Yusuf Mohamad Excavation, Inc.

National Labor Relations Board - Board Decisions

May 12, 1987

283 N.L.R.B. 961 (N.L.R.B. 1987)

YUSUF MOHAMAD EXCAVATION 961
Yusuf Mohamad Excavation, Inc. and International
Union of Operating Engineers , Local No. 673,
AFL.-CIO. Case 12-CA-12053
12 May 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
STEPHENS AND CRACRAFT
On 30 January 1987 Administrative Law Judge
Irwin Kaplan issued the attached decision. The
Charging Party filed exceptions and a, supporting
brief, and the Respondent filed, a brief in opposi-
tion.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, n and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
i The Charging Party has excepted to some of the ,fudge's credibility
findings. The Board's established policy is not to overrule an administra-
tive 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 re-
versing the findings.
statement to one of the laid-off employees linking the
layoffs to the union activities.
The Respondent filed an answer conceding, inter alia,
jurisdictional facts and the supervisory and agency status
of certain individuals but denying that it committed any
unfair labor practices. Accordingto the Respondent, the
decision to lay off employees was predicated solely on
business considerations unrelated to union activities. The
Respondent noted, inter alia, that the alleged discrimina-
tees were separated ."contemporaneously with the dis-
charge of other employees as a result of a work slow
down."
Based on the entire record, including my observations
of the demeanor of the witnesses as they testified, and
after careful consideration of the posttrial briefs, I make
the following
FINDINGS OF FACT
1. JURISDICTION
The Respondent, Yusuf Mohamad Excavation, Inc., is
a Florida corporation engaged in the building and con-
struction industry as a road building and land develop-
ment contractor and maintains an office and place of
business in Orlando, Florida. During the past 12 months,
the Respondent, in connection with its aforenoted busi-
ness operations, purchased and received at its Orlando
place of business products, goods, and materials valued
in excess of $50,000 directly from points located outside
the State of Florida. It, is admitted, the record supports,
and I find, that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
It is admitted, and I find, that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
Eduardo Soto, Esq., for, the General Counsel.
Dennis F. Fountain, Esq. (Belleville & Aspinwall, P.A.), of
Longwood, Florida, 'for the Respondent.
Travis E. Woodham, of Orlando, Florida, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
IRWIN KAPLAN, Administrative Law Judge . This case
was tried before me in Orlando, Florida , on 15 Septem-
ber 1986 . The underlying charges were filed by the
International Union of Operating Engineers , Local 673,
AFL-CIO (Charging Party or Union) on 20 May 1986
and gave rise to a complaint and notice of hearing dated
29 July 1986 (amended ' at the hearing). I
In essence, it is alleged that Yusuf Mohamad Excava-
tion, Inc.2 (Respondent), violated Section 8(a)(3) and (1)
of the National Labor 'Relations Act (the Act) by laying
off seven employees on 14 May 1986 because of their
union activities . Further, it is alleged that Respondent in-
dependently violated Section 8(a)(1) of the Act by a
At the hearing, par 5 of the complaint was deleted.
The name of the Employer appears as amended at the hearing
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Sequence of Events
The Respondent has' been engaged in the, business of
land clearing and general excavation in the Orlando,
Florida area for the past 12 years. Yusuf Mohamad is
Respondent's owner and president. According to Moha-
mad, because a major customer, the Anden Group of
Florida (Anden) had instructed him to hold off further
excavation work on a property known as the "'Lindfield
job," he decided to lay off a number of employees,
mostly heavy equipment operators on 14 May 1986.3
Mohamad testified that after working on the Lindfield
job for about 2 days, he was called by Ralph Spano, an
owner of Anden, and told:,"[W]e've got problems, please
stop. Remove the equipment from the job." A followup
letter dated 9 May from Spano to the attention of Nick
Luxon, Mohamad's assistant in charge of contract negoti-
ations stated as follows:
8 All dates hereinafter refer to the year 1986, unless otherwise indicat-
ed
283 NLRB No. 147
962 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I regret to inform you that the subdivision known
as Lindfield P.U.D. scheduled to start on or before
April 30, 1986, has been rescheduled .to a later date.
