Stearns-Roger, Inc.

National Labor Relations Board - Board Decisions

Feb 26, 1976

222 N.L.R.B. 1096 (N.L.R.B. 1976)

1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stearns-Roger , Inc. and Richard Rowan. Case
27-CA-4377
February 26, 1976
DECISION AND ORDER
By CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On September 18, 1975, Administrative Law Judge
Henry S. Salim issued the attached Decision in this
proceeding . Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and the Respondent
filed cross-exceptions and a brief opposing the Gen-
eral Counsel's exceptions and in support of its cross-
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended , the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge but
only to the extent consistent with our decision below.
I. BACKGROUND
The Respondent is engaged in engineering con-
struction work at various locations. The operations
here involved were for the United States Army
Chemical Corps at its Rocky Mountain Arsenal and
required the services of various trades. The employ-
ees directly concerned in this proceeding, including
the Charging Party, were all laborers represented by
Local 6 of the Laborers' International Union of
North America. Around the middle of December
1974, petitions addressed to management requesting
that on December 24 there be no work were circulat-
ed among employees for their signature. Labor Fore-
man Andasola asked, among others, laborers Rowan,
Mercke, and Montoya to sign the petition. They re-
fused on the ground, they stated, that they wished to
work that day as they needed the money. Andasola
did not press them further with respect to the matter.
However, sometime thereafter General Labor Fore-
man Carlson, who was Andasola's superior, asked
the three employees to sign. He himself was anxious
to have December 24 off, and to overcome the em-
ployees' resistance told them that higher manage-
ment, which signed their checks, wanted them to sign
the petition, adding that they should not be rebels.
Montoya, on these representations, signed as a favor
to Carlson so as to get him "off the hook." Mercke
and Rowan proved more stubborn, but both subse-
quently signed after Carlson told them separately
that those who did not sign would be the first "down
the road" in the event of a layoff.
On December 21, Mercke, Rowan, Montoya, and
three other employees filed a grievance with the La-
borers Union, complaining that Andasola was un-
necessarily tough on employees on the job and that
employees were being improperly threatened with
layoff for refusing to sign the holiday petition. On
December 30, two union representatives came on the
jobsite and told several of the employees who had
signed the grievance that they would not process the
grievance until Andasola, who was on leave, re-
turned. There was a somewhat heated discussion
about that and other matters.' Carlson was present
during most of the time the union agents talked with
the employees.
In early January, the Respondent decided that a
layoff of laborers was necessary. On January 3, eight
were laid off, including Rowan, Mercke, Montoya,
and one other signer of the grievance. Selection of
the employees for layoff was made by Carlson with
perfunctory approval by Assistant Project Superin-
tendent Martin 2 All eight were recalled on January
17. On that date Foreman Andasola made a com-
ment to employee Engelbrecht about his "buddies"
being back and asked if Engelbrecht knew why they
had been laid off. Engelbrecht replied that he had
heard it was "about that grievance they had signed
against" him. Andasola agreed, adding that if Engel-
brecht wanted to hold on to his job he should "keep
his nose clean, too."
II. THE UNFAIR LABOR PRACTICES
The Administrative Law Judge found, and we
agree, that General Labor Foreman Carlson's state-
ment to employees that those who did not sign the
petition for the December 24 holiday would be the
first down the road in the event of a layoff was a
threat of discharge for refusing to engage in a con-
certed activity affecting terms and conditions of em-
ployment. It thus violated Section 8(a)(1) of the Act.
We also find that Foreman Andasola's statement to
employee Engelbrecht on January 17 that if he
wished to keep his job he should keep his nose clean
was an unambiguous threat of discharge if Engle-
brecht should file a grievance against Andasola and,
1 The grievance eventually was "administratively dropped" without ever
being processed.
2 Carlson stated he discussed who should be laid off with Foreman Hosel-
ton However, it is clear that the final decision was Carlson's. Furthermore,
Hoselton did not supervise either Mercke or Montoya Their immediate
foreman was Andasola who was on leave from December 23 to January 6,
and thus was not consulted concerning the layoff.
222 NLRB No. 165
STEARNS-ROGER, INC.
thus, also violated Section 8(a)(1) of the Act.3
Finally, we find, contrary to the Administrative
Law Judge and our dissenting colleague, that the lay-
off of Rowan, Mercke, and Montoya on January 3
was unlawful. The General Counsel claims not that
the layoff itself was unlawful, but rather that Rowan,
Mercke, and Montoya were included in the layoff by
Carlson for proscribed reasons 4 -that is, because
they, with others, filed the December 21 grievance
protesting, among other things, Carlson's threats to
make them sign the petition for December 24 as a
day off and Andasola's alleged harsh attitude as a
supervisor.'
In support of his position, the General Counsel,
first, points to the fact that the three had been en-
gaged on the project here involved longer than a
number of laborers not laid off and, second, he
claims that they were competent employees. Conse-
quently, he contends that their selection for layoff is
wholly inexplicable on economic grounds and that
the only plausible explanation for their being chosen
by Carlson for layoff was their common opposition
to signing the petition which was reflected in their
filing of the related grievance.
