W. F. Bolin Co.

National Labor Relations Board - Board Decisions

Jun 30, 1993

311 N.L.R.B. 1118 (N.L.R.B. 1993)

1118
311 NLRB No. 128
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On January 27, 1993, Administrative Law Judge Stephen J.
Gross issued the attached decision. The General Counsel filed excep-
tions and a supporting brief, and the Respondent filed an answering
brief.
2 No exceptions were filed to the judge’s finding that the Respond-
ent violated Sec. 8(a)(1) by Superintendent Ring’s statement to two
employees that if the employees kept complaining, he would fire the
whole crew and bring in a new crew.
3 Charging Party James Wright died between the time he gave an
affidavit to a Board agent and the opening of the hearing. The Gen-
eral Counsel excepted to the judge’s exclusion of this affidavit as
inadmissible hearsay. In finding a violation in this case, we do not
rely on that affidavit. Accordingly, we find it unnecessary to the res-
olution of this case to pass on this exception.
4 The Respondent retained employees who had less seniority on
the project than Kehl and Wright, including employee George Mil-
ler, who began working for the Respondent on December 30, 1991.
5 No exceptions were filed to either of these findings.
W. F. Bolin Co. and James D. Wright and Neal F.
Kehl. Cases 9–CA–29404 and 9–CA–29448
June 30, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The question presented in this case is whether Re-
spondent’s layoff of two employees violated Section
8(a)(3) of the Act.1
The National Labor Relations Board has considered
the decision and the record in light of the exceptions2
and briefs and has decided to affirm the judge’s rul-
ings,3 findings, and conclusions only to the extent con-
sistent with this Decision and Order.
In his exceptions, the General Counsel contends that
the judge erred by failing to find that the Respondent
violated Section 8(a)(3) by laying off employees Kehl
and Wright. We agree with the General Counsel for
the reasons set forth below.
The Respondent is a party to a collective-bargaining
agreement between the Union and two local contractor
associations. Pursuant to the terms of this agreement,
the Respondent hired several painters from the Union’s
hiring hall during the fall of 1991 to perform painting
work at a school construction project. During the
course of this project, several union members working
for the Respondent at this project complained that the
Respondent was not fulfilling contract provisions re-
garding travel pay, extra pay for working with epoxy
paint, paycheck distribution, and the allocation of
‘‘premium pay’’ work. With regard to the complaints
that the Respondent was not paying travel pay to the
employees, the Respondent’s owner William Bolin
asked James Farley, the Union’s business agent, to talk
to the employees. Farley told them that the Union had
agreed that the Respondent would not have to pay
travel pay on this project in order to induce the Re-
spondent to bid on the project. With regard to epoxy
pay, Kehl, who did most of the epoxy work, com-
plained to Farley that he was not receiving extra pay
as required in the collective-bargaining agreement. Far-
ley agreed with Kehl that he was entitled to epoxy
pay. In subsequent conversations with Bolin, however,
Farley did not insist that the Respondent make the ad-
ditional payments. Despite Farley’s agreement with the
Respondent’s position on travel pay, Wright continued
to complain to Foreman Charles Tisher and to talk
with his fellow employees about the lack of travel pay.
Kehl similarly complained about the lack of epoxy pay
and the other contractual issues. Sometime around the
beginning of November, Union Steward Edward Minke
raised the travel pay issue with Tisher in the presence
of several other employees including Wright. In order
to illustrate his point, Minke handed him a copy of the
contract so that he could examine the pertinent clause.
Tisher threw the contract on the floor without exam-
ining it.
At different times in the first 2 weeks after he start-
ed work on December 12, Kehl complained to Tisher
about the Respondent’s failure to provide travel and
epoxy pay and Tisher’s failure to distribute the higher
paying spray work more evenly among the employees.
Kehl also acted as a spokesman for the employees to
protest the Respondent’s failure in late December to
deliver paychecks to employees on the jobsite. At a
meeting of employees with Tisher held on December
24, Kehl acted as the employees’ spokesman on a
range of issues, including complaints about travel pay,
epoxy pay, and the distribution of premium pay, and
Wright spoke for the employees regarding the Re-
spondent’s failure to give them travel pay.
Shortly after this meeting, Superintendent James
Ring and Tisher walked by Kehl and Union Steward
Minke while they were painting a wall with epoxy. On
Kehl’s request, Minke spoke to Ring regarding epoxy
pay. Ring replied, ‘‘if you guys keep complaining I’m
going to fire the whole crew and bring in a new
crew.’’
On January 10, 1992, the Respondent laid off Kehl
and Wright, citing the need for fewer workers during
the latter part of the project and the two employees’
alleged lesser proficiency at trim work (i.e., the paint-
ing of doors, doorframes, and other decorative work),
the bulk of the painting work remaining on the
project.4
The judge found that Wright’s and Kehl’s com-
plaints and statements regarding the Respondent’s al-
leged failure to abide by provisions of a collective-bar-
gaining agreement constituted protected concerted ac-
tivity. The judge further found that the Respondent
violated Section 8(a)(1) by Ring’s statement that he
would fire the whole crew if they kept complaining.5
The judge, however, found that the layoffs did not
violate Section 8(a)(3) and (1) of the Act, concluding
1119W. F. BOLIN CO.