Per our discussion, and my discussion with Mr.
Mohamad, I have elected not to continue any site
-work until,all the situations that are troubling this
project are resolved. [R. Exh. 2]
The Lindfield job involved a substantial amount of
"dirt work" and, as such, the use of operators and heavy
equipment, i.e., dozers. According to Mohamad, he had
planned to employ his operators from his Lake Buena
Vista project (Buena Vista) where, assertedly, the bulk
of the clearing, and dirt work was completed, on the
Lindfield job'. Thus, when the Lindfield project was put
-on hold, Mohamad, assertedly, did not have -enough
work to maintain those operators and instructed James
Long, the general superintendent, to lay them off. Long
testified that he in turn told his several area superintend-
ents , on a one-to-one basis, that they had to reduce their
crews and to select employees for layoffs where the
work was least needed.4 Patrick Crowe, the area super-
intendent at the Buena, Vista location, Respondent' s larg-
est project, selected the employees (majority of the al-
leged discriminatees) laid off from that job.5
The union activity began in early May, approximately
2 'weeks before the layoffs. Then, some eight employees
had expressed among themselves their unhappiness with
working conditions, which led one of them, Keith
Dominy, on, 2'r May, to contact the Union and arrange a
meeting. The meeting was held on 5 May after work
about 5:30 p.m. - at the` Waffle House, across the street
from the Buena Vista jobsite. There, Dominy, along with
fellow operators Donald Graham and Richard Uber met
with Union Business Agent Travis (Ed) Woodham and
they discussed union representation. Dominy testified
that over the next few days he obtained signed union au-
thorization cards from eight employees across the street
from the jobsite at a Texaco station.6
On 12 May, a second meeting with Business Agent
Woodham was field at a 7-Eleven store, a half mile from,
the jobsite. At this meeting, Dominy, Graham, and Uber
were joined by employees Walter Whitebirch, Roger
Owens, and Michale Desmondez. All of them with the
exception of Desmondez^were laid off on 14 May.7
According to the General Counsel, on 15 May, Super-
intendent Crowe acknowledged that, the employee lay-
offs were linked to their union activities. Whitebirch tes-
' Respondent employed approximately 100 employees on some 8 or 9
projects
The record disclosed that 10 employees had been laid .off between 14
and 17, May including the 7 alleged discriminatees and 2 other employees
had, resigned (Jt, Exh. 1)
6 Dominy named only seven of the card signers: himself, Donald
Graham, Gordon Martin, Roger Owens, 'Richard Uber, Wally White-
birch Jr, and an employee named Roy. Dominy may have inadvertently
omitted the name of Gregory Nelson, an alleged discrimmatee. The
record is silent otherwise regarding Nelson's union activity. As for the
employee named Roy, the record disclosed that this individual had to be
Roy Brunner. (See it Exh 1 )
7 It also appears that all of them with the exception of Desmondez,
had signed union authorization cards and are alleged discriminatees. (See
fn. 6, supra.) Although Brunner also, signed a union card and was laid off
on 14 May, he is not an alleged discnminatee
tified that he met Crowe, on 15 May (I, day after the lay-
offs), around 4:30 p.m., at the 7-Eleven store and initiat-
ed a brief conversation. As further testified by White-
birch, he told Crowe that he knew the employees were
fired because of the union cards and the latter in re-
sponse stated, "Yes, if I knew about the Union before
anybody else in the Company, that I could have straight-
ened it out and everybody would have kept their jobs."
Whitebirch then assertedly asked Crowe whether he
would hire him back, to -which the latter responded,
"No, there wasn't no [sic] work." Crowe denied any
such conversation with Whitebirch or ever having made
any reference to the Union. Crowe acknowledged, how-
ever, that on a number of occasions after the layoffs, he
and Whitebirch passed each other going in and out of
the 7-Eleven store, where they "probably" exchanged
greetings.
