North American Dismantling Corp.

National Labor Relations Board - Board Decisions

Apr 30, 2004

341 N.L.R.B. 665 (N.L.R.B. 2004)

NORTH AMERICAN DISMANTLING CORP. 665
North American Dismantling Corp., North American
Demolition Corp. and Jeffrey G. Powell. Case 7–
CA–39923
April 30, 2004
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
This case, on remand from the United States Court of
Appeals for the Sixth Circuit,1 presents the issue of
whether the Respondent established an affirmative de-
fense under Wright Line2 that Jeffrey Powell, who was
discharged on May 9, 1997,3 would have been denied
reemployment on May 22, on the basis of his misconduct
even in the absence of his protected, concerted activity.
The Board’s original decision, reported at 331 NLRB
1557 (2000), adopted an administrative law judge’s find-
ings that the Respondent violated Section 8(a)(1) of the
Act by its discharge on May 9 of three employees: Jef-
frey G. Powell, Robert W. Giltrop, and Jayson Zeitz.
The Board also ordered the Respondent to offer the dis-
charged employees reinstatement and make them whole
for any loss of earnings and other benefits they may have
suffered as a result of the unlawful discharges.
On cross-petitions for enforcement and review, the
court, on April 12, 2002, affirmed the Board’s findings
and conclusions as to employees Giltrop and Zeitz. The
court agreed that Giltrop, Zeitz, and Powell had engaged
in protected activity on May 9, and that, based on state-
ments by Supervisor Daniel Borashko, they had a rea-
sonable basis to believe they had been fired.4 The court
denied enforcement as to Powell, however, holding that
the “NLRB had failed to make any finding as to the
Companies’ affirmative defense” that “Powell would
have been fired for attempting to steal company business
even had he not engaged in protected concerted activity.”
35 Fed. Appx. at 138.
On August 29, 2002, the Board advised the parties that
it had decided to accept the court’s remand and invited
the parties to file statements of position regarding the
issue raised by the court’s remand. The General Counsel
and the Respondent filed statements of position.