6 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983).
that there was no basis for finding that the Respondent
laid off either Kehl or Wright because of their pro-
tected activities. The judge found the absence of ‘‘vir-
tually . . . [any] credible evidence of animus’’ by Re-
spondent toward Kehl and Wright because of their en-
gaging in protected activity. In particular, the judge
noted that Ring’s remark was not individually directed
at Kehl and Wright and that Ring had no intention of
firing anyone at the time he made the remark. Further,
with respect to the incident in which Tisher threw
down the contract that Minke handed him, the judge
noted that Tisher’s action was not directed at Kehl or
Wright and that he was unwilling to interpret Tisher’s
‘‘expression of irritation’’ as proof that Tisher would
be willing to terminate the employment of an em-
ployee because of the employee’s protected activity.
Analyzing the burden of proof issue, the judge con-
cluded that because the General Counsel had not
shown that layoffs were unwarranted on January 10,
1992, or that the Respondent ordinarily lays off paint-
ers according to seniority on the job, or that the Re-
spondent had shown animus against Kehl and Wright,
the General Counsel had the burden of proof ‘‘to show
that Tisher’s testimony about how he chose Kehl and
Wright to lay off was false.’’ Although the judge cred-
ited the testimony of the General Counsel’s witnesses
that Kehl and Wright were experienced painters who
were ‘‘perfectly capable’’ of performing the trim work,
he concluded that such evidence fell short of proving
that Tisher ‘‘could not reasonably have concluded that,
relative to the other painters, Kehl and Wright were
not as productive at the particular kinds of work that
remained to be done as of January 10.’’
In Wright Line,6 the Board set forth its test for cases
alleging violations of the Act that turn on employer
motive. First, the General Counsel must make a prima
facie showing sufficient to support the inference that
protected conduct was a motivating factor in the em-
ployer’s decision. Once this is established, the burden
shifts to the employer to demonstrate that it would
have taken the same action even in the absence of the
protected conduct.
In essence, the judge found that the General Counsel
failed to establish a prima facie case that the Respond-
ent’s layoff of Kehl and Wright was motivated in party
by their protected activities. We disagree.
Contrary to the judge, we find that Ring’s unlawful
remark about firing the crew evidences animus toward
the protected activities of Kehl and Wright. Discrimi-
natory motivation may reasonably be inferred from
various factors, including an employer’s expressed hos-
tility toward protected activity together with its knowl-
edge of the employee’s protected activities. Turnbull
Cone Baking Co. v. NLRB, 778 F.2d 292, 297 (6th Cir.
1985), cert. denied 476 U.S. 1159 (1986), and cases
cited there. Ring’s remark clearly expressed hostility
toward and contemplated retaliation against employees
who voiced further complaints. In light of Kehl’s and
Wright’s continued outspokenness on behalf of em-
ployees to complain about various working conditions,
we find it reasonable to infer that the Respondent was
hostile towards Kehl and Wright regarding their con-
tinued voicing of complaints. In addition, Tisher’s
throwing down a copy of the contract in reaction to the
union steward’s complaints further evidences hostility
to the employees’ protected activities in general and,
by inference, to the protected activities of Kehl and
Wright. Based on the foregoing and in light of the tim-
ing of the layoffs in close proximity to the employees’
protected activities, we find that the General Counsel
has established a prima facie case that a reason for the
Respondent’s selection of Kehl and Wright for layoff
was their protected activities. See Equitable Gas Co.,
303 NLRB 925, 928–929 (1991); Chelsea Homes, 298
NLRB 813, 814 (1990).
In order to rebut the prima facie case, the Respond-
ent must demonstrate that it would have laid off Kehl
and Wright in the absence of their protected activities.
To establish its defense, the Respondent has the burden
of presenting ‘‘an affirmative defense in which the em-
ployer must demonstrate by a preponderance of the
evidence that the same action would have taken place
even in the absence of the protected conduct.’’ Roure
Bertrand Dupont, Inc., 271 NLRB 443 (1984). An em-
ployer cannot simply present a legitimate reason for its
action but must persuade by a preponderance of the
evidence that the same action would have taken place
even in the absence of the protected activity. Equitable
Gas Co., supra at 928.
The only witness presented by the Respondent to es-
tablish that it possessed a legitimate business reason
for the layoff of Kehl and Wright was its Project Fore-
man Tisher, who testified that ‘‘I just chose the best
ones to do the job and laid the other two off, or I kept
the people I felt were the best qualified to finish the
job is what it was.’’ We find this vague and
conclusionary testimony, unsupported by any specific
or objective evidence, insufficient to meet the Re-
spondent’s burden, especially in light of the judge’s
finding based on credited testimony that Kehl and
Wright were both experienced painters capable of per-
forming trim work and that they were ‘‘at least as
good’’ as the other painters on the job and the fact that
one of the painters retained by the Respondent had
started working on the project less than 2 weeks before
the layoff.
Based on the foregoing, we find that the Respondent
has failed to rebut the General Counsel’s prima facie
showing that the Respondent laid off Kehl and Wright
1120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 There is record evidence that the work project in question ended
on April 3, 1992. However, we leave the issue of reinstatement and
the amount of backpay to the compliance stage of these proceedings.