The Respondent contends, however, that their se-
lection was indeed economically motivated. In this
regard it relies primarily on Carlson's conclusionary
testimony that he had selected the three for layoff
because of their inadequate work performance, a
term which includes in his usage an employee's atti-
3 The Administrative Law Judge recommended that the allegation of the
complaint that Andasola uttered an unlawful threat be dismissed However,
it is clear from his Decision that in reaching his result he considered only
Andasola's conduct in circulating the December 24 petition-which con-
duct was, and there is no contrary allegation, wholly proper-and did not
consider at all the January 17 incident involving Engelbrecht , which is
based on the uncontradicted testimony of that employee
4 The Adnumstrative Law Judge in finding the layoff of Rowan, Mercke,
and Montoya not unlawful placed considerable emphasis on the fact, ex-
pressly conceded by the General Counsel , that Respondent 's decision to lay
off a number of laborers in early January was based solely on lawful eco-
nomic grounds. However, that fact is clearly of little consequence in decid-
ing if the selection of Rowan, Mercke, and Montoya was legitimate. As
noted in the facts set forth above , Carlson did not threaten he would con-
trive a layoff to get rid of employees that did not want to sign the petition,
but rather , when a layoff came along , such employees would be the first to
go-and that is obviously what did eventuate
5 Carlson testified that at the time around January 1 when he decided
whom to lay off he had no knowledge that the grievance by Rowan,
Mercke , Montoya, and others had been filed . However, the record shows
that Foreman Andasola knew on December 21 that the grievance was being
filed; also on December 30, when union agents came on the jobsite to
discuss, inter also, the grievance, Carlson was in the group standing with the
union agents. While he denies having heard at that time any mention of any
grievance , we note that the Administrative Law Judge found that a copy of
the grievance was handed to officials of Respondent by the union agents
when they came to the jobsite on that date . Furthermore, the testimony
elicited specifically with respect to the Respondent's receipt of the grievance
not only supports this finding,', which we adopt , but establishes that a copy
of the grievance was then handed to Carlson . Consequently, this finding in
effect discredits Carlson 's denial of ever having seen a copy of the grievance
before the time of the layoff.
1097
1
tude towards his work. However, he cited no exam-
ples of such poor performance and there is no evi-
dence in the record of any reprimands or other criti-
cism concerning the work or attitudes of these
employees. To the contrary, Foreman Andasola testi-
fied with respect to Mercke and Montoya, who were
in the group he supervised, that he had "a real good
relationship [with them], nothing wrong." Further-
more, the record shows that Rowan, Mercke, and
Montoya had worked on the Rocky Mountain Arse-
nal project considerably longer than several laborers
not laid off 6 and that they were, as their uncontra-
dicted testimony shows, given specified jobs and cer-
tain responsibilities not entrusted to many other la-
borers on the project. In short, the reason offered by
Respondent to justify the selection of Rowan,
Mercke, and Montoya is not only unsubstantiated
by, but is also contrary to, such evidence as there is
in the record concerning their competency. Conse-
quently, we find that the reason advanced by Carlson
for selecting Rowan, Mercke, and Montoya for lay-
off was a pretext, and, further, that their election re-
mains on the record before us unexplained by the
Respondent.
In these circumstances, we agree with the General
Counsel that the real -reason for the selection of Row-
an, Mercke, and Montoya grew out of their initial
opposition to signing the day-off petition and was
ultimately grounded in their filing the grievance com-
plaining about Carlson's threats and Andasola's con-
duct. Such conclusion is most compelling in view of
the following facts: Carlson alone selected Rowan,
Mercke, and Montoya for layoff; they initially anta-
gonized him by refusing to sign the holiday petition
and signed it only after he threatened them with
being chosen for layoff should one occur; Carlson's
threats became a subject of their grievance; he knew,
before the layoff, that the grievance protested such
conduct on his part and that, therefore, the matter of
the petition had not ended with their signing it, and
Andasola indicated to employee Engelbrecht that the
layoff of the three alleged discriminatees was related
to the filing of the grievance, a patently protected
activity. Accordingly, we find that employees Row-
an, Mercke, and Montoya on January 3, 1975, were
laid off for filing the December 21 grievance and that
their layoff therefore violated Section 8(a)(3) and (1)
of the Act.
6 To be sure , the Respondent was under no contractual obligation to
follow seniority in a layoff and there is no evidence that seniority as a
matter of practice was adhered to in layoffs . Nevertheless, in the circum-
stances here , the unexplained failure to follow seniority suggests some unex-
pressed motivation in the selection for layoff.
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE REMEDY
Having found that the Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(1) and (3) of the Act, we
shall order that it cease and desist therefrom and
take certain affirmative action designed to effectuate
the policies of the Act.
Having found that the Respondent has unlawfully
threatened its employees with layoff or discharge if
they refused to sign a certain petition or engaged in
certain protected concerted activities, we shall order
that it cease and desist from making such threats.
Having further found that the Respondent unlawful-
ly laid off Richard Rowan, Michael Ray Mercke,
and Carlos Montoya on January 3, 1975, we shall
order that the Respondent make them whole for any
loss of earnings they may have suffered by reason of
the discrimination against them by paying to each of
them a sum of money equal to that which he normal-
ly would have earned as wages from the date of his
layoff, January 3, 1975, to the date of his reinstate-
ment January 17, 1975,' less net earnings. Backpay
shall be computed in the manner set forth in F. W.
Woolworth Company, 90 NLRB 289 (1950), and shall
include interest as provided in Isis Plumbing & Heat-
ing Co., 138 NLRB 716 (1962). We shall also order
the Respondent to cease and desist from selecting
employees for layoff because they engage in certain
protected concerted activities.
