Overley Electric Co.

National Labor Relations Board - Board Decisions

Dec 18, 1995

319 N.L.R.B. 1232 (N.L.R.B. 1995)

1232
319 NLRB No. 146
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 In adopting the judge’s finding that Union Organizer Wayne Di-
vine was discharged by the Respondent in violation of Sec. 8(a)(3)
of the Act, we reject the Respondent’s contention that Divine is not
an employee within the meaning of the Act. See NLRB v. Town &
Country Electric, Inc., 116 S.Ct. 450 (1995), in which the Court en-
dorsed the Board’s position that paid union organizers are employees
within the meaning of Sec. 2(3) of the Act.
3 Member Truesdale, unlike his colleagues, would find that
Overley’s statements to Coody violated Sec. 8(a)(1). In this regard,
Member Truesdale finds it unnecessary to decide whether Coody ex-
ercised independent judgment in hiring Divine. The Board has de-
clined to find craftsmen to be statutory supervisors merely because
they hired and fired their helpers. See, e.g., Gulf Bottlers, Inc., 127
NLRB 850, 859–861 (1960). As the only possible indicator of super-
visory status here is Coody’s hiring of Divine to help him as a la-
borer for the job, Member Truesdale would find that Coody has not
been shown to be a supervisor. He would, therefore, find that Coody
was an employee and that Overley’s statements were coercive and
unlawful.
Overley Electric Company, Inc. and International
Brotherhood of Electrical Workers, Local 480,
AFL–CIO. Case 26–CA–16541
December 18, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND TRUESDALE
On July 18, 1995, Administrative Law Judge Law-
rence W. Cullen issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel filed an answering brief and limited
cross-exceptions.
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 briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order.
The General Counsel has excepted to the judge’s
dismissal of the independent 8(a)(1) allegation of the
complaint. The General Counsel relies on the judge’s
finding that Woody Overley, the Respondent’s owner,
told Vince Coody that he did not like having Union
Organizer Wayne Divine on the job and that Coody
should discharge Divine. The General Counsel con-
tends that Overley’s statements are per se violations of
the Act.
We find no merit in the General Counsel’s excep-
tions. At the hearing, the Respondent presented testi-
mony that Overley authorized Coody to hire a laborer,
that Coody hired Divine, and that Coody exercised
independent judgment in doing so. The General Coun-
sel failed to rebut this evidence. In his decision, the
judge specifically found that ‘‘Divine was hired by
Coody.’’ Therefore, we conclude that the Respondent
has satisfied its burden of proving that Coody was a
statutory supervisor under Section 2(11) of the Act.
Accordingly, Overley’s statements to Coody did not
‘‘interfere with, restrain, or coerce employees’’ within
the meaning of Section 8(a)(1).3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Overley Electric Company,
Inc., Vicksburg, Mississippi, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order.
Susan R. Greenberg, Esq., for the General Counsel.
William I. Gault Jr., Esq. (Phelps Dunbar), of Jackson, Mis-
sissippi, for the Respondent.
Sammy J. Yelverton, Assistant Business Manager and Orga-
nizer, of Jackson, Mississippi, for the Charging Party.
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge. This
case was heard before me on March 21, 1995, in Jackson,
Mississippi, and was held pursuant to a complaint issued by
the Acting Regional Director for Region 26 of the National
Labor Relations Board (the Board) on January 5, 1995. The
complaint is based on a charge filed by International Brother-
hood of Electrical Workers Local Union, 480 (the Union or
the Charging Party) on December 19, 1994. The complaint
alleges that Overley Electric Company, Inc. (the Respondent)
violated Section 8(a)(1) of the National Labor Relations Act
(the Act) by threatening to discharge an employee on or
about September 16, 1994, because of his membership in the
Union and activities on behalf of the Union. The complaint
also alleges that Respondent violated Section 8(a)(1) and (3)
of the Act by terminating employee Wayne Divine on or
about September 16, 1994, because of his support of the
Union and engagement in concerted activities and to discour-
age employees engaging in these activities. The complaint is
joined by the answer of the Respondent filed on January 13,
1995, in which it denies the commission of any violations of
the Act and asserts as affirmative defenses the alleged failure
of the complaint to state a claim on which relief may be
granted, the 6-month statute of limitations for the filing of
a charge contained in Section 10(b) of the National Labor
Relations Act, alleged ‘‘legitimate business reasons’’ for Re-
spondent’s ‘‘decision to discharge Wayne Divine,’’ that
‘‘Wayne Divine was not a bonafide job applicant or em-
ployee,’’ that ‘‘Wayne Divine was a paid union organizer
and, therefore, not protected by the National Labor Relations
1233OVERLEY ELECTRIC CO.