8 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.’’
1 WFB admits that it is an employer engaged in commerce within
the meaning of Sec. 2(2), (6), and (7) of the National Labor Rela-
tions Act (the Act).
because of their protected activities. We therefore con-
clude that the layoffs violated Section 8(a)(3) and (1)
of the Act.
ORDER
The National Labor Relations Board orders that the
Respondent, W. F. Bolin Company, Columbus, Ohio,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Stating to employees that employees will be
fired unless they cease concertedly complaining about
their wages and working conditions.
(b) Laying off employees in retaliation for com-
plaining about their wages and working conditions.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Neal Kehl immediate and full reinstate-
ment to his former position or, if that position no
longer exists, to a substantially equivalent position,
without prejudice to his seniority and other rights and
privileges, and make whole Neal Kehl and the estate
of James Wright, deceased, for any loss of earnings
and other benefits suffered by reason of its unlawful
conduct, with interest.7 Backpay will be computed in
accordance with F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
(b) Post at its office in Columbus, Ohio, copies of
the attached notice marked ‘‘Appendix.’’8 Copies of
the notice, on forms provided by the Regional Director
for Region 9, after being signed by the Respondent’s
representative, shall be posted by the Respondent im-
mediately upon receipt and maintained for 60 consecu-
tive 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 cov-
ered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
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
violated the National Labor Relations Act and has or-
dered 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 protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT respond to concerted complaints by
employees about their wages and working conditions
by threatening to fire them.
WE WILL NOT lay off employees in retaliation for
their making concerted complaints about their wages
and working conditions.
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 offer Neal Kehl immediate and full rein-
statement to his former position or, if that position no
longer exists, to a substantially equivalent position,
without prejudice to his seniority, or any other rights
or privileges previously enjoyed and WE WILL make
whole Neal Kehl and the estate of James Wright, de-
ceased, for any loss of earnings and other benefits re-
sulting from our discrimination against them, less any
net interim earnings, plus interest.
W. F. BOLIN COMPANY
Eric V. Oliver, Esq., for the General Counsel.
Christopher L. Lardiere, Esq. (Kemp, Schaeffer & Rowe), of
Columbus, Ohio, for the Respondent.
DECISION
STEPHEN J. GROSS, Administrative Law Judge. The Re-
spondent, W. F. Bolin Company (WFB), is a painting con-
tractor headquartered in Columbus, Ohio.1 The events at
issue here occurred during the course of WFB’s work at the
1121W. F. BOLIN CO.
2 James D. Wright filed his unfair labor practice charge (in Case
9–CA–29404) on March 13, 1992. Neal Kehl Jr. filed his charge (in
Case 9–CA–29448) on March 26, 1992. The consolidated complaint
issued on April 16, 1992. The complaint was amended twice at the
hearing. I held the hearing in Columbus, Ohio, on August 18, 1992.
The General Counsel and WFB have filed briefs. In addition, WFB
filed a reply brief to which the General Counsel filed a reply.
3 WFB admits that Local 93 is a labor organization within the
meaning of Sec. 2(5) of the Act.
4 Sometime after Kehl was laid off, WFB sent a check for $100
to Kehl in connection with Kehl’s epoxy work. According to Bolin’s
credible testimony, WFB paid the $100 ‘‘just to make’’ Kehl’s com-
plaints ‘‘go away.’’
Logan Middle School in Logan, Ohio, between September
1991 and April 1992.
According to the General Counsel, WFB’s agents made
coercive statements to employees, thereby violating Section
8(a)(1) of the Act, and laid off two employees for discrimi-
natory reasons, in violation of Section 8(a)(3) and (1) of the
Act.2
I. THE EMPLOYEES’ COMPLAINTS
The Local Union of the International Brotherhood of
Painters and Allied Workers with jurisdiction over the Logan
Middle School site is Local 93, in Marietta, Ohio.3 WFB be-
came a party to the collective-bargaining contract between
Local 93 and two local contractor associations. In keeping
with the terms of that contract, WFB obtained almost all of
the employees it employed at the Logan Middle School
through Local 93’s hiring hall.
Throughout the course of their employment by WFB at the
Logan Middle School, several employees (all members of
Local 93) complained that WFB was not abiding by various
provisions of the collective-bargaining contract. Those provi-
sions had to do with: travel pay; extra pay for working with
epoxy paint; the distribution of pay checks; and ‘‘premium
pay.’’
Travel Pay
The Logan Middle School is roughly 60 miles from Mari-
etta, Ohio. The collective-bargaining contract provides that in
the case of worksites ‘‘in excess of 50 miles’’ from ‘‘the
Washington County Court House’’ (in Marietta), the em-
ployer is required to pay 1 hour’s pay (about $20) to each
employee for each day’s work.
WFB’s owner, William Bolin, raised the issue of travel
pay with Local 93’s business agent, James Farley, before
bidding on the Logan Middle School job. Farley, in order to
encourage Bolin to submit a bid, agreed that WFB would not
have to pay travel pay for work at the Logan Middle School.
(It was not unusual for Farley to enter into such agreements
regarding travel pay in regard to jobsites in the Logan area.