CONCLUSIONS OF LAw
1. Stearns-Roger, Inc., is an employer within the
meaning of Section 2(2) of the Act, engaging in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. By threatening employees that they would be
the first selected for layoff if they did not sign the
petition for a day -off on December 24, 1974, Respon-
dent violated Section 8(a)(1) of the Act.
3. By threatening an employee with discharge if he
filed a grievance against a foreman, Respondent vio-
lated Section 8(a)(1) of the Act.
4. By selecting employees for layoff because they
filed a grievance protesting, inter alia, threats to force
them to sign a petition for a day off, Respondent
violated Section 8(a)(1) and (3) of the Act.
5. The above unfair labor practices are unfair la-
bor practices within the meaning of Section 8(a)(1)
and (3) of the Act.
6. The activities of the Respondent, set forth above
r Insofar as the record indicates-and there is no contrary contention-
the employees were recalled to their previous jobs with all their rights and
privileges.
and in the Administrative Law Judge's Decision have
a close, intimate, and substantial relationship to
trade, traffic, and commerce among the several
States and tend to lead to, labor disputes burdening
and obstructing commerce and the free flow of com-
merce.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Stearns-Roger, Inc., Denver, Colorado, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening any employee with layoff or with
other job reprisal should he refuse to join in concert-
ed activity concerning working conditions.
(b) Threatening any employee with discharge for
filing a grievance complaining about the conduct of a
supervisor.
(c) Selecting employees for layoff or otherwise dis-
criminating against them with respect to terms and
conditions of employment for filing a grievance pro-
testing certain conduct by their supervisors.
(d) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
Section 7 rights.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Make whole Richard Rowan, Michael Ray
Mercke, and Carlos Montoya for any loss of earnings
they may have suffered as a result of the discrimina-
tion against them, such backpay to be determined in
the manner set forth in the section of this Decision
entitled "The Remedy."
(b) Preserve and, upon 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 analyze the amount of
backpay due under the terms of this Order.
(c) Post at its offices, or any other regular places
of business, and at jobsites in the metropolitan Den-
ver, Colorado, area, copies _ of the attached notice
marked "Appendix." 8 Copies of the notice on forms
provided by the Regional Director for Region 27,
after being duly signed by an authorized representa-
tive of the Respondent, shall be posted by Respon-
dent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in
8In the event that 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 "
STEARNS-ROGER, INC. 1099
conspicuous places, including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 27, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
CHAIRMAN MURPHY, concurring in part and dissent-
ing in part:
I agree with the majority that the threats made to
employees by General Labor Foreman Carlson and
Labor Foreman Andasola violated Section 8(a)(1) of
the Act. However, contrary to the majority, I would
find as did the Administrative Law Judge that the
General Counsel has failed to prove that unlawful
reasons played any role in the selection of employees
Rowan, Mercke, or Montoya for inclusion in the
concededly legitimate economic layoff of January 3,
1975.
The complaint alleges -that the three employees
were selected because they filed, a grievance on De-
cember 21 protesting (a) Carlson's threats to employ-
ees intended to make them sign the petition seeking
December 24 as a day off, and (b) Andasola's alleged
tough attitude as a supervisor. I see several apparent
objections to finding such a violation.
First, Carlson, who did the selecting for layoff and
who is generally credited as a witness, testified that
around January 2, when he chose the employees, he
had no knowledge that the grievance had been filed.
To be sure, as the majority points out, the Adminis-
trative Law Judge states in passing in his Decision
that management was notified of the filing on De-
cember 30, when union agents came to the jobsite.
But no specific evidence is referred to in support of
that statement, and the only evidence that does sup-
port it is certain testimony of employees Mercke and
Montoya who were generally discredited. Thus, the
only direct evidence of Carlson's knowledge is the
testimony of unreliable witnesses. Clearly, such evi-
dence does not constitute substantial evidence.
Nor does Andasola's testimony that he was aware
on December 21 that the grievance was then being
filed provide a basis independent of Rowan's and
Montoya's testimony-for establishing knowledge on
the part of any other management representative of
the grievance. Andasola went on leave of absence on
December 23 and did not return until January 6.
There is undisputed testimony that during this peri-
od, which, of course, covers the time the employees
were selected for layoff, he did not notify Carlson or
anyone else in management that the grievance had
been filed and that he did not discuss the grievance
or any other matter with them. Consequently, in view
of this clear uncontradicted testimony, there is no
basis for inferring from Andasola's knowledge that
Carlson also had knowledge of the grievance. Thus,
as there is no competent evidence that Carlson had
any knowledge of the grievance- at the time he select-
ed the employees for layoff, the conclusion that they
were selected for layoff because they filed the griev-
ance is unwarranted.
Second, the layoff of Rowan, Mercke, and Monto-
ya does not at all follow, as the majority implies,
from the unlawful threats made by Carlson at the
time he circulated the petition seeking December 24
as a day off. At that time he stated that employees
who did not sign the petition would be the first down
the road in the event of a layoff. However, all three
employees did in fact sign, and in the case of Monto-
ya no illegal threats were needed to secure his signa-
ture, only Carlson's pleas to help him out. Accord-
ingly, there is no firm basis for assuming that Carlson
harbored any animosity toward Rowan, Mercke, and
Montoya at that time, since they complied with his
pleas and demands to sign the petition, thus thereby
placing themselves outside the class of ' employees
covered by his unlawful threats. Nor is there any ba-
sis for concluding that Carlson held any ill will
against them at the time of their layoffs, in view of
the absence of evidence that he knew the grievance
had been filed.