After Whitebirch was laid off, he obtained other em-
ployment immediately next to his former jobsite. He was
laid off from that job on 30 May. According to White-
birch, that same day, he had a conversation with Moha-
mad's brother, Shake, who told him that Respondent had
obtained two, new accounts and would be rehiring em-
ployees. Whitebirch testified that Shake asked him
whether he had signed a union and, when Whitebirch
denied that he had, Shake suggested that Whitebirch ap-
proach Long or Crowe about getting' his job back.8
Later that day, Whitebirch approached Long at the
Buena Vista project and asked him if the Company was
hiring. Long assertedly asked Whitebirch his name and
whether he signed a union card. Whitebirch testified that
when he answered in the negative,- Long reached into a
truck and pulled out a piece of paper and inquired of
Whitebirch why he had signed a union card. According
to Whitebirch, although he did not see the contents on
the piece of paper, he had guessed that his name was
listed as a union card signer and, as such, he explained to
Long that he signed because he had not received a wage
increase . Whitebirch was 'assertedly told by Long that
the Company was not hiring. According to Long, on the
occasion in question, Whitebirch asked him whether he
could get a job but as he, Long, did not then know
whether the Company could use Whitebirch, he referred
Whitebirch to Crowe.9
B. Discussion and Conclusions
,The General Counsel, citing the Board's causation test
in discriminatory 8(a)(3) discharge cases , as set forth 'in
Wright Line,10 contends that he had made a prima facie
showing to support an inference that the "employees'
union activities were a motivating factor in Respondent's
decision to lay them off," This, assertedly having been
accomplished, the- General Counsel also contends that
the Respondent failed to.,meet its burden by showing that
the disputed layoffs would have occurred notwithstand-
8 Mohamad's brother "Shake" is not alleged to be a statutory supervi-
sor or agent of Respondent The individual referred to as. "Shake," did
not appear as a witness.
9 It is not alleged that Long's comments to Whitebirch on the occasion
in question , independently constituted a violation of Sec . 8(a)(1)
10 251 NLRB 1083 (1980).
YUSUF MOHAMAD EXCAVATION 963
ing the protected or union activity, as required under
Wright Line." t
In assessing whether the General Counsel has estab-
lished a prima facie case as a threshold matter, it is noted
that the record disclosed certain critical elements tending
to support the allegations. Thus, the record clearly re-
vealed that at least six of the seven alleged discriminatees
had engaged in union activities shortly before they were
laid off. These same employees, inter alia, had signed
union authorization cards and attended a union meeting
near the jobsite only 2 days earlier. Although Respond-
ent informed these employees that they were laid off for
lack of work, it is noted, that they had worked overtime
each of the preceding 3'weeks.
As for other critical elements, "knowledge" and
"animus," the General Counsel relies almost entirely on
statements assertedly made by Crowe and Long to
Whitebirch, after the layoffs had occurred. It is noted,
however, that the testimony of Crowe and Long, if cred-
ited, reflect that the statements ascribed to them could
not have been made. For example, Crowe denied having
a conversation with anyone about the Union. In particu-
lar, Crowe denied that he had any conversation with
Whitebircb after the layoffs. According to Crowe, he
first learned about the Union in preparation for the in-
stant trial. Long, for his part, admitted that Whitebirch
approached him for a job subsequent to the layoffs, but
asserted that he merely referred him to Crowe.
As noted previously, Whitebirch testified that he met
Crowe at the 7-Eleven store the day after the layoffs and
that Crowe confirmed that the employees were dis-
charged because .of their union activities. According to
Whitebirch, 'Crowe told him that if he knew about the
Union before the others (presumably, Mohamad and
Long), "he could have straightened it out and everybody
would have kept their jobs." I find it implausible and
highly unlikely that Crowe made this statement, noting
particularly that Whitebirch also testified that immediate-
ly following Crowe's statement he, Whitebirch, asked
about a job and was told by Crowe that he could not
hire him because there was not any, work. In rejecting
Whitebirch's testimony, it is noted that it is somewhat in-
congruous for Crowe to confirm that the Union was the
core of the problem and in the next breath state that
there was not any work. Contrary to the General Coun-
sel, I also fail to discern how "Whitebirch's testimony is
corroborated by Crowe's admission that he had seen
Whitebirch at the 7-Eleven store many times after May
14." Crowe admitted only that he saw Whitebirch at the
store on a number of occasions and that they had ex-
changed, greetings; he denied that he conversed with
Whitebirch. The fact that Crowe saw Whitebirch fre-
quently at the 7-Eleven store, without more, does not
mean that Crowe would confide in Whitebirch; or that
his testimony corroborated Whitebirch's in any meaning-
ful sense. Such chance meetings between them could be
anticipated particularly where, as here, Respondent's job-
site as well as Whitebirch's home and work location
were all in the same immediate area of the 7-Eleven
store in question.