Nonetheless, it is by no means clear that Farley in fact was
authorized to enter into such agreements. But since the Gen-
eral Counsel does not contend that WFB violated Section
8(a)(5), nothing in this proceeding hinges on whether the
Bolin-Farley agreement concerning travel pay was binding.)
A number of WFB’s employees at the Logan Middle
School lived in the Marietta area and carpooled each day all
the way to the school and back. Travel pay, and WFB’s fail-
ure to pay it, were favorite topics of conversation during
those long car rides. Soon after work began at the school,
employee Edward Minke (who was the job steward) brought
the matter to the attention of WFB’s foreman at the site,
Charles Tisher. Tisher told WFB’s superintendent, James
Ring, about Minke’s complaint. And both Tisher and Ring
told Bolin. Bolin responded by asking Farley to talk to the
employees. And, on several occasions, Farley did, telling
them that travel pay did not apply to the Logan Middle
School job.
That, however, did not silence the complaints. In particu-
lar, employee James Wright kept complaining to his fellow
employees and to Tisher about the lack of travel pay. (The
General Counsel contends that Wright’s complaints about the
lack of travel pay were the reason that WFB laid off Wright.
That contention will be considered in part III, infra.)
Epoxy Pay
The lavatories in the Logan Middle School were painted
with epoxy. Epoxy gives off strong fumes; and there is testi-
mony that such fumes are hazardous. Employee Neal Kehl
did most of the epoxy work. It was Kehl’s understanding that
a 1991 amendment to the collective-bargaining contract
called for additional pay for employees using epoxy in any
confined area. The record indicates, moreover, that Local
93’s business agent, Farley, agreed with Kehl and told the
employees that they would be receiving extra pay for epoxy
work. Bolin, on the other hand, read the contract as requiring
extra pay for epoxy work only when the painting was done
inside tanks. After Bolin stated his position about epoxy pay
to Farley, Farley did not insist that WFB pay extra for epoxy
work.
The contract amendment about epoxy pay was not made
part of the record.
Several employees complained about WFB’s refusal to pay
extra for epoxy work. Kehl complained more than anyone
else about it. (The General Counsel contends that these com-
plaints by Kehl were a reason that WFB laid off Kehl.)4
Premium Pay
The collective-bargaining contract provided that spray
painting paid more than brush and roller painting. The con-
tract also provided that: ‘‘All premium pay shall be distrib-
uted equally among journeymen on the job.’’ Some of the
work at the Logan Middle School did involve spray painting.
But initially WFB did not distribute that work among all of
the journeyman painters working at the school. Kehl spoke
to Tisher about WFB’s failure to abide by the contract in this
respect.
Paychecks
WFB’s weekly pay periods run from Wednesdays through
Tuesdays. Paychecks are run off on Wednesdays. Ring
(WFB’s superintendent) generally took the paychecks to the
jobsite on Thursdays. One week in late December, Ring was
not able to make his usual visit to the Logan Middle School
site. WFB responded by mailing, on Wednesday, the pay-
checks to the employees. That was a violation of the collec-
tive-bargaining contract which specifies that ‘‘employees
shall . . . receive their pay on the job.’’ Additionally, the
paychecks did not arrive at the employees’ homes until, at
the earliest, Friday (while the employees were at work). And
1122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 WFB’s brief claims that a statement in an employee affidavit
supports Ring’s testimony that his remark was meant as a joke. That
claim will be considered in part IV, infra.
no one from WFB had informed the employees about the
one-time change in procedures. As a result the employees
were surprised and upset when, as the workday came to a
close on that Friday, they were not given their paychecks.
(The contract also provides that employees must receive their
pay ‘‘not later than 4:30 p.m. Friday.’’)
On that Friday, Minke (the job steward) complained to
Tisher about the employees not receiving their paychecks.
When Tisher said that the checks had been mailed, Kehl
said, ‘‘that’s against the contract,’’ pulled out a copy of the
contract, and showed Tisher the relevant language. Accord-
ing to Kehl, Tisher then ‘‘kind of gave me a look.’’
The record is clear that WFB mailed the paychecks, in-
stead of handing them out on the job, only on that one occa-
sion.
II. THE ALLEGED COERCIVE STATEMENTS
A. ‘‘There’s Always the Highway’’
Employee Larry Beasley testified that, in the course of a
workbreak at the Logan Middle School sometime in Novem-
ber, with all the employees present, Tisher responded to em-
ployee complaints about travel pay by saying, ‘‘if you don’t
like it, there’s always the highway.’’ No other employee tes-
tified that Tisher ever said anything like that. Tisher denied
ever using the phrase, whether in response to employee ref-
erences to travel pay or to any other employee complaints.
There is no doubt that, as understood in the industry, the
‘‘there’s always the highway’’ phrase means something on
the order of, ‘‘we’re going to continue doing things the way
we’re doing them now, and if you are not willing to abide
by that, your alternative—your only alternative—is to quit.’’
The General Counsel contends that I should believe
Beasley, not Tisher, and that WFB violated the Act when
Tisher uttered those words.
