Olympic Specialties

National Labor Relations Board - Board Decisions

Aug 11, 2000

331 N.L.R.B. 1008 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1008
V.I.P. d/b/a Olympic Specialties and International
Brotherhood of Electrical Workers, Local Union
357, AFL–CIO. Case 28–CA–15938
August 11, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS HURTGEN
AND BRAME
On June 2, 2000, Administrative Law Judge James L.
Rose issued the attached decision. The General Counsel
filed exceptions and a supporting brief.
The National Labor Relations Board has delegated 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 brief and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

Nathan W. Albright, Esq., for the General Counsel.
Jeffrey Ian Shaner, Esq., of Las Vegas, Nevada, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. This matter was
tried before me on April 11, 2000, at Las Vegas, Nevada, on
the General Counsel’s complaint which alleged that the Re-
spondent discharged its employee Timothy Fee because he had
engaged in union and other protected, concerted activity in
violation of Section 8(a)(3) and (1) of the National Labor Rela-
tions Act, as amended, 29 U.S.C. §151, et seq. The Respondent
generally denied that it committed any violations of the Act.
On the record as a whole including my observation of the
witnesses, briefs, and arguments of counsel, I make the follow-
ing
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. JURISDICTION
The Respondent is a Nevada corporation engaged in business
as an electrical contractor at various jobsites in Nevada includ-
ing one at Valley High School in Clark County, Nevada. Dur-
ing the course of doing business, the Respondent annually pur-
chases and receives from points outside the State of Nevada
goods, products, and materials valued in excess of $50,000. The
Respondent admits and I conduce that it is an employer en-
gaged in interstate commerce within the meaning of Section
2(2), (6), and (7) of the Act.