13 Id. at 1089
On 30 May, Whitebirch was laid off from his new job.
According to Whitebirch's uncorroborated testimony, at
some unspecified time that day, he learned from Moha-
mad's brother Shake, that Respondent had obtained two
new accounts and would rehire employees. Shake asser-
tedly asked Whitebirch if he had signed a union card,
which the latter denied, and Shake then assertedly re-
ferred Whitebirch to Long or Crowe.
As noted previously, Shake is not alleged to be a statu-
tory supervisor or agent. In fact, the record is devoid of
any evidence regarding Shake's connection with the Re-
spondent. Still, the General Counsel urges that an ad-
verse inference is warranted against the Respondent for
its unexplained failure to call Shake as a witness, citing
NLRB v. Cornell of California, 577 F.2d 513, (9th Cir.
1978), enfg. 222 NLRB 303 (1976), and KBMS, Inc., 278
NLRB 826, 848-849 (1986). These cases are factually dis-
tinguishable and inapposite. In both cases, the Respond-
ent relied on employee statements of disaffection as a
basis for withdrawing recognition from an incumbent
union. Here, unlike the cited cases, the General Counsel
relies on the uncalled witness' statement as binding
against Respondent. In these circumstances, in which the
General Counsel has not made an effort to explain his
own failure to call Shake-as a corroborative witness, and
noting particularly an absence of any supervisory or
agency allegation, I find that an adverse inference is im-
proper. Compare Wayne Construction, 259 NLRB 571, fn.
1, par. 2 (1981), in which the Board 'refused to draw an
adverse inference noting that there was no basis for in-
ferring that a co-owner was not equally available to both
the'Respondent an d the General Counsel.
Having rejected Whitebirch's testimony regarding his
conversation with Shake on 30 May, as binding against
Respondent, I also find little reason to credit his account
of his subsequent conversation with Long that same day.
Although it is undisputed that 'Whitebirch approached
Long about his job, the testimony regarding what tran-
spired between them on that occasion in virtually all
other respects is in conflict.
In rejecting Whitebirch's version in material respects,
it is noted that the General Counsel has largely substitut-
ed opinion, conjecture, and speculation for probative evi-
dence. For example, according -to Whitebirch, after he
denied ,signing a union card (in response to Long's in-
quiry),-,Long asked,Whitebirch his name and pulled out a
,sheet of paper and questioned Whitebirch why he had
signed a union' card despite the aforesaid denial. The
General Counsel characterized the sheet of paper as a
"hit list" of union supporters. In support thereof, the
General Counsel noted that Crowe had compiled a list of
names of employees to be laid off. However, as noted
previously, the record is devoid of any credible evidence
of Crowe's knowledge of union activity.12 I also find
12 Respondent's "Employment Termination" forms indicate that each
of the alleged discrtminatees was recommended to be rehired (R. Exhs.
1(a)-(g)). Most of these employees were supervised by Crowe These
records tend to cast further doubt on the General Counsel's claim that
Crowe prepared a "hit list" of union supporters who were not to be re-
called
964 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
plausible and credible Crowe' s explanation for delineat-
ing at -that time the best and needed employees from
those less needed to meet Respondent' s exigencies., In
any event, there was no showing that the piece of paper
assertedly referred to by Long was the same list com-
piiled by Crowe. Significantly, in terms of discounting
Whitebirch's testimony as probative evidence is that he
admittedly never saw what was on the piece of paper in
question.