In many circumstances an employer violates Section
8(a)(1) of the Act by stating, in response to concerted ex-
pressions of concern by employees about wages or working
conditions, that the employees’ only alternatives are either to
put up with what the employer is providing or to leave the
employer’s employ. E.g., Bill Scott Oldsmobile, 282 NLRB
1073, 1074, 1082 (1987). But here: (1) Tisher had previously
explained to the employees that their Union had agreed that
WFB need not pay travel pay; (2) the Union’s business agent
had told the employees that the Union had indeed entered
into such an agreement; and (3) nothing in the record sug-
gests that, even assuming that Tisher did make such a re-
mark, he made it in a threatening or angry manner. (Compare
Bill Scott Oldsmobile, supra.) Under these circumstances it is
not at all clear to me that, had Tisher made the remark, it
would have violated the Act.
In any case, I find that the General Counsel failed to prove
that Tisher made the remark. Beasley was a very credible
witness. But according to Beasley, Tisher made the remark
in the presence of several employees, including the steward,
Minke. Minke, in turn, showed that he was willing to testify
that Tisher made threats (as will be discussed below). But
Minke said nothing about any utterance by Tisher about
‘‘there’s always the highway.’’ Further, there was nothing in-
credible about Tisher’s denial.
I accordingly will recommend that this allegation of the
complaint be dismissed.
B. Ring’s Remark About ‘‘Firing the Whole Crew’’
In late December, Ring (the superintendent) and Tisher
walked past Kehl and Minke as the two employees were
working with epoxy. Kehl asked Minke to ask Ring about
epoxy pay. (The record does not tell us how loudly Kehl
spoke; thus I am in no position to find that Tisher or Ring
heard Kehl.) Minke did raise the matter with Ring. Ring re-
sponded something on the order of: ‘‘if you guys keep com-
plaining I’m going to fire the whole crew and bring in a
whole new crew.’’
Kehl testified that Ring’s expression was serious as he
made the remark and that the remark was ‘‘most certainly di-
rected at me, as he had eye contact with me when he said
it.’’
Ring did not deny making the remark, but he testified that
he said it in jest—‘‘more or less’’ kidding around.5 Ring also
testified, credibly, that he had never fired anyone in the 36
years he had been a supervisor for painting contractors. As
for Kehl’s testimony about Ring directing the comment at
Kehl, Ring testified, again credibly, that he did not even
know who Kehl was.
Minke did not testify about the incident.
My conclusion is that WFB violated Section 8(a)(1) of the
Act by reason of Ring’s remark.
I find that, in making the remark, Ring had no intention
whatsoever of firing anyone. (I credit Ring’s testimony to
that effect. Further, given WFB’s contractual arrangement
with Local 93, it would have been all but impossible to fire
‘‘the whole crew and bring in a whole new one,’’ as Ring,
Minke, and Kehl all surely knew.) I also credit Ring’s testi-
mony to the effect that he did not direct his remark at Kehl.
But Minke’s utterance to Ring concerning epoxy pay was
protected by Section 7 of the Act. To say the least, a super-
intendent responding by talking about firing the whole crew
might reasonably be perceived by employees as coercive,
however jovially the superintendent intended the remark to
be heard and even if the employees understood that a collec-
tive-bargaining contract almost surely protected them from
such wholesale firing.
C. Minke’s Testimony About Tisher Threatening to
‘‘Hire a New Crew From Columbus’’
According to Minke, while he and Tisher were working
together (and away from other employees), they had a con-
versation about the employees’ complaints—travel pay, di-
viding up premium pay, and the like. Minke testified that in
the course of that conversation Tisher stated, ‘‘if the com-
plaints didn’t stop, Bill [Bolin] would lay the crew off and
hire a new one from Columbus.’’ Tisher denied ever saying
any such thing.
Minke’s testimony seemed credible to me insofar as his
demeanor was concerned. But so did Tisher’s denial. And
Tisher (like Ring, Minke, and Kehl) had to have known that
WFB’s collective-bargaining agreement with Local 93 flatly
precluded Bolin from doing any such thing. That alone
makes it difficult to give credence to Minke’s testimony
about Tisher. Additionally, Minke’s description of the words
Tisher allegedly used closely matches the words used by
1123W. F. BOLIN CO.
6 This table refers only to employees. Tisher (the foreman) is not
included even though he spent 40 hours per week at the Logan Mid-
dle School, much of the time working as a painter.
7 The General Counsel points out that, in the course of Bolin’s tes-
timony, he stated that Beasley had been laid off. In fact Beasley
quit. That, argues the General Counsel, suggests that Bolin was not
a credible witness. Br. at 5. But I consider that misstatement by
Bolin to signify nothing whatsoever about his credibility.
8 Kimberling was a specialist in electrostatic painting. He was
hired for that purpose for the 1 day.
9 Kehl testified that, 15 minutes before end of the workday on Jan-
uary 10, Tisher said to Kehl: ‘‘This is not my idea, but I have to
lay you off.’’ Tisher, however, denied that he told Kehl that the lay-
off was not Tisher’s idea. I credit Tisher. (Tisher may very well
have told Kehl that he (Tisher) did not like having to lay off Kehl.
But that, of course, is by no means the same as stating that Tisher
was ordered to lay off Kehl.)
10 Another way of measuring seniority would be how much time
each employee had worked for WFB at all locations, not just the
Logan Middle School. The record tells us very little about that apart
from the fact that Wright had previously been employed by WFB
as had Beasley and, apparently, Spears.