Third, I see little in Andasola's conversation with
employee Engelbrecht on-January 17 that gives, as
the majority would have us believe, support to its
result. In that conversation Engelbrecht suggested
that employees had been laid off because they had
filed a grievance against Andasola. Andasola agreed,
immediately using Engelbrecht's supposition as the
basis for a threat that Engelbrecht might lose his job
if he signed any such grievance. While I agree with
my colleagues that such a threat is unlawful, it is
something else again to assume and find-I would
add, fortuitously-that Andasola's comments are
also evidence that Rowan, Mercke, and Montoya
were selected for layoff for unlawful reasons. Such a
conclusion is not warranted on several grounds. Ini-
tially it can be pointed out that Andasola had noth-
ing to do with the layoff; he was not even there at the
time. Consequently, there is no apparent reason why
he would know the basis on which the employees had
been selected for the layoff. Next, his agreeing with
Engelbrecht on the cause of the layoff is, as indicated
above, fully explicable in terms of his seizing on the
asserted cause as a way to shield himself from future
grievances being filed against him. Also, there is no
explanation in the record or in the majority's deci-
sion as to why Carlson would select employees for
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
layoff because they had filed a grievance against An-
dasola. And equally unexplained is why, if Carlson
would select employees for layoff for such reason, he
selected some but not all of the signers of the Decem-
ber 21 grievance for the layoff on January 3.
Fourth, I am not persuaded that simply because
the Respondent, or more specifically Carlson, may
not have presented any especially convincing reasons
why Rowan, Mercke, and Montoya were selected for
layoff rather than other employees with less seniority
and perhaps less overall competence, it follows that
the layoffs must have been unlawfully motivated. All
we can conclude from reading the record before us is
that we do not know precisely why the three were
selected. Absent some evidence of a substantial rea-
son or proclivity for unlawful conduct, however, situ-
ations, such as this one, where the explanations given
are questionable do not constitute by themselves evi-
dence from which a finding of a violation can, or
must, be inferred. Consequently, as the General
Counsel has failed to make out an affirmative case of
unlawful conduct, we cannot make one out for him
from Respondent's failure to rebut facts which do
not themselves establish a prima facie case.
In view of all the foregoing, it seems clear to me
that the evidence in this record is insufficient to sup-
port the conclusion that Rowan, Mercke, and Mon-
toya were selected for layoff for unlawful reasons.
Accordingly, I would affirm the Administrative Law
Judge's dismissal of the 8(a)(3) and (1) allegations of
the complaint concerning the alleged unlawful selec-
tion of those employees for layoff on January 3,
1975.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten any employee with lay-
off or other job reprisal for refusing to join in
concerted activity affecting working conditions.
WE WILL NOT threaten any employee with dis-
charge if he files a grievance complaining about
the conduct of any foreman or other supervisor.
WE WILL NOT select employees for layoff for
filing a grievance complaining about the con-
duct of any foreman or other supervisor.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of their rights to engage in concerted activi-
ties for the purpose of mutual aid and protection
concerning working conditions or to refuse to
engage in such activities.
WE WILL make Richard Rowan, Michael Ray
Mercke, and Carlos Montoya whole for any loss
of pay they may have suffered because of their
unlawful layoff on January 3, 1975.
STEARNS-ROGER, INC.
DECISION
STATEMENT OF THE CASE
HENRY S. SAHM, Administrative Law Judge: The primary
issues in this proceeding, heard at Denver, Colorado, on
April 22 and 23, 1975,1 pursuant to a charge filed by Rich-
ard Rowan on January 10 and amended on February 25,
1975, and a complaint issued on February 28, are whether
the Respondent, also called the Company, violated Section
8(a)(3) of the Act when it laid off three employees because
of their "membership and activities on behalf of the
Union," and whether Section 8(a)(1) was violated when the
Company allegedly "threatened employees with loss of
their jobs if they refused to sign a petition ... that they
did not wish to work" on the day before Christmas and
when it also threatened an employee with loss of his job if
he filed a grievance. Upon the entire record, including ob-
servation of the witnesses, and after due consideration of
the excellent briefs filed by the parties on June 12, there are
made the following:
FINDINGS OF FACT
The Company, a Colorado corporation, is engaged in the
engineering and construction business in North America
and throughout the world. It purchases and receives annu-
ally goods and materials valued in excess of $50,000 direct-
ly from outside Colorado. It is found that Respondent is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
The Union, Local 720 of the Laborers' International
Union of North America, is a labor organization within the
meaning of Section 2(5) of the Act.
The Alleged Violation of Section 8(a)(3)
The events leading up to the institution of this proceed-
ing occurred at the Rocky Mountain Arsenal near Denver,
Colorado, where Respondent is performing work for the
Chemical Corps of the United States Army. Respondent
employs approximately 170 employees at this project site,
all of whom are represented by various construction
unions, with whom Respondent has collective-bargaining
agreements. The Laborers' Union, herein referred to as the
"Union," represents the three alleged discriminatees.