Act,’’ and that ‘‘Wayne Divine was over qualified for the
position in which he was employed.’’
On the entire record in this proceeding, including my ob-
servations of the witnesses who testified and after due con-
sideration of the briefs filed by the General Counsel and the
Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
A. The Business of Respondent
The complaint alleges, Respondent admits, and I find that
the Respondent was, and has been at all times material, a
corporation with an office and place of business in Green-
wood, Mississippi, where it has been engaged in electrical
contracting, that during the 12-month period ending Decem-
ber 31, 1994, it purchased and received at its facility goods
valued in excess of $50,000 directly from points outside the
State of Mississippi, and that it has been an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
B. The Labor Organization
The complaint alleges, Respondent admits, and I find that
the Union is, and has been at all times material, a labor orga-
nization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged Threat
No evidence was presented at the hearing concerning this
allegation and I will recommend its dismissal.
B. The Discharge of Wayne Divine
Respondent is an electrical construction business that is
owned and operated by Woody Overley. From June 1994
through January 1995, Respondent was an electrical sub-
contractor for Upchurch Plumbing on a project for the U.S.
Corps of Engineers at the Waterways Experiment Station in
Vicksburg, Mississippi. The president of Upchurch is the
brother-in-law of Woody Overley. Respondent did the elec-
trical connections for equipment installed by Upchurch
Plumbing and also did some relighting work in accordance
with the design plans. The project was in a building then in
use by the Corps of Engineers and the work was scheduled
area by area to permit the continued use of the building by
the Corps of Engineers while the project was ongoing. Con-
sequently, it was decided that Respondent required only two
full-time employees, one electrician and one laborer, and ad-
ditional employees as needed who were transferred from
other projects of Respondent as the need arose.
On September 12, 1994, Overley hired Vince Coody as the
full-time electrician to perform the electrical work at this job-
site. Coody was in the second year of a 5-year apprenticeship
program conducted by the Union. Coody did not reveal his
union affiliation to Overley. Coody testified that he accepted
the job in order to organize Respondent’s employees and to
gain employment. He testified, ‘‘I was also looking for a job,
not just to salt it. I was looking to work.’’ ‘‘Salting’’ is a
term for an organizing tactic that has in recent years been
utilized by IBEW organizers and members to gain employ-
ment with nonunion employers and then attempt to organize
their employees on behalf of the IBEW or a local union
thereof. In the instant case, Coody had cleared his employ-
ment with Wayne Divine, assistant business manager and or-
ganizer for the Union, prior to accepting the position with
Respondent. Union members are not permitted to work for
nonunion contractors in the absence of permission obtained
from the Union.
At the time Overley hired Coody he told Coody to ‘‘find
someone’’ to help him as a laborer for the job. Coody tele-
phoned Divine and told him he needed to hire a laborer. Di-
vine told Coody he would fill the position. Divine was hired
by Coody and commenced work on Respondent’s project as
a laborer on September 15, 1994. Divine testified that he in-
tended to perform the work of a laborer for which he was
hired and to organize Respondent’s employees. Divine testi-
fied that ‘‘salting’’ is ‘‘the systematic placement of union
electricians on non-union jobs to try to convert the employ-
ees and try to get the contractors signatory to our agree-
ment.’’ Divine testified that this was his second effort at salt-
ing. On his first day of employment, Divine worked as a la-
borer and helped Coody on the job using Coody’s hand tools
in doing so. Divine performed only the work of a laborer as
opposed to that of an electrician and did not wear tools on
the job.