11 See Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB
v. Transportation Management Corp., 462 U.S. 393 (1983).
Ring in Minke’s presence (as discussed above). That sug-
gests the possibility that Minke’s memory somehow switched
Tisher for Ring as the speaker of the threat.
Under all the circumstances I am unable to find that Tisher
uttered the alleged threat. I accordingly will recommend that
the relevant allegation of the complaint be dismissed.
III. WFB’S LAYOFF OF KEHL AND WRIGHT
As touched on earlier, WFB’s work at the Logan Middle
School was not completed until April (1992). But WFB laid
off Kehl and Wright on January 10. The General Counsel
contends that WFB did that because of the complaints that
Kehl and Wright had made to management. WFB’s position
is that as of January 10 fewer employees were needed than
had been the case and that Kehl and Wright were laid off
because, in the foreman’s judgment, they were less qualified
to handle the remaining work than were the other employees.
The dates of employment of WFB’s employees at the
Logan Middle School, and the number of WFB employees
employed there, are as follows:
Table I. Painters Working for W. F. Bolin at the Logan Middle
School6
Date Event
Number of
Painters on
the Job
Sept. 23 Beasley starts work 2
Minke starts work
Oct. 4 Wachenschwanz starts work 3
Oct. 10 Wright starts work 4
Nov. 19 Beasley quits7 3
Nov. 20 Spears starts work 4 (from Columbus
local)
Nov. 25 Covey starts work 5
Dec. 12 Kehl starts work 6
Dec. 30 Miller starts work 7
Jan. 10 Wright laid off 5
Kehl laid off
Feb. 10 Covey laid off 4
Feb. 27 Spears laid off 2
Miller laid off
Mar. 19 Wachenschwanz laid off 1
Mar. 24 Kimberling hired for the 1 day8
Apr. 3 Minke laid off 0
A. Does the Fact That the Layoffs Occurred While
Work Remained Suggest Discriminatory Motivation
by WFB
The General Counsel contends that the record shows that,
but for WFB’s animus toward Wright and Kehl, WFB would
not have laid off any employee on or about January 10. The
General Counsel cites, in that respect: employee testimony to
the effect that considerable painting work remained as of
January 10; testimony showing that the general contractor for
the Logan Middle School expressed unhappiness about what
the general contractor considered the insufficient number of
painters on the job subsequent to January 10; and testimony
that the painting work was behind schedule.
As to substantial painting work remaining, all parties
agree. Tisher, for example, testified that the painting work
was only about 70 percent complete as of January 10. But
Tisher also testified (credibly) that one section of the school
was not yet ready for painting. As for the other areas of the
school, Bolin credibly testified that: ‘‘the big spraying was
done, the block filling was all done, most of the walls were
finish coated. . . . It was mainly trim work that was left to
be finished, doors, frames, decorating type work.’’ That
being the case, Tisher made the judgment that seven painters
were too many for the work at hand.
As for the testimony about the general contractor’s expres-
sions of unhappiness and the work being behind schedule: I
do not consider the fact that a general contractor expressed
a preference for a subcontractor having more employees on
the job to be weighty evidence about how many employees
could be efficiently employed by the subcontractor; and I
credit Bolin’s testimony to the effect that while, overall, the
Logan Middle School construction was behind schedule be-
cause of a late start in building the school, WFB’s work was
on schedule within the framework of that overall delay.
I conclude that WFB’s layoff of two employees was solely
a function of Tisher’s judgment that WFB needed five paint-
ers at the Logan Middle School, not seven, as of January
10.9
B. Seniority Issues
If seniority is measured by how long each employee of
WFB had been working for WFB at the Logan Middle
School site,10 as of January 10 Wright was senior to four
employees: Spears, Covey, Kehl, and Miller; Kehl was senior
to Miller. (See Table 1.) Accordingly, if the record showed
that WFB tended to lay off employees on the basis of senior-
ity at a jobsite, WFB would have the obligation to explain
why it laid off Wright and Kehl prior to less senior employ-
ees.11
But nothing in the record suggests that WFB had any such
practice. (I note that the collective-bargaining contract does
1124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 The collective-bargaining contract’s only requirement regarding
layoffs is that the job steward ‘‘will be the last journeyman laid off
provided he is capable of performing the work.’’ And, in fact, the
job steward (Minke) was the last employee that WFB laid off at the
Logan Middle School site.
13 See also Stor-Rite Metal Products, 283 NLRB 856 (1987).
14 Tisher testified that Kehl never spoke to him about travel pay.
But I do not credit Tisher’s testimony in that respect.
15 Minke testified that Bolin asked him if Wright was complaining
about travel pay. But Bolin denied that, and I credit Bolin, not
Minke. As noted earlier, Kehl testified that Tisher ‘‘kind of gave me
a look’’ when Kehl showed Tisher the provision of the collective-
bargaining contract relating to delivering paychecks on the job. But
I do not consider that testimony to be evidence of animus. Both
Ring and Tisher informed Bolin, while the job was in progress, that
employees were complaining that they were not receiving travel pay.
