Superior Welding, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1998

325 N.L.R.B. 1023 (N.L.R.B. 1998)

1023
325 NLRB No. 189
SUPERIOR WELDING, INC.
1 The Respondent contends that the General Counsel’s exceptions
should be rejected under Sec. 102.46 of the Board’s Rules and Reg-
ulations because they do not set forth specifically those questions of
fact or law to which he excepts. Although the General Counsel’s ex-
ceptions do not conform in all particulars with Sec. 102.46, they are
not so deficient as to warrant rejection. Moreover, the Respondent
has neither claimed nor shown prejudice as a result of any defi-
ciency.
2 The General Counsel has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance 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.
1 All dates are in 1997 unless otherwise indicated.
Superior Welding, Inc. and Indiana State Pipe
Trades Association and United Association of
Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States
and Canada, Local 157, AFL–CIO. Case 14–
CA–24709
June 30, 1998
DECISION AND ORDER
BY MEMBERS LIEBMAN, HURTGEN, AND BRAME
On March 27, 1998, Administrative Law Judge Ar-
thur J. Amchan issued the attached decision. The Gen-
eral Counsel filed exceptions and a supporting brief,
and the Respondent filed an answering 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 briefs1 and has
decided to affirm the judge’s rulings, findings,2 and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Kathleen C. Richmond, Esq., for the General Counsel.
Ronald R. Allen, Esq. (Fine & Hatfield), Evansville, Indiana,
for the Respondent.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was tried in Robinson, Illinois, on January 6, 1998. The
charge was filed August 11, 1997,1 and the complaint was
issued September 30.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and Respondent, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, engages in the business of
welding, repair, and maintenance of machinery and equip-
ment from its facility in Robinson, Illinois, where it annually
performs services valued in excess of $50,000 for various en-
terprises within the State of Illinois, each of which meets a
direct standard for assertion of jurisdiction by the NLRB.
The Company also purchases and receives at its Robinson,
Illinois facility goods and materials valued in excess of
$50,000 directly from points outside of the State of Illinois.
Respondent admits and I find that it is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act and that the Union, Plumbers and Pipefitters Local
157, is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The General Counsel alleges that Respondent violated Sec-
tion 8(a)(1) and (3) in discharging John Griffin on May 16,
1997. He also alleges that Respondent violated Section
8(a)(1) in July, by threatening employees that its facility
would close if employees were represented by a union. Fi-
nally, he asserts that Respondent violated Section 8(a)(1) in
authorizing a poll conducted on October 1, to determine its
employees’ union sympathies.
A. The Discharge of John Griffin
Michael Pleasant, a union field representative, approached
Respondent’s president, Howard Bilyew, in August 1996,
about entering into a relationship with it. Bilyew declined the
offer. Pleasant then informed Bilyew that the Union would
attempt to organize its employees. At the beginning of May
1997, John Griffin, an unemployed union apprentice, re-
ported to the hiring hall. Because the hall had no work for
him, Pleasant suggested that Griffin apply for work at Supe-
rior Welding.
On May 1 or 2, Griffin went to Superior’s office in Robin-
son, Illinois, and obtained a job application. He was inter-
viewed by Howard Bilyew. Griffin did not disclose or give
Bilyew any indication of his affiliation with the Union.
Bilyew hired him and said his employment would be short-
term. He suggested that there was a possibility of long-term
employment.
Griffin started work on either Friday, May 2, or Monday,
May 5. Respondent assigned Griffin to work in its shop for
the first few days and then he periodically worked outside
of the shop. Some of his assignments involved hauling metal
scrap to other locations.
On the morning of Friday, May 16, Bilyew assigned Grif-
fin to haul scrap to a salvage yard in Vincennes, Indiana.
After he returned from his second trip, Bilyew told him that
‘‘some work fell through’’ and that he would have to termi-
nate Griffin’s employment. No other employees were laid
off. Todd Cooper, a welder who was hired before Griffin but
started work after him, remained in Respondent’s employ.
John Griffin did not engage in any union activity while he
was employed by Respondent in May. Griffin alleges that he
revealed his union affiliation to two employees. He testified
that on the day before he was laid off, two of Respondent’s
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1024 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 At p. 12 of its brief the General Counsel alleges that Brush was
acting as an agent of Respondent in conducting a poll in October
1997. However, he never alleged Brush was an agent of Respondent
prior to filing the brief. I find this issue was not tried by consent.
Moreover, the record does not establish that Brush was an agent of
Respondent.
3 Flowers Baking Co., 240 NLRB 870, 871 (1979).
4 Washington Nursing Home, 321 NLRB 366, 375 (1996). 5 W. F. Bolin Co. v. NLRB, 70 F.3d 863 (6th Cir. 1995).
employees, Roger Benson and Roger Brush, indicated to him
that they recognized him from another worksite. Griffin had
worked for a union contractor at this other worksite. Accord-
ing to Griffin, both Benson and Brush asked him if he was
still in the Union. Griffin states that he confirmed that he
was still a union member.
Griffin’s testimony does not indicate any antiunion animus
on the part of either Benson or Brush, who were rank-and-
file employees. Indeed, he testified that Brush said he
thought a union was a good idea for Superior Welding, al-
though Brush didn’t think Bilyew would like one. Michael
Pleasant also testified that in several conversations with
Brush prior to September 1997, Brush appeared to be inter-
ested in the Union. Therefore, even if I accept Griffin’s testi-
mony at face value, it fails to provide a basis on which I am
able to infer that Bilyew knew of his membership in the
Union through Brush or Benson.