On approximately December 16, 1974, Stephen Andaso-
la, Respondent's labor foreman, and Curtis Carlson, the
general labor foreman, who is Andasola's superior, re-
quested Respondent's employees to sign a petition indicat-
1 Except where otherwise specified, all dates herein refer to the year 1975.
STEARNS-ROGER, INC. 1101
ing that they did not wish to work on the day before
Christmas. Rowan, Mercke, and Montoya, the three al-
leged discriminatees, stated initially to Andasola and Carl-
son their unwillingness to sign this,petition but they along
with all the other employees eventually signed it.2
On December 21, 1974, a grievance drafted by employee
Rowan and signed by five other employees was filed with
their Union, Local 720 of the Laborers. In addition to
Rowan, Mercke, and Montoya, the alleged discriminatees,
this grievance was also signed by Henry Sandoval and Lar-
ry Vigil. The grievance reads (with some editing for the
sake of clarity) 3 that the five signers "have been unfairly
hassle[d] and threaten[ed] to be fire[d] for no reason. Also
was told to sign a statement saying that [we] wanted off
Dec[ember] 24 or [we would] be the first to be, laid off. I
[Rowan] was taken off one job and put on another for
being too slow which is [not] true and having a stewar[d]
that's not always on the job. They send him to .different
parts of the arsenal." Without any discussion of its con-
tents this grievance was merely presented to Respondent
Company by officials of the Laborers' Union when they
came to the Army's Rocky Mountain Arsenal jobsite on
December 30,1974. On that day, Rowan testified there was
a "heated argument" at the jobsite between their union
business agents and he, Mercke and Montoya when the
three men were informed -that the Laborers' Union busi-
ness agents "were not going to process our grievance and
we wanted them to." Montoya testified that the two union
business agents told them that inasmuch as their foreman,
Andasola, had gone on leave on December 23, that it
would not be fair to process the grievance until Andasola
returned to work so they could hear his side of the story
with-respect to him being too strict.
On January 3, eight employees of the laborers' crew, in-
cluding Rowan, Mercke, and Montoya, were "laid off" in a
reduction in force. Respondent's witnesses testified, and
this is uncontradicted, that the layoff resulted from adverse
weather conditions and a combination of the tardiness of
the arsenal's officials in arriving at a decision involving a
backfilling procedure which halted construction for 2
weeks. On January 17, 2 weeks after the layoff, the labor
crew of eight including Rowan, Mercke, and Montoya,
were recalled to work when the Arsenal officials approved
a procedure for effectuating the backfill problem.
The issue with respect to the 8(a)(3) allegation is whether
Rowan, Mercke, and Montoya were "laid off" from Janu-
ary 3 to 17, for proscribed reasons within, the meaning of
Section 8(a)(3) of the Act, 61 Stat. 136, 29 U.S.C. Supp. V,
§ 151, et seq„ which provides, in relevant part, as follows:
UNFAIR LABOR PRACTICES
Sec. 8(a). It shall be an unfair labor practice for an
employer-(1) To interfere with, restrain, or coerce
employees in the,exercise of the rights guaranteed in
Section 7: , (3) By discrimination in regard to hire or
2 Their signing of this petition, it is alleged in the complaint, was coercive-
ly obtained by Respondent threatening them with job reprisals in violation
of'Sec. 8(a)(1) which is discussed, infra.
3 Although it is not mentioned in the grievance, these men complained
about Andasola, their foreman, being too "stnet" with them
tenure of employment or any term or condition of em-
ployment to encourage or discourage membership in
any labor organization ....
Discussion
The Supreme Court has defined substantial evidence so:
Substantial evidence is more than a scintilla, and must
do more than create a suspicion of the existence of the
fact to be established. "It means such relevant evi-
dence as a reasonable mind might accept as adequate
to support a conclusion ..... 4
Findings may not rest on suspicion, surmise, implications,
or plainly incredible evidence 5 "Circumstances that mere-
ly raise a suspicion that an employer may be activated by
unlawful motives are not sufficiently substantial to support
a finding." 6 Even in cases where background circum-
stances surrounding a layoff may create the suspicion that
it was illegally motivated, the General Counsel still has the
burden of showing by a preponderance of the evidence
that the employees were discriminatorily chosen to be laid
off. The burden of affirmatively establishing an unfair la-
bor practice violation is on the General Counsel.? Section
7(d) of the Administrative Procedure Act (5 U.S.C. 556(d) )
provides that the proponent of the order has the burden of
proof. An inference, that conduct was unlawfully motivated
must be based on substantial evidence. Substantial evi-
dence is such evidence as affords a-substantial basis of fact
from which the fact in issue can be reasonably inferred.8
Substantial evidence must have rational probative force; it
must convey conviction; it must be more than a scintilla,
and must do more than create a suspicion of the fact to be
established.9 Moreover, the substantiality of evidence must
take into account whatever in the record fairly detracts
from its weight. This is what is meant by consideration
being given to the "whole record." 10 And the test is not
satisfied by evidence which gives equal support to inconsis-
tent inferences."