1 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance 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.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Electrical Workers, Local Un-
ion 357, AFL–CIO (the Union) is admitted to be, and I find, is
a labor organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
While there are some serious disputes (to be discussed be-
low), the parties agree to the general facts involved in this mat-
ter. Timothy Fee learned that the Respondent was hiring in-
stallers (electricians) via a newspaper ad and he filed an appli-
cation. The Respondent’s sole owner, Frank Beebe, interviewed
Fee and hired him as an installer (which basically consisted of
running conduit) at $18 per hour on the Valley High School
job. Fee started work on June 8, 1999.1 The Respondent had
three or four other installers on this job as well as Leadman
Joseph Montalvo.
In early July, Fee, and the others, received a $2-per-hour
wage increase because, according to Beebe, they had com-
plained about not being paid as much as other employees doing
the same work. About the same time, Beebe was contacted by
an official of the Clark County School system to inform him
that there had been a complaint that Beebe was not paying his
employees appropriately under some kind of prevailing wage
law. Fee testified that he made the complaint, after first con-
tacting the Federal and State Departments of Labor; but there is
no basis to conclude that Beebe knew Fee initiated this com-
plaint. Further, Beebe met with employees and told them he
was in fact in compliance. There is no evidence that he was not,
though unexplained is the discrepancy between Fee’s wage rate
and the rates for alarm work ($16.78 per hour) and communica-
tion work ($24.39 per hour).
On July 20,2 while running conduit above a drop ceiling, Fee
accidentally drilled into a water pipe. According to Beebe, this
kind of thing happens occasionally and was not the reason he
fired Fee. However, Beebe learned from Montalvo that Fee did
cause unusual damage to the ceiling frame and refused to help
clean up the mess caused by the water and broken ceiling tiles.
In fact, Montalvo testified that when Fee caused the break,
he told him to clean up the mess, but Fee did not, leaving to do
other work. Then “maybe” a day or two later, Fee damaged
ceiling tile and hangers while enlarging the hole so it could be
fixed. While Montalvo’s testimony leaves a lot to be desired
concerning the timing of these events, it appears credible that
Fee in fact caused unreasonable damage.
Montalvo reported to Beebe that “the ceiling was damaged
and there was debris all over the place.” Beebe instructed Mon-
talvo to have Fee report to Beebe’s office at 7 a.m. the next
day. Fee showed up about 7:15 a.m. and was discharged. Beebe
1 All dates are in 1999, unless otherwise indicated.
2 Montalvo testified that this occurred “[m]aybe about the second
week in July, the 10th or the 12th.” Although Montalvo seemed credi-
ble, and no longer works for the Respondent, this date is questionable.
July 10 was a Saturday and, according to Fee’s hand kept record, he did
not work. Fee worked July 12, but again, according to his record, had a
typically full day of production in 6.5 hours. On the other hand, again
according to Fee’s record, on July 20, he had minimal production in 8
hours, indicating that he spent substantial time doing something other
than running conduit. Fee’s records tend to support Beebe’s testimony
that the waterpipe incident occurred on July 20, the day before he dis-
charged Fee. And I so find.
331 NLRB No. 127
OLYMPIC SPECIALTIES 1009
testified that the reason he discharged Fee was the damage Fee
had caused; but Beebe also testified that if Fee had been on
time for this interview and apologized he might not have fired
him.
Later that day, Beebe drafted a discharge letter to Fee (which
Fee denied receiving) wherein he give three reasons for the
termination: (1) the job damage, (2) reporting for work late the
last day, and (3) a “general bad attitude and causing friction
between other employees.”
Beebe testified that he learned about the supposed “friction
between employees” after discharging Fee and that this reason
probably should not have been in the letter. Montalvo testified
that in a phone conversation, Beebe said he fired Fee because
Fee had not been truthful with him.
Fee’s testimony that Beebe called him early in July and told
him to organize on his own time is denied as was Fee’s testi-
mony that Beebe told him during the discharge interview that
“you are giving me too much grief.”
In addition to contacting the Federal and State Labor De-
partments and the school district, Fee also testified that he
solicited some other employees to sign authorization cards for
the Union. But as with the other activity, he has no knowledge
that Beebe knew about this.
B. Analysis and Concluding Findings
Counsel for the General Counsel correctly notes that the ba-
sic elements of proof in a discriminatory discharge case are:
protected activity by the alleged discriminatees, employer
knowledge of such activity, employer animus against such ac-
tivity and such activity motivated the discharge. Since there is
rarely direct evidence of unlawful motive, such is typically
proved by inference from finding the first three elements and
finding that the purported basis for the discharge is so unrea-
sonable as to imply another basis. E.g., Shattuck Denn Mining
Corp. v. NLRB, 362 F.2d 466 (9th Cir. 1965). Similarly, com-
pany knowledge and animus can be inferred from all the cir-
cumstances such as the small size of the work force and other
unlawful activity. However, all these inferences can be rebutted
by direct credible testimony.
In essence, the General Counsel argues that the damage Fee
caused was not unusual, was not serious and would not nor-
mally be cause for discharge. Therefore, the true reason must
have been Fee’s protected activity in contacting the Federal and
State Departments of Labor and the school district, complaining
of his and other employees’ wage inadequacy and soliciting
authorization cards.
The circumstance of Fee’s discharge is suspicious and it is
possible that he was discharged for having engaged in pro-
tected, concerted, or union activity. However, I conclude that
the credible evidence is insufficient to prove such was the case.
First, there is no evidence of animus. The only direct evi-
dence of company knowledge that Fee engaged in any pro-
tected activity was his testimony that Beebe called him on Sun-
day and told him to organize on his own time, and statements
Fee claims Beebe made during the discharge interview. This
was denied by Beebe. In short, a critical element of this case
depends on crediting Fee’s testimony and discrediting Beebe’s.
I discredit Fee, especially such of his testimony which could
link whatever protected activity he engaged in with knowledge
by Beebe. I found Fee not to be worthy of belief. Not only am I
persuaded in this by his demeanor, but also by his testimony
concerning his application and his alleged telephone conversa-
tion with Beebe concerning organizing on his own time.
He testified that he went to work on June 8, the day he filed
his application and was interviewed by Beebe, notwithstanding
that his application was dated May 3, giving a first available
date for employment as May 4. Fee’s explanation was, “I often
make mistakes on dates.” I simply do not believe that on June 8
he would write May 3 and 4. Rather, I believe that he consid-
ered when he went to work in relation to filing the application
to be a material fact, and he sought to mislead me. More per-
suasive is Beebe’s testimony that Fee filed the application and
was interviewed on May 5, and then called Beebe repeatedly
until he was put to work in June.
Though I consider when Fee went to work in relation to his
application to be unimportant, Fee’s testimony, I conclude,
demonstrates a lack of credibility. In addition, Fee testified that
Beebe called him (or in another version, was told to call Beebe)
to discuss assigning Fee to another job, and he said,
“[O]rganize on your own time.” For Bebee to treat Fee as a
valued employee and at the same time warn him about engag-
ing in union activity during working hours, where there is no
evidence he did so, is not plausible.
Finally, I discredit Fee’s testimony that a week before his
discharge Beebe told him, “And here you are, you’re checking
on my license and that, giving me a bunch of grief.” There is no
indication how checking on Beebe’s license would motivate the
discharge, if in fact Fee did so. Further, Beebe credibly testified
that he first learned of such an assertion by Fee after the dis-
charge.
I discredit Fee and conclude that for the General Counsel to
prevail, the element of company knowledge would have to be
established by evidence independent of Fee’s testimony. I con-
clude there is an insufficiency of such evidence.
Montalvo testified that he knew Fee was organizing for the
Union, but he did not tell Beebe. Though Montalvo may have
been a supervisor, he is no longer employed by the Respondent
and was called a witness by the General Counsel. Thus it would
not be reasonable to impute his knowledge to Beebe, given his
specific, credible denial.
Beebe testified that he did not know of Fee’s involvement
with the Union or handing out authorization cards until Fee told
him during the discharge interview. I found Beebe forthcoming
and credible. For instance, he testified that Montalvo told him
that employees were signing authorization cards. But there is
no evidence that he knew Fee was passing them out, or even
signed one. And he testified that later in the morning after dis-
charging Fee, he met with other employees on the Valley High
job and asked what they thought “about it.” That is when he
learned that Fee had been causing friction among employees. I
conclude that the credible evidence is insufficient to establish
that Beebe knew Fee had been engaged in union activity at the
time of the discharge.
Nor is there sufficient evidence to conclude that any other
protected activity engaged in by Fee would have motivated
Beebe to discharge him. Beebe testified that Fee agreed to work
for $18 per hour then “three weeks later he had a problem with
that,” indicating some irritation. Nevertheless, there is no real
basis to conclude that Fee’s complaint about wages would mo-
tivate Beebe to discharge him. Several employees complained
about the wages they were receiving, and Beebe gave them a
$2-per-hour raise in order to keep them.
Finally, none of the others who complained about their
wages were discharged. Similarly, other employees signed
authorization cards, and were not discharged.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1010
I therefore conclude that the General Counsel failed to prove
that the Respondent discharged Timothy Fee in violation of the
Act and I shall recommend that the complaint be dismissed.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended3

3 1f no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
ORDER
The complaint is dismissed in its entirety.

mended 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 purposes.