the only thing related to environmental
type work that Erin Mehlhose performed was to pick up a pam-
phlet for him at an environmental agency.
Beydoun testified Erin Mehlhose was not an acceptable em-
ployee.
Company president Beydoun testified he spoke with Mat-
thew Mehlhose on July 12th, 2003 about Erin Mehlhose be-
cause she was Matthew’s wife and, presumably, he had some
control over her. Company president Beydoun described Mat-
thew Mehlhose as low class and Erin Mehlhose as high class.
Company president Beydoun testified he told Matthew
Mehlhose on July 12th, 2003 that Erin Mehlhose was not to
come back to work on Monday, July 14, 2003 because, 1, she
had taken subcontractors into his office, 2, she had messed up
his filings, and, 3, she had messed up his company’s financial
statement. According to Beydoun, Matthew Mehlhose an-
swered that was okay with him, but what about his, Matthew
Mehlhose’s, continued employment with the company. Bey-
doun testified he told Matthew Mehlhose he could continue to
work for the company.
Company president Beydoun testified he attempted to tele-
phone Matthew Mehlhose on Sunday, July 13, 2003 to insure
NATIONAL SPECIALTIES INSTALLATIONS, INC. 195
that Matthew Mehlhose had told Erin Mehlhose not to come to
work on Monday. Company president Beydoun testified that,
when he rrived at work on Monday, July 14, 2003, at around
approximately 8:00 A. M., he saw Matthew Mehlhose’s truck
in front of the company building with Matthew and Erin Mehl-
hose screaming at each other.
Company president Beydoun testified that the Mehlhoses
came into the building, with Erin, as usual, going to the rest-
room, and he spoke with Matthew Mehlhose. Company presi-
dent Beydoun asked Matthew Mehlhose what she, Erin Mehl-
hose, was doing there, to which Matthew Mehlhose responded
that he was afraid to tell her that Beydoun did not want her at
work anymore. Beydoun told Matthew Mehlhose that he, Mat-
thew, was needed on a job site and told him to come back that
afternoon, that he would have to let Erin Mehlhose go.
Beydoun said he allowed Erin Mehlhose to be there that
morning, but asked his two sons to work the computers so Erin
Mehlhose would not have access to the company’s computers.
Company president Beydoun testified he met with Erin and
Matthew Mehlhose around 2:00 P. M., July 14th, 2993. Bey-
doun testified he told the two Mehlhoses that Erin Mehlhose
had messed up his filings, his payroll and his financial state-
ment, and had brought people into his office and she was going
to have to go. According to Beydoun, Matthew Mehlhose re-
sponded by asking what about him. Beydoun told Matthew
Mehlhose he had no problem with him, that he could continue
to work. Matthew Mehlhose then asked if his wife could come
back in the future. They then walked out.
According to Beydoun, nothing else was said and no men-
tion was made of any payroll checks being returned for insuffi-
cient funds. Beydoun acknowledged he owns a 45 caliber
Glock type gun, but denied he pull it out or displayed it at the
meeting.
Beydoun testified Matthew Mehlhose never thereafter re-
turned to work at the company, although he, Beydoun, at-
tempted to contact Matthew Mehlhose on Matthew’s company
cell phone for the next three days. Beydoun testified Matthew
Mehlhose returned the company’s cell phone on July 17, 2003
along with the key to the backhoe. Beydoun asked Matthew
Mehlhose why he never returned to work and Matthew Mehl-
hose responded his wife did not want him working for Beydoun
anymore.
Company president Beydoun’s brother-in-law testified that
he observed Erin Mehlhose allow a job applicant into Company
president Beydoun’s office on one occasion and added that no
one was ever to go into Beydoun’s office unless Beydoun was
there.
The company’s cement specialist and field superintendent
testified he saw a subcontractor sitting in company president
Beydoun’s office on one occasion when Erin Mehlhose allowed
the subcontractor in.
Evidence was presented that the company eventually made
good on the two Mehlhoses’ bounced checks; however, it is
still disputed as to whether the company still owes the two
Mehlhoses any additional pay. I find it unnecessary, however,
to discuss such discrepancies, if any, with respect to pay in
order to resolve the issues herein.
Additionally, evidence was presented regarding some civil
lawsuits involving liens filed by the Mehlhoses against com-
pany president Beydoun and others. Again, I find it unneces-
sary to explore the lien filings in order to resolve the issues
herein.
The government’s position in this case is simple. The gov-
ernment contends two employees, Matthew and Erin Mehlhose,
spoke with management about wages and were discharged
immediately for doing so.
The company’s position is that Matthew Mehlhose was an
excellent employee and voluntarily quit his employment after
his wife Erin Mehlhose was terminated. The company’s posi-
tion with respect to Erin Mehlhose was that she was merely a
secretary and not a very capable one who messed up every
project she was given and was, accordingly, discharged.
The company’s position is that Erin and Matthew Mehlhose
never discussed wages with management prior to Erin Mehl-
hose’s discharge and Matthew Mehlhose’s voluntarily quitting.