1 North American Dismantling Corp. v. NLRB, 35 Fed. Appx. 132
(2002) (unpublished decision); 170 LRRM (BNA) 2224 (2002).
2 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983).
3 All subsequent dates are 1997 unless indicated otherwise.
4 The court’s enforcement of the Board’s Order as to employees Gil-
trop and Zeitz was finalized by the court’s judgment, dated May 22,
2002.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
We have reviewed the entire record, including the par-
ties’ statements of position,5 in light of the court’s re-
mand, which the Board accepts as the law of the case.
We adhere to our original holding that Powell was dis-
charged on May 9 for engaging in protected concerted
activity. We find merit in the Respondent’s affirmative
defense, however, to the extent that we conclude, as ex-
plained below, that the Respondent has established that it
would have denied reemployment to Powell on May 22
because he had attempted to steal company business.
Accordingly, as the court contemplated, we find that
“Powell is only entitled to back wages for the period be-
tween being fired at the job site and requesting employ-
ment [on May 22] in his call to Marcicki’s office.” 35
Fed. Appx. at 138.
The Respondent’s Wright Line Defense
At the outset, we note that the court remanded for con-
sideration of the issue of whether Powell would have
been terminated on May 9, 1997, on the basis of his al-
leged misconduct even in the absence of protected activ-
ity. As to that issue, we conclude that the Respondent’s
defense fails. The Respondent did not learn of Powell’s
alleged misconduct until after May 9. Thus, that alleged
misconduct played no role in the discharge of May 9.
However, by the time of Powell’s request for rehire
(May 22), the Respondent was aware of Powell’s alleged
misconduct. If that misconduct was, by itself (i.e., apart
from Powell’s union activity), the basis for the refusal to
rehire, then Powell is only entitled to back wages for the
period between May 9 and 22.
We find merit in the Respondent’s position on this “af-
firmative defense.”
The Respondent’s affirmative defense is based on con-
versations that Powell had at the jobsite with Richard
Christie of Christie Construction Company, one of the
Respondent’s clients, on the morning of May 9, the day
Powell was discharged. Powell complained to Christie
that the job was nonunion and that the employees should
be paid union scale. In that same conversation, Powell
also told Christie that he could do the job for less than
Christie was paying the Respondent. He said that he
could “put some people together and do this job for you
for cash.” Five or six times that same morning, Powell
repeated this offer to take over the job from the Respon-
dent.
Later on May 9, Donald Borashko, Respondent’s su-
pervisor, came to the jobsite, where he had a confronta-
tion with Powell and the other employees about their
5 Neither of the parties requested the record be reopened.
341 NLRB No. 95
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 666
wage rates. That confrontation led to their unlawful ter-
mination, after Borashko told the employees that if they
did not like their pay scale, they should leave and find
another job. Borashko admitted at trial that he did not
learn of Powell’s attempt to wrest the job from the Re-
spondent until after the three crewmen had left the job-
site.
On May 22, Powell telephoned the Respondent’s
owner and president, Rick Marcicki, seeking work. By
then Marcicki had learned of Powell’s attempt to take the
job away from the Respondent.6 Powell spoke only with
Marcicki’s secretary, Toni Francis. After she told Mar-
cicki that Powell was on the phone, Francis informed
Powell that Marcicki was busy, that he had no time to
talk to Powell, and that Powell no longer had a job with
the Respondent.
The Respondent contends that it was Powell’s repeated
attempts to “steal” work from the Respondent that led
Marcicki on May 22 to deny Powell’s inquiry about re-
hire, that this is the only reason for its refusal to rehire
Powell, and that this was the primary reason stated in a
June 25 letter to the Michigan Employment Security
Board challenging Powell’s claim for unemployment
benefits. The Respondent contends that Powell’s numer-
ous attempts to steal this job from his employer by offer-
ing to do the job for less for cash, and with a crew that
Powell was to provide was an act of disloyalty that vio-
lated its employee rules and warranted the Respondent’s
refusal to rehire him.
The General Counsel asserts that he has met his burden
of showing that Powell’s protected concerted activity
was the motive for his discharge on May 9 and that this
remained the reason why he was refused rehire on May
22. The General Counsel relies on the judge’s finding
that on May 22 Marcicki failed to mention Powell’s at-
tempt to steal work from the Company as a reason for
not rehiring him. The General Counsel also points out
that in the Respondent’s letter to the Michigan Employ-
ment Security Board, the Respondent also gave as a rea-
son for discharge that Powell “incited other employees to
walk off the job and refuse to work.” Therefore, the
General Counsel contends, the Respondent has not satis-
fied its affirmative Wright Line burden to show that it
would have refused to rehire Powell on May 22 even in
the absence of any protected activity.
Analysis
The court upheld the Board’s determination that Pow-
ell and the other employees were unlawfully terminated

6 Marcicki became aware of Powell’s conversations with Christie
when Marcicki visited the jobsite on the afternoon of May 9 after the
crewmen had departed.
by Borashko at the jobsite on May 9. 35 Fed. Appx. at
137. The issue on remand then is whether the Respon-
dent has established a Wright Line defense that it would
not have rehired Powell on May 22 for legitimate rea-
sons, because by then Marcicki had learned of Powell’s
misconduct in seeking to take work from the Respon-
dent. As the court stated, Powell’s “misconduct could
have been the basis for the Companies’ refusal to re-hire
him.” Id. at 138.
As the court discussed, in mixed-motive cases like this
one, to sustain its defense under Wright Line, an em-
ployer must show that it would have taken the same ad-
verse action regardless of the employee’s protected ac-
tivities. It does not have to prove that the adverse action
was based solely on legitimate grounds, to the exclusion
of any unlawful motivation.
It is well settled that Section 7 of the Act does not pro-
tect employee overtures to contractual interference. See
ATC/Forsythe & Associates, Inc., 341 NLRB No. 66
(2004); Kenai Helicopters, 235 NLRB 931, 936 (1978);
Associated Advertising Specialists, Inc., 232 NLRB 50,
54 (1977).7 To the extent that Powell sought to replace
the Respondent with a crew he would provide and
thereby interfere with its business relationship with
Christie, he was clearly engaged in unprotected conduct.
The Respondent’s June 25 letter to the Michigan Em-
ployment Security Board and its employee handbook (as
testified to by Marcicki at the unemployment hearing)
support the Respondent’s argument that it considers so-
licitation of a customer grounds for termination and that
Powell’s solicitation would have been grounds to refuse
him reemployment. Accordingly, we find that the Re-
spondent has met its Wright Line burden of establishing
that its refusal to rehire Powell on May 22 would have
occurred for legitimate reasons regardless of his May 9
protected activities.
Our colleague argues that the Respondent’s burden
was to prove that the discriminatee engaged in miscon-
duct for which the Employer would have disqualified any
employee from continued or future employment. She
concludes that the burden was not met. However, the
law of the case is that the Respondent simply had to
show that it would have refused to hire Powell for his
effort to steal work from the Respondent even if Powell
had not been a union adherent. We conclude that Pow-
ell’s effort to steal work was an act of disloyalty, and that
the Respondent would have refused to employ such a
disloyal person, irrespective of union activity.
Our colleague states that the record contains scant evi-
dence that the Respondent had an express policy or any
7 See also Mountain Shadows Golf Resort, 338 NLRB 581 (2002).