But that does not indicate that management felt any animosity to-
ward the employees for voicing the complaints.
not require that layoffs be made in order of seniority.12 )
Rather, the evidence points the other way in that Wright and
Kehl were not the only employees laid off out of seniority.
Covey was too. (See Table I.)
C. Why Were Kehl and Wright Selected for Layoff
Even though Wright and Kehl had no seniority rights, and
even though the work situation at the school called for the
layoff of two employees on or about January 10, WFB obvi-
ously violated the Act if its supervisors chose Wright and
Kehl because the two employees had engaged in protected
concerted activities. See, e.g., City Service Insulation Co.,
266 NLRB 654 (1983).
Two questions that rise are whether Wright and Kehl en-
gaged in protected concerted activities and whether, if they
did, there is any indication that WFB supervisors felt any an-
imosity toward those activities.
D. Wright’s Activities
Tisher and Farley (Local 93’s business agent) told Wright
about the Farley-Bolin agreement by which the union pur-
portedly ‘‘gave away’’ travel pay. Wright, nonetheless, took
the position that the travel pay provision of the collective-
bargaining contract applied to the Logan Middle School site.
Wright expressed that position to Tisher (and to the other
employees) throughout his employment at the site.
Wright’s complaints to Tisher were plainly protected by
the Act. To begin with, several employees, not just Wright,
were concerned about travel pay. And on at least one occa-
sion Wright, at a meeting between the employees and Tisher,
voiced his travel pay complaint explicitly as a spokesman for
the employees. Second, even if Wright had voiced his com-
plaints in an effort to obtain travel pay only for himself,
‘‘they still constituted concerted protected activity since they
were made in the attempt to enforce the provisions of the ex-
isting collective-bargaining agreement.’’ Interboro Contrac-
tors, 157 NLRB 1295 (1966), enfd. 388 F.2d 495 (3d Cir.
1967).13 Finally, while Farley claimed that the travel pay
provision did not apply because of his agreement with Bolin:
(1) as touched on earlier, it is by no means clear that Farley
in fact had the authority to enter into that agreement; and (2)
even if Farley had such authority, that did not withdraw the
protection of the Act from Wright’s expression of his ‘‘hon-
est and reasonable’’ position concerning his right to travel
pay. NLRB v. City Disposal Systems, 465 U.S. 822, 825
(1984).
E. Kehl’s Activities
Soon after beginning work at the school (on December
12), Kehl complained to Tisher about WFB’s failure to pro-
vide travel pay,14 the fact that WFB was not paying a pre-
mium rate for epoxy work, and Tisher’s failure to distribute
the higher paying spray work more evenly. And Kehl acted
as a spokesman for the employees on the one occasion when
WFB failed to deliver paychecks to the employees on the
job. Additionally, in late December, Kehl again acted as a
spokesman for the employees at a meeting of the employees
with Tisher concerning a variety of employee complaints, in-
cluding complaints about travel pay, epoxy pay, and the dis-
tribution of premium pay. All of such activity was, of course,
protected by the Act.
F. Evidence of Animus
As discussed earlier, Ring, in response to a remark by
Minke about epoxy pay, Ring said, ‘‘if you guys keep com-
plaining I’m going to fire the whole crew and bring in a
whole new crew.’’ I have found that Ring did not intend to
fire anyone. Nonetheless Ring’s remark is evidence of, at
least, some irritation with the complaints the employees were
voicing. On the other hand, this case concerns WFB’s actions
regarding Wright and Kehl, and I have found that Ring did
not direct his remark at Kehl (or Wright). Additionally, at an
earlier time, when Minke had raised the subject of travel pay
with Ring, Ring’s response showed a willingness to consider
the matter; Ring said that if travel pay was appropriate, WFB
would pay it to the employees.
Apart from the one remark by Ring about firing ‘‘the
whole crew,’’ there is virtually no credible evidence of ani-
mus by WFB towards the employees for engaging in pro-
tected activities (or, for that matter, for any other reason).15
The one exception (or so it could be argued) concerns a
meeting of employees with Tisher in October or early No-
vember. Farley had already told the employees that they
were not entitled to travel pay on the Logan Middle School
job. But Minke, trying to make the point to Tisher that travel
pay was a contractual right, handed Tisher a copy of the col-
lective-bargaining contract. Tisher’s response was to throw
the contract down onto the floor without looking at it. But
again, if Tisher’s action could be said to be directed at any-
one, it was at Minke, not Kehl (who was not employed by
WFB at the time) or Wright. And I do not interpret Tisher’s
expression of irritation as proof that Tisher would be willing
to terminate the employment of an employee because of the
employee’s protected activity.
Other evidence of management’s responses to employee
complaints tends to show a lack of animus. Tisher rarely
seemed perturbed by employee complaints about pay or
working conditions. Tisher’s stock response to employee
complaints about travel pay was to say that Farley had given
it away. When Kehl first raised the issue of epoxy pay,
Tisher said he would check into it. When Kehl told Tisher
about the contract’s provision regarding the distribution of
premium pay, Tisher said ‘‘okay,’’ and thereafter, as Kehl
testified, ‘‘the breakdown was more evenly distributed.’’ At
the meeting of employees with Tisher in December, Tisher,
1125W. F. BOLIN CO.
according to Kehl, ‘‘took it all in. He was not negative in
his actions; he was not aggressive.’’ As for the paycheck dis-
tribution problem, it is hard to imagine why Kehl’s com-
plaints would have been unduly troubling to management
since WFB’s routine way of handing out paychecks was pre-
cisely the same as the procedure that Kehl demanded.