Conclusions
Based on observation of the three alleged discnminatees
with respect to the accuracy of their memories, their com-
prehension, and their general demeanor on the stand in
answering questions put to them, the testimony of these
witnesses left much to be desired for the reasons hereinaf-
ter explicated. Montoya was an inconstant witness who
made an unfavorable impression because of his inconsis-
tent testimony with respect to a crucial matter in this pro-
ceeding. Montoya on his direct examination, testified that
4 N.L.R B. v Columbia Enameling & Stamping Co, 306 U.S. 292, 300.
5 Universal Camera Corporation v N L R B, 340 U.S. 474, 484-485.
6 N L. R B v. The Citizen-News Company, 134 F.2d 970, 974 (C.A. 9, 1942).
7 N L.R.B. v. Cone Mills Corporation, 373 F.2d 595, 601 (C.A. 4, 1967);
Cedar Rapids Block Co, Inc and Cedar Sand and Gravel Co. v. N.LR.B, 332
F 2d 880, 885-886 (C A. 8, 1964),
8 Fallstaff Brewing Corp, 128 NLRB 294-295, In. 2 (1960).
9 N L.R.B. v. Del E. Webb Constr. Co, 196 F.2d 702 (C.A. 8)
to Universal Camera Corporation v NLR B, 340 U.S. 474
H Eastern Coal Corp v. N L.R.B, 176 F.2d 131 (CA. 4) See also
N.LR B v. Stafford 206 F.2d 19 (C.A. 8).
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when Carlson, their general labor foreman, was asked if
they were being laid off because of filing the grievance with
their Union, Carlson "just kind of nodded his head." On
cross-examination, however, Montoya revealed his-untrust-
worthiness when he admitted that in his affidavit given to a
Board investigator, he stated that "Rowan, Mercke, Sando-
val were given reduction in force papers on January 3,
1975. Carlson said nothing about the grievance." He thus
acknowledged that Carlson was not mentioned in his affi-
davit as having nodded his head affirmatively in answer to
a question of whether they were being laid off because they
filed a union grievance. Both Rowan and Mercke were
equivocal, uncertain, and had faulty memories. In addi-
tion, it is believed Rowan's patent bias vis-a-vis Respon-
dent, tended to color his testimony and thus detract from
its credibility.
Andasola and Carlson, Respondent's witnesses, ap-
peared to be- sincere and forthright witnesses. An example,
corroborative of this belief, was Carlson's unsophisticated
and uninhibited frankness when he honestly admitted to
telling "a little fib [which] was untrue." Carlson testified
that he was so anxious to get off the day before Christmas
that he represented to one or more of the three alleged
discriminatees who were reluctant to sign the' petition that
the project superintendent also wanted the day off which
Carlson admitted "was untrue ... a little fib to get him to
sign." This candidly conscientious display of i probity has
led the trier of these facts to credit Carlson's testimony as it
is believed he was impelled to tell the truth regardless of
what consequences might eventuate. (See also infra with
respect to Carlson's credibility.)
It is not only clear but also uncontroverted that the
Company's layoff of the three employees was necessary
and motivated solely by valid considerations. No showing
was made by a preponderance of.the substantial evidence
that the temporary layoffs for 2 weeks of Rowan, Mercke,
and Montoya were discriminatorily motivated within the
meaning of Section 8(a)(3) as hereinafter explicated. There
is no seniority provision in the parties' contract. The collec-
tive-bargaining agreement herein provides, inter alia, that
"the contractor reserves the right of management at all
times, and that he may select in cases of reduction .. .
those employees who are, in his estimation, the best quali-
fied." (Resp. Exh. 1, art. VIII A.) Article IX of said agree-
ment states: "The contractor shall be the sole judge as to
the; qualifications of all of his employees. The contractor
shall have the right to discharge for cause any man once
accepted who thereafter proves to be unsatisfactory to the
contractor."
Respondent's "termination notices" handed to each of
the eight laborers laid off stated it was due to a "reduction-
in-force" and that they were "eligible for rehire" which, in
fact, occurred on January 17. (Resp. Exh. 4.) One of those
laid off on January 3 was a nephew of Foreman Stephen
Andasola, by the name of Cisneros. Noteworthy also is the
fact that of the five employees, including Rowan, Mercke,
and Montoya, all of whom signed and filed a grievance
with the Union on December 21, 1974, which was present-
ed by union officials to the Respondent on December 30,
that the two other signers, Sandoval and Vigil, continued
to be employed by Respondent as of the date of the hear-
ing. Moreover, the fact that all eight of the laid-off employ-
ees, which included Rowan, Mercke, and Montoya, were
recalled 2 weeks later, refutes any inference that the initial
layoff was motivated by proscribed motives:
Nor is there any probative evidence to sustain the Gen-
eral Counsel's contention that the filing of a grievance-with
their Union by the three alleged discriminatees on Decem-
ber 21, 1974, motivated the Respondent in laying them off
on January -3: Of the five employees who signed the griev-
ance, Vigil was not laid off on January 3, whereas Sando-
val, the fifth signer, was laid off on January 3, but, like
Rowan, Mercke, and Montoya, he was -not only recalled on
January 17, but he was also employed by Respondent as of
the date of the hearing. Thus, such uncontradicted testimo-
ny rebuts the General Counsel's contention that the three
complaining employee layoffs on January 3 were not only
in retaliation for their filing a grievance with the Union on
December 21, 1974; but also due to their initial refusal to
sign the petition requesting that all employees not be' re-
quired to work the day before Christmas. Significant is
Mercke's admission on cross-examination that his Union's
business agents informed him the Union had investigated
the allegations in the grievance that he, Rowan, and Mon-
toya had filed with the Union on December 21, and that
the Union determined they were laid off "as part of a nor-
mal reduction in force and not because they had filed a