NORTH AMERICAN DISMANTLING CORP. 667
past practice for dealing with attempts to steal business,
and she notes that the record contains no evidence that
the Respondent had previously confronted a similar
situation.
With respect to the quantum of evidence, we note that
all of the evidence that was introduced was to the effect
that the Respondent considered solicitation of a customer
grounds for termination. No evidence was introduced to
contradict either the Respondent’s June 25 letter or Mar-
cicki’s testimony on this point at the unemployment
hearing. Thus, the affirmative evidence (that the Re-
spondent proscribed the type of conduct engaged in by
Powell), is unrebutted. Nor is this point vitiated by the
fact that the Respondent had not previously confronted
such conduct on the part of an employee. The fact that
no employee has previously engaged in such quintessen-
tially disloyal conduct cannot be used to force the Re-
spondent to hire such a disloyal person.
Our colleague also relies on the fact that, in the May
22 telephone conversation during which Powell was in-
formed that he no longer had a job with the Respondent,
Powell’s attempt to steal work from the Respondent was
not mentioned. However, Marcicki testified that he was
in the midst of preparing a bid due the next day when
Powell called. As noted above, Powell spoke only with
Marcicki’s secretary, Toni Francis. After conferring
briefly with Marcicki, she returned to the telephone and
told Powell that Marcicki was busy and had no time to
talk to Powell, and that as far as Marcicki was concerned,
Powell no longer had a job with the Respondent. In
these hectic circumstances, where Marcicki was commu-
nicating with Powell via support personnel, we do not
ascribe great significance to Marcicki’s failure to men-
tion Powell’s attempt to steal the Respondent’s business.
On this basis, we find that Powell is not eligible for re-
instatement and, in keeping with the court’s remand, any
backpay will be limited to the period between May 9
when he was unlawfully discharged and May 22 when
the Respondent refused to rehire him.8
Accordingly, we shall order the Respondent to make
Jeffrey Powell whole by paying him limited backpay for
the period given above.9

8 Because we accept the court’s decision as the law of the case, we
have analyzed the failure to rehire Powell under Wright Line, as in-
structed by the court’s remand order. We, therefore, need not reach the
remedial issue posed by the dissent under Marshall Durbin Poultry
Co., 310 NLRB 68, 69–70 (1993), enfd. in pertinent part 39 F.3d 1312
(5th Cir. 1994).
9 Pursuant to Rule 19 of the Federal Rules of Appellate Procedure,
the court’s judgment enforced the Board’s original Order as to Robert
W. Giltrop and Jayson Zeitz. Therefore, we have provided a new Order
and Notice specifically relating solely to Jeffrey Powell.
ORDER
The National Labor Relations Board orders that the
Respondent, North American Dismantling Corp. and
North American Demolition Corp., Lapeer, Michigan, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise disciplining their em-
ployees because of their exercise of protected activities.
(b) 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) Make Jeffrey G. Powell whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against him for the period from May 9 to 22,
1997.
(b) Preserve and, within 14 days of a request or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Within 14 days after service by the Region, post at
their facility in Lapeer, Michigan, copies of the attached
“Appendix”10 Copies of the notice, on forms provided
by the Regional Director for Region 7, after being signed
by the Respondents’ authorized representative, shall be
posted by the Respondents 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 Respondents to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that during the pendency of these proceedings, the
Respondents have gone out of business or closed the
facility involved in these proceedings, the Respondents
shall duplicate and mail, at their own expense, a copy of
the notice to all current employees and former employees
employed by the Respondent at any time since June 13,
1997.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
10 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 668
sponsible official on a form provided by the Region at-
testing to the steps taken to comply with this Order.