On September 16, 1994, Coody and Divine also worked
as an electrician and laborer, respectively, and were joined
on that date by Wayne Lessley and Billy Ray Kinds who
were sent from Respondent’s Greenwood, Mississippi head-
quarters to assist. Coody was paid as an electrician at the
rate of $15.48 per hour whereas Divine and Kinds were clas-
sified as laborers and paid $8.65 per hour. Lessley, who was
a second-year apprentice, was classified as an apprentice and
paid the same hourly rate of $8.65. All four employees
worked together and Lessley performed the work of an elec-
trician with help from Kinds. Lessley also authorized the
purchase of supplies that were charged to Respondent’s ac-
count. Lessley also had worked on other projects of Re-
spondent and was paid as an electrician rather than as a la-
borer. He also drove Respondent’s truck, which contained
Respondent’s drill set and other tools of the electrical trade.
On September 16, Divine wore a union T-shirt to work.
Shortly before lunch, Lessley told Divine that Woody
Overley had arrived at that jobsite and offered to introduce
Divine to Overley, which he did. Lessley returned to the area
where the employees were working and according to
Coody’s unrebutted testimony told Coody and Kinds, ‘‘I got
out of there. I don’t want to see the fireworks.’’ Coody testi-
fied that ‘‘He [Overley] done already told us prior to that he
didn’t like unions.’’
According to Divine, whose testimony I credit, he intro-
duced himself as an ‘‘organizer for Local 480, that Lessley
then left and he [Divine] told Overley he was there to orga-
nize his employees.’’ Overley told Divine he was a charter
member of the ABC (Associated Builders and Contractors),
which is a nonunion contractor’s association. Divine told
Overley this meant he was antiunion instead of just nonunion
and Overley replied, ‘‘That’s right.’’ Divine testified that he
told Overley that the rate of pay on this project was so close
to the union rate of pay that it would be easy for Respondent
to become a signatory to a contract with the Union and that
1234 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
during this conversation Overley talked about the numbers of
employees in the Union and stated there was a lot of elec-
trical work to be done. Overley testified that during this dis-
cussion Divine told him he was a journeyman electrician. Di-
vine denies he made such a statement. Under either cir-
cumstance, I find that Divine, at least in some manner, made
it known to Overley that he was a journeyman electrician.
It is improbable that the assistant business manager of the
Union would not be a journeyman electrician.
The following morning Overley telephoned Coody around
6:l5 a.m. and said, ‘‘What the hell is a IBEW 480 hand
doing on my job?’’ Coody testified that Overley sounded
upset and angry and that he told Overley that Divine had told
him he was trying to organize and that Overley then said,
‘‘I don’t like it. I want him off the job.’’ Coody testified he
asked, ‘‘What am I supposed to tell the man?’’ and that
Overley replied, ‘‘You just tell him we don’t need him no
more.’’ In accordance with Overley’s order, Coody dis-
charged Divine that day.
Overley testified that he directed Coody to discharge Di-
vine because he was a journeyman electrician and he was
concerned that he would subject him to sanctions under the
Davis Bacon Act by performing journeyman electrician work
rather than limiting himself to the duties of the laborer classi-
fication set out in his subcontract with Upchurch Plumbing
the prime contractor on the job. Overley denied that he or-
dered the discharge of Divine because of his union affili-
ation. In support of this position, Overley testified concern-
ing a prior incident on another Federal construction job cov-
ered by the Davis Bacon Act that sets the wage rates for the
jobs and the classifications of employees to be used on con-
struction jobs for Federal projects. According to Overley in
this incident he had received a citation because one of his
employees classified as a helper had worn tools and been
perceived as an electrician by Federal inspectors on the job.
In support of this position Respondent called Vice President
Robert Upchurch of Upchurch Plumbing and Madeline
Grant, a retired GS-7 law clerk, who had conducted prelimi-
nary labor reviews with responsibility for giving advice on
the effects of the Davis Bacon Act on the project. Upchurch
testified concerning the adverse consequences on future gov-
ernment contract opportunities should a contractor be deemed
unsatisfactory. Grant testified to her position that if a laborer
carries a tool of the trade, he must be paid as an electrician
and that she had advised Upchurch and Overley of this at a
preproject meeting held in May 1994. As the General Coun-
sel notes in her brief, there is no support for this position in
the Davis Bacon law or regulations entered into evidence at
the hearing.