grievance." Montoya, in an affidavit which he gave to a
Board investigator, testified that Phil Kniss, a union offi-
cial, told "us" on January 6, 1975, 3 days after their layoff,
that "we would be on the top-of-the-list to go back to work
at the Stearns-Roger jobsite," which occurred on January
17, when they were all recalled. -
Corroborative of the finding that valid reasons and not
proscribed motives were the reasons for the layoffs on Jan-
uary 3, is the absence of evidence that Respondent dis-
played any union animus in its dealings with these unions
representing the various crafts or its members who were
employed by Respondent. No evidence was elicited to
show that the Company, a union contractor, having collec-
tive-bargaining agreements with the various craft unions
whose 165 to 170 members were employed at the Rocky
Mountain Arsenal had a history of animosity against these
unions. In the absence of any such evidence being pro-
duced by the General Counsel, it is not too unreasonable
to conclude that Respondent's labor relations with the var-
ious unions at the project site was not only satisfactory but
also indicated a tack of union animus which militates
against any finding of an unfair labor practice. In order to
lend plausibility to the General Counsel's representatives'
theory that the evidence adduced by them constitutes vio-
lations of Section 8(a)(3), it would be necessary to hold,
under the circumstances here revealed, that an employer
could not lay off employees for lack of work without being
guilty of an unfair labor practice, where faced with a situa-
tion not of his own doing, as when Respondent was unable
to continue with construction because of bad weather and
the arsenal officials delay in instructing Respondent with
respect to how they should proceed in the backfill situa-
tion. Not only is this not the law, but the unrebutted evi-
dence here is that the layoffs of the three alleged discrimi-
natees on January 3 was for lack of work. It is also
STEARNS-ROGER, INC. 1103
uncontradicted that the forms given them by Respondent
at the time they were laid off stated that theywere separat-
ed due-to a reduction-in-force and that they :were"eligible
for rehire which' in fact occurred when they were recalled
on January 17.
On these facts,- and apart from the intrinsic logic in the
circumstances here presented, it is concluded that-the Re-
spondent did not lay off Rowan, Mercke; and Montoya
because of their "membership in and activities on behalf of
the Union," as alleged in the complaint. Accordingly, it
shall be recommended that the 8(a)(3) allegations in the
complaint be dismissed.
Section.8(a)(1) ,
The complaint alleges that Curtis Carlson, general labor
foreman and a supervisor within the meaning of Section
2(11) of the Act, threatened employees "with the loss of
their jobs if they refused to sign a petition . . . that they
did not wish to work on December 24, 1974...." In addi-
tion, it is alleged that Steve Andasola, labor foreman and a
supervisor within the meaning of the Act, also threatened
an employee with the loss of his job if he filed a grievance.
Michael Mercke testified that on December 16, 1974, he
had the following conversation with Curtis Carlson:
[Carlson] asked me why I didn't want to sign the peti-
tion, and I told him I needed the-money and I would
like to work and then he said, Well the Company signs
your checks, and they have in the past, so -why don't
you sign it, and quit being a rebel and I said I don't
think I am a rebel, and are you threatening me, and he
said no, he wasn't and then I returned to work.
Mercke testified that a short time later he had another
conversation with Carlson the same day on the project.
He called me over to the site and said that he liked my
work, and he would like to keep me here; that if I
didn't sign the petition, when it came time for layoffs,
that the people who didn't sign the petition would be
the first ones down the road . . . and he said you
know, this wasn't my idea, it came down from the
office, and I said, Do you mean Larry Martin [project
superintendent] and he said yes, get everybody to sign
the petition and I told him I didn't want to, and that I
felt that because one laborer hadn't signed the petition
that that would cause everybody to work there, and he
said if one laborer doesn't sign, that means somebody
has to be there to supervise him, and then somebody
will have to be there to supervise the foreman, and on
up the line, and I told him I didn't believe him and he
kept saying well, when it comes time for a layoff, you
will be the first on the list. I later signed [the petition]
.... I signed it [the same day] around 1:30 p.m. An-
dasola [his immediate foreman] had [the petition] in
the lunch-room and I walked over and signed the peti-
tion and then I said to him that it doesn't seem right to
have to force us to sign this petition if we want to
work, and he said I can't make you sign it, but it
would be to your own betterment.
On December 21, the following employees went down to
the union hall and filed a grievance with the Union herein,
Laborers' Local 720: Mercke, Vigil, Sandoval, Montoya,
Rowan, and also Jose Rios who was fired on December 20
because he refused to wear protective glasses. , Mercke testi-
fied: "We went down to the union hall and -filed a griev-
ance that we had been hassled and unduly threatened with
our job by Steve Andasola, and Curtis Carlson had threat-
ened us with our jobs to sign this petition to have the 24th
of December off." -
Montoya testified that when Andasola, his-,foreman,
asked him to sign the Christmas petition, he refused. When
asked on direct what Andasola then said to him, Montoya
testified: "He let it go at that." Montoya continued that
when Carlson asked him why he did not sign the petition,
he replied that he "didn't; want to" whereupon Carlson
said: "I would because Stearns signs the checks for us, and
don't be a rebel about it." Montoya testified that during
this same conversation, Mercke inquired of Carlson- "if he
was threatening us with our jobs" which Carlson denied.