MEMBER LIEBMAN, dissenting in part.
I accept the court’s decision as the law of the case.
Respectfully, however, I disagree as to the proper inquiry
on remand. The majority analyzes the issue under
Wright Line:1 whether the Respondent has met its burden
to prove that it would have refused to rehire Powell even
absent his protected activity. That issue is one of liabil-
ity, however, and the complaint did not allege that the
Respondent violated the Act by refusing to rehire Jeffrey
Powell on May 22. Rather, the relevant inquiry is more
accurately analyzed as remedial: whether in light of af-
ter-acquired evidence (i.e., knowledge of Powell’s at-
tempt to “steal” the Respondent’s business) the Respon-
dent is required to offer reinstatement to Powell, who it
unlawfully terminated, and give him full backpay. See,
e.g., Smucker Co., 341 NLRB No. 10, slip op. at 2
(2004). In my view, it is.
It is well established that, if an employer claims a dis-
criminatee is not entitled to reinstatement and full back-
pay, it is the employer’s burden to prove that the dis-
criminatee engaged in misconduct for which the em-
ployer would have disqualified any employee from con-
tinued or future employment. See Marshall Durbin
Poultry Co., 310 NLRB 68, 69–70 (1993), enfd. in perti-
nent part 39 F.3d 1312 (5th Cir. 1994). The employer
must “establish that the discriminatee’s conduct would
have provided grounds for termination based on a preex-
isting lawfully applied company policy and any ambigui-
ties will be resolved against the employer.” John Cuneo,
Inc., 298 NLRB 856, 857 fn. 7 (1990). The Board will
not infer or assume that an employer would have dis-
qualified an individual based on the nature of his mis-
conduct. Id.
In my view, the Respondent has not met its burden of
proof: it has not proven that Powell engaged in miscon-
duct for which it would have disqualified any employee
from continued or future employment. Rick Marcicki
testified at the unfair labor practice hearing that “we have
rules,” and “that there are certain rules you don’t break.”
(Tr. 290.) But no rules were placed in evidence. His
testimony at the unemployment compensation hearing
was placed in evidence. There he referred to written
rules making solicitation of customers grounds for termi-
nation, but, again, no rules were placed in evidence. The
record, therefore, contains scant evidence that the Re

1 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983).
spondent had an express policy (e.g., a noncompetition
or duty of loyalty policy) or any past practice for dealing
with attempts to “steal” business. The record contains no
evidence that the Respondent had previously confronted
a similar situation.
Significantly, once faced with the situation, the Re-
spondent did not rely on the conduct in refusing to rehire
Powell. While Marcicki was aware of Powell’s conduct
by May 22, no mention of the conduct was made to Pow-
ell in denying his request for work. Apparently, the first
that the conduct was raised was before the Michigan Un-
employment Security Board. But neither that testimony
nor Marcicki’s testimony at the unfair labor practice
hearing, quoted above, are sufficient to sustain the Re-
spondent’s burden of proof, as articulated in Marshall
Durbin, supra, and John Cuneo, supra. Indeed, even
after the court’s remand on the issue of Powell’s entitle-
ment to reinstatement, the Respondent made no request
that the record be reopened so that it could introduce
evidence demonstrating, in accordance with Board prece-
dent, that Powell’s conduct would have been grounds for
termination based on a preexisting lawfully applied com-
pany policy.
Accordingly, I would affirm the Board’s original rem-
edy requiring that Powell be reinstated and given full
backpay.
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 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 behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT discharge or otherwise discipline our
employees because of their exercise of protected con-
certed activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the Act.

NORTH AMERICAN DISMANTLING CORP. 669
WE WILL make Jeffrey G. Powell whole for any loss of
earnings and other benefits suffered as a result of his
discharge, less any net interim earnings, plus interest for
the period from May 9 to 22, 1997.

NORTH AMERICAN DISMANTLING CORP.,
NORTH AMERICAN DEMOLITION CORP.