At certain material times herein the company experienced a
number, perhaps in the hundreds, of its checks being returned
for insufficient funds. The evidence further establishes that
Matthew and Erin Mehlhose submitted certain of their payroll
checks, perhaps as many as three times, for payment. As I just
mentioned, there has been civil litigation between the parties
regarding liens placed on certain properties that grew out of the
paycheck concerns.
Numerous documents, depositions, and exhibits were made a
part of the civil litigation which has now been concluded. I
make mention of the civil litigation and the documents therein
only to note that the facts giving rise to this case took place
approximately a year ago and various of the records pertinent to
this case have been utilized in the civil case.
This case specifically turns on a resolution of the credibility
of the witnesses.
The events of July the 14th, 2003 are described one way by
the two Mehlhoses and in an entirely different way by company
president Beydoun. There is no way to reconcile the two ver-
sions. This is not a case where the facts just differ slightly and
you get two different versions. This is a case with certain criti-
cal points of which one side says took place, the other says it
never happened.
I listened very carefully as the three key witnesses herein tes-
tified.
Erin Mehlhose impressed me as an articulate witness who
was attempting to tell the truth as best she could. Erin Mehl-
hose responded well on cross-examination. She was sometimes
a bit argumentative. Nevertheless, I’m persuaded it was not an
effort on her part to misspeak the truth, but, rather, exhibited
her strong belief in the accuracy of her testimony. While I’m
persuaded she is a somewhat temperamental person or one who
has a bit of a temper, such disposition did not in my opinion
distract from her attempts to tell the truth. Erin Mehlhose on
cross-examination answered more than she was asked, but,
again, I’m persuaded it was an attempt to have the full se-
quence of events set forth, rather than any attempt on her part to
mislead or misstate the facts.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD196
Matthew Mehlhose testified in a very soft voice and at times
on dates seemed a bit confused, but his overall demeanor exhib-
ited truthfulness.
I credit the two Mehlhoses’ testimony when it is in conflict
with company president Beydoun’s testimony. I specifically
credit Erin and Matthew Mehlhose’s testimony that her hus-
band’s bank gave her a notification that certain payroll checks
paid to Matthew Mehlhose were going to be returned because
the company’s account had insufficient funds to cover it. I
credit that testimony notwithstanding the fact that the specific
letter referring to that was, perhaps, not produced in this pro-
ceeding. I’m persuaded that the number of exhibits that were
presented in the civil case and that the length of time between
the events in this case and the trial in this case that documents
may well have been misplaced with no unlawful motive at-
tached to them.
Knowing that, I am full persuaded that Erin Mehlhose did
not go to the meeting on July the 14th, 2003 with her husband
Matthew Mehlhose and meet with company president Beydoun,
as is admitted, and then fail to say anything about the bouncing
checks. Her disposition impresses me that she simply would
not have remained quiet. She impresses me as a person who
would speak up and I’m persuaded that she did at the meeting
between she, her husband, and company president Beydoun.
Another factor that persuades me that the checks were dis-
cussed at the July 14th meeting is that it is admitted that the
company was having problems with checks it issued bouncing
and the Mehlhoses were having to submit checks two and three
times for payment. That is, the same checks being submitted
for payment.
With respect to company president Beydoun, he impressed
me as an official in full control of his company and everything
pertaining to his company. He even stated he did not share his
company’s internal business with anyone, that he ran the show
completely. He wanted no one in his office. He didn’t share
his company business with other family members or, for that
matter, even with his wife.
With that in mind, I’m persuaded he read his original affida-
vit in the civil lawsuit wherein he stated in that affidavit that he
terminated both Matthew and Erin Mehlhose on July 14, 2003.
He then comes to trial and states he did not read his original
affidavit in the civil suit until sometime later when he changed
it to reflect that Matthew Mehlhose had quit, rather than being
terminated.
That bit of testimony by company president Beydoun was
very troubling for me. Specifically, when I evaluated it in light
of the fact that this person so thoroughly runs his business, he
has made the business what it is today single-handedly, I find it
unbelievable that he would execute such a thing as important as
an affidavit without reading it. That bit of information, al-
though later changed or corrected by company president Bey-
doun, spoke volumes about his overall credibility in my opin-
ion.
Looking at those facts then, the first question that must be
asked as I apply the facts I have credited as testified to by the
two Mehlhoses regarding their July 14th, 2003 meeting with
company president Beydoun is was their actions and meeting
concerted activity protected by the Act. That is, their meeting
with company president Beydoun in discussing wages, did that
constitute concerted activity and then activity that is protected
by the Act.
The Board in Meyers, M-e-y-e-r-s, Industries, 268 NLRB
493 (1984) noted that the concept of concerted action has its
basis in Section 7 of the Act. Section 7 of the Act in pertinent
part states: “employees shall have the right to self-organization
to form, join, or assist labor organizations to bargain collec-
tively through representatives of their own choosing and to
engage in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid and protection.”
The Board pointed out in the first Meyers case that, although
the legislative history of Section 7 of the Act does not specifi-
cally define concerted activity, it does reveal that Congress
considered the concept in terms of individuals united in pursuit
of a common goal.
The statute requires that activities under consideration be
concerted before they can be protected and not all concerted
activity is protected activity.