Carlos Montoya also stated that Carlson in asking him to
sign the Christmas petition said: ".... Carlos, help me get
out -of hot water and get this petition signed, and I got six
kids of my own, so-I eventually signed it."
Rowan on his direct examination acknowledged that the
petition for the day off: ". . . came back with everybody's
name on it. So it was unanimous, and we were outvoted."
On cross-examination, he testified: "We also wanted to file
a grievance against Andasola for threatening us with our
jobs on other occasions." Rowan explained this threat oc-
curred 3 months before they filed their grievance on De-
cember 21, when he borrowed, two work buckets without
first notifying Andasola.
Andasola, concrete foreman, stated Rowan did not work
under his supervision but that Mercke and Montoya did.
He testified he had "a real good relationship [with them],
nothing wrong." When he asked the employees to sign the
Christmas petition, including Mercke and Montoya, he de-
nied that he told them "they had to sign or anything like
that." He continued that he was absent from work begin-
ning on December 23 and did not return until January 6.
Concluding his direct testimony, he stated that after the
grievance was filed by the employees, Trujillo, a union offi-
cial, asked him his side of the story on January 13 stating,
after Andasola gave his version, that "he would have to file
it and see what would become of the issue ." Andasola
heard nothing further about the grievance matter.
Carlson, general labor foreman and Andasola's superior,
testified that he asked Rowan, Mercke, and Montoya to
sign the Christmas petition . When they refused, he asked
Montoya "if as a favor [he] would sign it for me." His
testimony continues that when he asked Mercke to sign the
petition, he was reluctant and so "I tried to use a little
pressure . . . I tried to put the blame on management and
passed the buck to Larry Martin [project superintendant],
which was untrue, but just a little fib to get him to sign .. .
that was untrue. It was what I wanted, because I wanted to
have the day off before Christmas."
When Carlson was asked on direct by Respondent's
counsel if he told Rowan that if he did not sign the Christ-
mas petition, "You will be down the road, we will have a
whole new crew out here by the end of the day," he an-
swered:
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I possibly could have . I made that statement about
every day to somebody here and another . It is a com-
mon expression-well, it is a terminology I use. Let's
get the job done or they are going to replace everyone
of us. . . . Yes, I have used it quite often.
When he was asked by counsel for Respondent if he had
"ever let the whole crew go at the end of the day," Carlson
stated: "Oh, no, no, this wasn't too likely to happen. It's
just one of my things I shouldn't be saying probably." 12
There is a failure on the part of the General Counsel to
prove by a preponderance of the credible testimony, supra,
that Andasola threatened an employee with the loss of his
job if he filed a grievance. Accordingly, it is recommended
that paragraph V(b) of the complaint be dismissed.
Paragraph V(a) alleges that on or about December 20,
1974, Carlson threatened employees with the loss of their
jobs if they refused to sign the petition requesting that the
day before Christmas shall be a nonworking day. The testi-
mony with respect to these allegations are detailed supra.
It might be rationalized that the record as a whole does
not show affirmatively, by a preponderance of the evi-
dence, the commission of any unfair labor practice within
the meaning of Section 8(a)(1) of the Act. This would rest
on the finding that there is neither direct proof nor reason-
able inferences showing that the conduct of Carlson in us-
ing the project superintendent's name to sway either
Mercke or Rowan or possibly both to sign the Christmas
petition was a proscribed act violative of the Act. More-
over, it could be contended that an isolated incident, such
as the false use by Carlson of the supertendent's name,
cannot be drawn upon to establish a violation where the
totality of Respondent's conduct conforms not only to the
dictates-and spirit of the statute but also does not violate
12 See section entitled "Conclusions," supra
the employees' statutory rights. Moreover, if what Carlson
told the employees neither coerced nor restrained the rights
vouchsafed to them by Section 7 of the Act, it would not be
illegal. It could also be argued that nothing in what was
said by Carlson to either Mercke, Montoya, or Rowan as
detailed above, can fairly be considered intimidatory or
coercive in the context of Respondent being found blame-
less for the alleged violation of Section 8(a)(3).
Nevertheless, it is believed that when Carlson testified
on his direct examination that he "could have" told the
employees "You will be down the road, we will have a
whole new crew out here" if they persisted in refusing to
sign the petition, it would appear that this was a threat
within the meaning of Section 8(a)(1) as this statement rea-
sonably lends itself to an interpretation of being a warning
or threat of reprisal. This might be characterized merely,as
a random, minimal, or isolated instance, and, in the ab-
sence of any evidence revealing a pattern of flagrant con-
duct on Respondent's part, lends itself to the conclusion
that such an occurrence fails to warrant the issuance of a
cease-and-desist order: However, it is not within my com-
petency or discretion, once a violation of the Act is found,
to withhold the remedy required by the statute . According-
ly, it is found, based upon the testimony delineated above,
that Respondent violated Section 8(a)(1).13
CONCLUSIONS OF LAW
1. By threatening an employee that if he did not sign a
petition circulated by a supervisor whereby the day before
Christmas was to be a nonworking day, Respondent has
interfered with, restrained, and coerced the employee in
the exercise of his rights guaranteed in Section 7 of the Act,
in violation of Section 8(a)(1) of the Act.
2. Respondent did not violate the statute by any other
conduct alleged in the complaint, except as found above.
[Recommended Order omitted from publication.]
13 Cf. Etchleay Corporation v. N L.R B, 206 F.2d 799, 805 (C.A. 3)