Moreover, as also established by the evidence at the hear-
ing, Overley used Wayne Lessley as an apprentice electrician
on the project to help Coody although Lessley had pre-
viously worked as a journeyman electrician on other of Re-
spondent’s projects. Furthermore, when Chris Montpelier
who was later employed as a laborer on this job wore tools
on a tool belt and Respondent was informally cited for this,
no action was taken against Montpelier, but he was rather
merely told to put the tools back in the truck.
Analysis
I find that the General Counsel has established a prima
facie case of a violation of Section 8(a)(1) and (3) of the Act
by Respondent by its discharge of employee Wayne Divine.
Initially, I find that Divine was at all times material an
‘‘employee’’ as encompassed in the Act and protected by
Section 7 of the Act. Although it is true that Divine is a full-
time paid assistant business manager for the Union, he was
nonetheless an employee under applicable Board law not-
withstanding his status as a paid union organizer. Although
it is undisputed that Divine is a ‘‘salt’’ and accepted employ-
ment in part to organize Respondent’s employees, this did
not serve to remove him from the protection of the Act as
an employee. There is no evidence nor contention that Di-
vine did not adequately perform his job as a laborer for
which he was hired by Coody pursuant to Overley’s direction
to get a helper. There was no evidence of harassment or any
unlawful or improper activities engaged in by Divine.
Thus, Divine’s status as an employee entitled to the pro-
tections of the Act, notwithstanding his status as a paid union
organizer, is supported by Board law that holds that paid
union organizers are employees within the meaning of Sec-
tion 2(3) of the Act. Sunland Construction Co., 309 NLRB
1224, 1230 (1992); H. B. Zachary Co., 289 NLRB 838
(1988), enf. denied 886 F.2d 70 (4th Cir. 1991).
It is recognized that there is disagreement among the Cir-
cuit Courts of Appeal on this issue. In Town & Country
Electric, 34 F.3d 625 (8th Cir. 1994), denying enf. 309
NLRB 1250 (1992), petition for cert. granted 116 S.Ct. 450
(1995), the Supreme Court granted certiorari following the
decision of the Eighth Circuit Court of Appeals that a paid
union organizer was not a bonafide employee. See Willmar
Elec. Service, 968 F.2d 1327, 1329–1331 (D.C. Cir. 1992);
NLRB v. Henlopen Mfg. Co., 599 F.2d 26, 30 (2d Cir. 1929);
and Escada (USA), Inc. v. NLRB, 970 F.2d 898 (3d Cir.
1992), in which the District of Columbia and Second and
Third Circuits have agreed with the Board’s position and
H. B. Zachary, supra; Ultrasystems Western Constructions v.
NLRB, 18 F.3d 251, 255 (4th Cir. 1994); NLRB v. Elias
Brothers Big Boy, Inc., 327 F.2d 421, 427 (6th Cir. 1964);
and Town & Country, supra, in which the Fourth, Sixth, and
Eight Circuits have held to the contrary.
Having decided that Divine was an employee entitled to
the protections of the Act, I now turn to the analysis of the
testimony and the elements of the case as guided by Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1991), cert. denied 455 U.S. 989 (1982). I credit the testi-
mony of Coody and Divine as set out above over that of
Overley concerning the reasons for the discharge of Divine.
It is thus clear that the General Counsel has established a
prima facie case. Divine made it known to Overley that he
was a union organizer intent on organizing Respondent’s em-
ployees on behalf of the Union and was thus engaged in pro-
tected concerted activity including a request of Overley that
Respondent become a signatory to a contract with the Union.
Overley was motivated solely by his antiunion animus to-
ward the Union in directing Coody to discharge Divine in
order to remove a known union organizer from the jobsite.
The discharge of Divine had the inevitable effect of discour-
1235OVERLEY ELECTRIC CO.
1 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
2 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
National 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.’’
aging union membership. Downtown Toyota, 276 NLRB 999,
1014 (1985).