The Board in the first Meyers case set forth the following
definition of concerted activity: In general, to find an em-
ployee’s activity to be concerted, we shall require that it be
engaged in with or on the authority of other employees and not
solely by and on behalf of the employee himself. Once the
activity is found to be concerted, an 8(a)(1) violation will be
found, if, in addition, the Employer knew of the concerted na-
ture of the employees’ activity, the concerted activity was pro-
tected by the Act, and the adverse employment action at issue
was motivated by the employees’ protected concerted activity.”
The question of whether an employee has engaged in con-
certed activity is a factual one based on the totality of the evi-
dence. Was the activity that Erin and Matthew Mehlhose en-
gaged in concerted activity? I find it was. The two employees
went to management two discuss or complain about their pay-
checks bouncing. The fact they were husband and wife does
not detract from the concerted nature of their conduct because
both were employees of the company.
Did the company know of the concerted nature of their activ-
ity? Yes. The company could not help but know of the con-
certed nature of their activities because the two employees met
specifically with the owner and founder of the company to
discuss wages.
The key question: Was their concerted activity protected by
the Act? In terms of working conditions, perhaps, no other
item of employment is as important to employees as wages or,
in this case, the lack of wages as a result of bouncing checks.
It is clear without question that, when Erin and Matthew
Mehlhose met with Company president Beydoun on July the
14th to speak about the checks, they were engaging in con-
certed activity that is protected by the Act.
Did adverse action result against the two employees? Yes.
They were terminated immediately and I’m persuaded as testi-
fied to by the two Mehlhoses that they were both terminated.
They were told I don’t want you here anymore, and they left.
Next I turn to the issue of did the company establish its af-
firmative defense that it would have taken the action it did even
in the absence of any concerted protected activity on the two
employees’ part.
NATIONAL SPECIALTIES INSTALLATIONS, INC. 197
The company, in my opinion, failed to establish it would
have taken the same action it did in the absence of any con-
certed protected conduct on the part of the two Mehlhoses. The
credited evidence establishes company president Beydoun
never discussed with Erin Mehlhose any job deficiencies, real
or perceived, on her part prior to her discharge. I am fully per-
suaded the company had not expressed problems with Erin
Mehlhose prior to her going with her husband, a fellow em-
ployee, to complain to company president Beydoun about em-
ployee payroll checks bouncing for insufficient funds.
I’m fully persuaded the reasons advanced by company presi-
dent Beydoun for his discharge of Erin Mehlhose were merely
after the fact rationalizations by him in an attempt to justify his
actions or, at least, to obscure or hide his real reason for dis-
charging the two employees.
I’m persuaded and find that the discharge of employees Mat-
thew and Erin Mehlhose violated Section 8(a)(1) of the Act.
ORDER
I shall order that the company offer reinstate to the two
Mehlhoses to their former jobs or, if their former jobs no longer
exist, to substantially equivalent positions without prejudice to
their seniority or any other rights or privileges previously en-
joyed and the company shall make them whole for any loss of
earnings or other benefits suffered as a result of the discrimina-
tion against them with interest.
The company shall expunge from its records any reference to
their unlawful discharge and notify the two employees in ques-
tion that such as been done.
I shall direct that the company post a notice, which I shall
prepare and attach to my certification of this decision. The
court reporter will provide to me a copy of the transcript and to
the parties who request it, usually, within ten days of today or
ten working days of today. Once she has done that, I will take
the pages of the transcript that constitute my decision and make
any necessary corrections thereon and then I will certify to the
parties and the Board that this is my decision, and it is my un-
derstanding that, once I have certified my decision and the
Board has transferred my decision to and continued it before
the Board, that the period for appeal commences to run at that
point, but, for any parties wishing to take exceptions, please
rely on the Board’s Rules and Regulations as to when you are
to timely file any appeal, rather than on my assessment of when
it starts.
I can tell you clearly that I will certify the decision and issue
that to the parties. There is nothing further that the parties can
do in the interim before I have certified my decision because it
is not my final decision until it is certified.
Let me state again that it has been a pleasure hearing this
case and being in Detroit, Michigan and, with that, this trial is
closed.
(Whereupon, at 8:45 A. M., the hearing in the above-entitled
matter was closed)
APPENDIX B
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist any union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT discharge employees because they concertedly
complain to us regarding their payroll checks being returned for
insufficient funds.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
WE WILL, within 14 days of the Board’s Order, offer Erin
Hardcastle-Mehlhose and Matthew Mehlhose full reinstatement
to their former jobs or if their former jobs no longer exist to
substantially equivalent jobs without prejudice to their seniority
or other rights or privileges previously enjoyed; and, WE WILL
make them whole for any loss of earnings and other benefits
resulting from their discharge less any net interim earnings,
plus interest.
WE WILL, within 14 days of the Board’s Order, remove from
our files any reference to the discharge of Erin Hardcastle-
Mehlhose and Mathew Mehlhose, and WE WILL, within 3 days
there after, notify them in writing that this has been done and
that their discharge will not be used against them in any man-
ner.
NATIONAL SPECIALTIES INSTALLATIONS, INC.