Howard Bilyew is the only person alleged to be a Superior
Welding supervisor and agent by the General Counsel.2 The
only direct evidence that he knew of Griffin’s membership
in the Union is the testimony of Shane Alumbaugh, an ap-
prentice who quit Respondent’s employ to join the Union in
September 1997. Alumbaugh testified that the day Griffin
was laid off, an employee named Kevin Becktell told
Alumbaugh that Howard Bilyew laid Griffin off because he
was a union organizer.
According to Alumbaugh, Roger Brush told him that
Brush informed Bilyew that Griffin was a union organizer
and that Bilyew had laid Griffin off for that reason. I decline
to credit Alumbaugh’s testimony. He is not a disinterested
witness and his testimony is inconsistent with that of Pleas-
ant and Griffin that Brush was favorably disposed to the
Union in May. Brush, therefore, had no motivation to tell
Bilyew that Griffin was a union member. Moreover, Griffin
had not engaged in any organizing while he had worked for
Respondent. Brush was called as a witness by Respondent
but neither party interrogated him about whether he informed
Bilyew about Griffin’s union membership. Becktell and Ben-
son were not called as a witnesses.
In order to prove that Respondent violated Section 8(a)(1)
and (3) in terminating Griffin, the General Counsel must
show that union activity has been a motivating factor in the
Respondent’s decision. Then the burden of persuasion shifts
to Respondent to prove its affirmative defense that it would
have taken the same action even if Griffin had not engaged
in union or other protected activity. Wright Line, 251 NLRB
1083 (1980), enf. 662 F.2d 899 (1st Cir. 1981).
To establish discriminatory motivation, the General Coun-
sel generally must show union or other protected activity,
employer knowledge of that activity, animus or hostility to-
wards that activity, and a causally related adverse personnel
action. Inferences of knowledge,3 animus4 and discriminatory
motivation5 may be drawn from circumstantial evidence rath-
er than from direct evidence.
In the instant case the General Counsel has failed to prove
a prima facie case, primarily because he has failed to estab-
lish employer knowledge. The General Counsel argues that
knowledge can be inferred from the small size of Respond-
ent’s facility (8–10 employees), the close contacts between
Bilyew and his employees, the timing of Griffin’s discharge,
Bilyew’s knowledge that the Union wanted to organize his
company, and employees’ knowledge of Griffin’s union sta-
tus. In rejecting this argument, I would note that reliance on
Respondent’s size, the ‘‘small plant doctrine’’ is not war-
ranted since Griffin engaged in neither union activity nor
publicized his union membership, Mantac Corp., 231 NLRB
858 fn. 2 (1977).
The General Counsel is correct that the Respondent’s ex-
planation for Griffin’s layoff is not particularly convincing.
Respondent relies on three bids it submitted between April
24 and May 1, for which contracts had not been awarded as
late as January 1998. As the General Counsel points out, the
record is devoid of evidence that Respondent had any reason
to expect these contracts to be awarded in mid-May. Never-
theless, I conclude that Respondent’s reasons are not so obvi-
ously pretextual that they justify an inference that Bilyew
knew Griffin was a union member and laid him off for that
reason.
B. The Alleged Threat to Close the Workplace if
Respondent’s Employees Joined a Union
Shane Alumbaugh testified that Bilyew told his employees
that he would go broke if they unionized and that he would
have to close his doors if they did so. Both Bilyew and
Brush deny that Bilyew made these statements. I decline to
credit Alumbaugh and thus conclude that the General Coun-
sel has not met his burden of proof with regard to this alle-
gation.
C. The Allegation That Respondent Directed or
Authorized Roger Brush to Poll its Employees
Regarding Their Union Sympathies
The Union’s charge regarding the termination of John
Griffin and Respondent’s alleged threats to employees was
served on Superior Welding on August 13. On September
10, Griffin was recalled to work by Respondent, following
the resignation of Shane Alumbaugh. On October 1, Roger
Brush conducted a poll of Respondent’s employees regarding
their interest in the Union. Griffin went on strike imme-
diately after the poll was conducted and has not returned to
work at Superior Welding. The General Counsel alleges that
Respondent authorized or directed this poll. Respondent con-
tends Brush acted on his own.
Despite the rather suspicious circumstances surrounding
the poll, I conclude that there is insufficient evidence to infer
that Bilyew authorized it. Griffin testified that he was in the
breakroom waiting for his work assignment on October 1. He
alleges that Bilyew entered the room, said something to
Brush, and left. He does not contend that he heard what
Bilyew said. After Bilyew left, Brush conducted the poll in
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1025SUPERIOR WELDING, INC.
6 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.
which the assembled employees indicated their lack of inter-
est in the Union on a piece of paper.
Brush testified that Bilyew had nothing to do with the
poll. He asserts that Bilyew told him he had to go to a meet-
ing and left before Griffin arrived. After Griffin arrived,
Brush says he asked all the employees to indicate their feel-
ings about the Union on a piece of paper. Bilyew also denies
having anything to do with the poll. He says he went to a
meeting at the Hershey Chocolate plant in Robinson before
the poll was taken and that he merely told Brush where he
was going before he left. There is insufficient evidence for
me to find that Bilyew discussed the poll with Brush before
he left. Moreover, until the filing of his brief, the General
Counsel never alleged that Brush was an agent of Respond-
ent.
CONCLUSION OF LAW
I conclude that the General Counsel has failed to establish
any of the violations alleged in the complaint as amended.
On these findings of fact and conclusion of law and on the
entire record, I issue the following recommended6
ORDER
The complaint is dismissed.
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