I find that the Respondent has failed to rebut the prima
facie case established by the General Counsel by the prepon-
derance of the evidence. Rather, I find the reason asserted by
the Respondent for Divine’s discharge was pretextual as I do
not credit Overley’s testimony that he was concerned with
Divine’s journeyman status as an electrician and possible ad-
verse effect on his rating by the Federal government as an
employer under the Davis Bacon Act. As noted by the Gen-
eral Counsel, in addition to Coody’s testimony that Overley
pointed only to Divine’s status as a union organizer as the
reason for the discharge, Respondent employed Lessley as an
apprentice on the job although Lessley had worked prior to
this as an electrician for Respondent on other jobs. Further-
more no action was taken against Montpelier when he did
wear tools on the job while employed as a laborer. Moreover
it would have been a simple matter to direct Divine not to
wear tools or perform electrician’s work on the job if this
had in fact been Respondent’s true concern. I find that the
reasons advanced by Respondent for discharging Divine were
pretextual. See Limestone Apparel Corp., 255 NLRB 722
(1981). I reject Respondent’s asserted affirmative defenses
including its Section 10(b) defense for lack of proof.
CONCLUSIONS OF LAW
1. The Respondent, Overley Electric Company, Inc., is an
employer within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent did not violate the Act by issuing an unlaw-
ful threat to its employees.
4. Respondent violated Section 8(a)(1) and (3) of the Act
by its discharge of its employee Wayne Divine.
5. The above-unfair labor practice in connection with the
business engaged in by Respondent has the effect of burden-
ing commerce within the meaning of Section 2(6) and (7) of
the Act.
REMEDY
Having found that the Respondent has violated the Act, it
shall be ordered to cease and desist from, and to take certain
affirmative actions, including the posting of an appropriate
notice, designed to effectuate the purposes of the Act, and
including the recision of its unlawful discharge of its em-
ployee Wayne Divine and to reinstate Divine to his former
position or, if his former position no longer exists, to a sub-
stantially equivalent one and to make him whole for all loss
of pay and benefits, including seniority and other rights and
privileges sustained by him as a result of the unlawful action
taken against him. Backpay and benefits shall be with inter-
est as computed in the manner prescribed in F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest as prescribed
in New Horizons for the Retarded, 283 NLRB 1173 (1987).
Respondent shall also remove from its records all references
to the unlawful actions taken against Divine and inform him
in writing that this has been done and that such actions shall
not be used against him in any other manner in the future.
Respondent shall also preserve all necessary records for com-
puting backpay and benefits and make them available to the
Regional Director for Region 26 of the National Labor Rela-
tions Board, or his representative.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended1
ORDER
The Respondent, Overley Electric Company, Inc., Green-
wood, Mississippi, its officers, agents, and representatives,
shall
1. Cease and desist from
(a) Discharging its employees because of their engagement
in protected concerted activities on behalf of the Union and
their fellow employees.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative actions necessary to ef-
fectuate the policies of the Act.
(a) Rescind its unlawful discharge of employee Wayne Di-
vine and offer him full reinstatement to his former position
or, if his former position no longer exists, to a substantially
equivalent position. Make him whole for all loss of pay and
benefits and other rights and privileges, including seniority
sustained by him, with interest as prescribed in the remedy
section of this decision, as a result of the unlawful action
taken against him by Respondent.
(b) Remove from its records all reference to the unlawful
actions taken against employee Wayne Divine and advise
him in writing that this has been done, and that such unlaw-
ful acts shall not be used against him in any manner in the
future.
(c) Preserve and, on request, make available to the Board
or its agents, for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records necessary to ana-
lyze the amount of backpay due under the terms of this
Order.
(d) Post at its facility, copies of the attached notice marked
‘‘Appendix.’’2 Copies of the notice, on forms provided by
the Regional Director for Region 26, after being signed by
the Respondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that 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 Respondent has
taken to comply.
The complaint is otherwise dismissed.
1236 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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 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 representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discharge our employees because of their
support of a union or their engagement in union activities.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL rescind our unlawful discharge of Wayne Divine
and offer him full reinstatement to his former position or, if
his former position no longer exists, to a substantially equiv-
alent position and WE WILL make him whole for all loss of
earnings and benefits and other rights and privileges sus-
tained by him including seniority, because of our unlawful
conduct, with interest, as a result of our unlawful discharge
of him.
WE WILL remove from our records any reference to the
unlawful discharge of Wayne Divine and will inform him in
writing that this has been done and that said unlawful con-
duct will not be used against him in any manner in the fu-
ture.
Our employees have the right to join and support Inter-
national Brotherhood of Electrical Workers, Local 480,
AFL–CIO or to refrain from doing so.
OVERLEY ELECTRIC COMPANY, INC.