G. The Credibility of Management’s Testimony About
Why Wright and Kehl Were Selected for Layoff
As discussed earlier, as of January 10 WFB needed only
five painters at the Logan Middle School, not seven, and ‘‘it
was mainly trim work that was left to be finished, doors,
frames, decorating type work’’ (to quote Tisher’s credible
testimony).
It was up to Tisher to decide whom to lay off. As Table
I, supra, shows, Tisher had to decide between Covey, Kehl,
Miller, Spears, Wachenschwanz, and Wright. (Minke was the
job steward and thus had to be the last to be laid off.)
Tisher’s explanation (in full) for choosing to lay off Kehl
and Wright on January 10 (rather than Covey, Miller, Spears,
or Wachenschwanz) was: ‘‘So I just chose the best ones to
do the job and laid the other two off; or I kept the people
I felt were best qualified to finish the job, is what it was.’’
That brings up a burden of proof issue. Was it up to WFB
to prove that Tisher’s testimony about why he laid off Kehl
and Wright was credible? Or was it up to the General Coun-
sel to prove that that testimony was false?
I will assume, for present purposes, that it would be
WFB’s burden if the General Counsel had shown that no lay-
offs were warranted on January 10, or that WFB ordinarily
lays off painters according to seniority on the job, or that
WFB supervisors had shown themselves to be sufficiently
angered by Kehl’s and Wright’s protected activities to con-
sider ending the two painters’ employ with WFB. See Wright
Line, supra. But the record fails to show that any of these
circumstances obtained. That leaves the burden of proof with
the General Counsel to show that Tisher’s testimony about
how he chose Kehl and Wright to lay off was false.
The General Counsel failed to carry that burden.
As to Tisher’s demeanor, as I listened to Tisher’s testi-
mony about why he picked Kehl and Wright for layoff, I
was not able to conclude either that Tisher was telling the
truth or that he was lying.
As for other evidence, the General Counsel’s witnesses
testified credibly that Kehl and Wright were both experi-
enced journeyman painters who had been doing good work
at the Logan Middle School site and were perfectly capable
of handling trim work. But the question is what were the rel-
ative capabilities of Kehl and Wright, on the one hand, and
of Covey, Miller, Spears, and Wachenschwanz, on the other.
Minke did testify, credibly, that in his judgment Kehl and
Wright were ‘‘at least as good’’ as the other painters on the
job. But that does not come close to proving that Tisher
could not reasonably have concluded that, relative to the
other painters, Kehl and Wright were not as productive at the
particular kinds of work that remained to be done as of Janu-
ary 10. And apart from the testimony of Tisher and Minke,
the record gives us no basis for making any comparisons be-
tween the skills of the painters employed by WFB at the
Logan Middle School.
In sum, I have no basis for finding that WFB laid off ei-
ther Kehl or Wright because either employee engaged in ac-
tivities protected by the Act. I accordingly will recommend
that the complaint’s allegation that the layoffs violated Sec-
tion 8(a)(3) and 8(a)(1) of the Act be dismissed.
IV. WRIGHT’S AFFIDAVIT
Wright died between the time he gave an affidavit to a
Board agent and the opening of the hearing. The General
Counsel sought to have Wright’s affidavit made part of the
record. WFB objected and, for reasons discussed at pages
10–20 and 149–150 of the transcript, I sustained WFB’s ob-
jection. (See, in this connection, the Board’s Order in this
proceeding dated August 27, 1992.)
But WFB’s brief raises new issues concerning Wright’s af-
fidavit. WFB has attached to the brief what the brief says is
Wright’s affidavit. The brief invites me to use parts of the
affidavit as evidence in support of WFB’s position.
I have considered whether I should deem this treatment of
the affidavit by WFB to be a withdrawal of its objection to
the introduction of the affidavit into the record and should,
on that basis, receive the affidavit into evidence.
I have decided that that would be inappropriate. WFB’s
brief is clear that WFB continues to oppose the receipt into
evidence of the affidavit. (Br. at 15–19.) WFB’s apparent
reason for appending the affidavit to its brief is to encourage
me to use two short passages as admissions against interest
by Wright. (See WFB’s Br. at 18–19; Fed.R.Evid.
801(d)(2).) I see no reason to penalize WFB for making that
attempt. On the other hand, the place for WFB to have called
my attention to those portions of the affidavit was at the
hearing, not in a posthearing brief. I accordingly have not
considered any part of Wright’s affidavit in deciding this
case.
REMEDY
The recommended Order requires WFB to cease and desist
from its unlawful actions and to post the usual notice at its
office. In addition, the recommended Order requires WFB to
mail copies of the notice to the painters it employed at the
Logan Middle School since it appears that: (1) few if any of
the painters who were employed by WFB at the Logan Mid-
dle School remain employed by WFB; and (2) painters em-
ployed by WFB do not routinely visit the Company’s office.
[Recommended Order omitted from publication.]