According to Long's testimony (implicitly), he did not
have to refer to any list of names because he had recog-
nized Whitebirch from his earlier employment. In these
circumstances, noting also an absence of any other
animus or knowledge ascribed to Long, I find no cogent
basis to reject,his assertion that he recognized, White-
birch, particularly because the latter had left Respond-
ent's employ only 2 weeks earlier.
In the instant , case, it is noted, that virtually all the
union activity took place off the jobsite. Although the
Board -has not hesitated to infer Respondent's knowledge
of employees' protected activities from the surrounding
circumstances in appropriate cases, the evidence does not
support such an inference. Compare, Dr. Frederick Da-
vidowitz, D.D.S., 277 NLRB 1046, 1049 (1985) (the re-
spondent, conducted a series of "coercive meetings" on
the first working day after the discharge to prevent the
union from organizing); Masai (U.S.A.) Inc., 281 NLRB
327, 332 (1986) (while the respondent's supervisors had
denied that they were told about the alleged discrimina-
tee's union activities, they admitted that they were told
that union cards were passed around and that union sup-
porters were identified).13
Aside from the General Counsel's, failure to demon-
strate by credible evidence that Respondent harbored an-
tiunion sentiments br that Respondent had knowledge of
the employees' union activities, the record disclosed still
other factors tending to militate against a prima facie
case. Thus, in addition' to the seven alleged discrimina-
tees laid off on 14 May, two other employees, Roy Brun-
ner and Randy' Ellis were also laid off for lack of work
that same day and five other employees left Respond-
ent's employ shortly thereafter. (Jt. Exhs. 1(a)-(e)). Col-
lectively, this group represented Respondent's largest re-
duction in force; the vast majority of them, including the
alleged discriminatees, were `operators. In this regard, it
is noted, that the Respondent did not hire or rehire 'an-
other operator until 2 June when Brunner, a union card
signer, was rehired. Ellis, on the other hand, was not in-
volved in union activities and has not been recalled. Op-
erator Gregory Nelson was also laid off on 14 May and
has not been recalled. Nelson, an alleged discriminatee
did not testify nor is there any evidence that he engaged
in union activities.
" In Davidowitz, the Board also noted an active "rumor milt" or
"grapevine" so that hardly anything of significance escaped manage-
ment's attention
The record disclosed that_Respondent hired or rehired
17 equipment operators between 4 June and 3 Septem-
ber, but did not recall any of the alleged discriminatees.
However, the -record is largely silent regarding their
overall qualifications or for which of Respondent's eight
or nine projects they were assigned to ,work. Further,
the record disclosed that after the layoffs, relatively little
work was performed by equipment operators at the
Buena Vista jobsite, where the alleged discriminatees had
been hired primarily to work. In any event, the record is
far from clear that Responent maintained any formal or
consistent policy regarding recalling laid-off employees.
Although Respondent's reasons for its actions are not
free of doubt,14 the Board has observed that even when
the record raises "substantial suspicions" regarding em-
ployee discharges, the General Counsel is not relieved of
"the burden of proving that Respondent acted with an
illegal motive." Affiliated Hospital Products, 245 NLRB
703 fn. 1 (1979). Here, the record failed to establish any
animus or knowledge of union activities on- the part, of
Respondent.- This, as well as the other factors noted
above, persuades me that the General Counsel has -failed
to prove, prima facie, that Respondent acted with an "il-
legal motive." Accordingly, I shall recommend, that the
allegations be dismissed in their entirety.
CONCLUSIONS OF LAW
1. The Respondent, ' Yusuf Mohamad Excavation, Inc.,
is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. International Union of Operating Engineers, Local
No. 673, AFL-CIO is a labor organization within the
meaning of Section 2(5) of the Act.
3. The General Counsel has not proved by a prepon-
derance of the credible evidence that Respondent laid- off
employees in violation of Section 8(a)(3) and-(1) of the
Act. -
4. The General Counsel has not established -that Re-
spondent independently violated Section 8(a)(1) of the
Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed15 -
ORDER
The complaint is dismissed in its entirety.
r' The timing of the layoffs, inter aha, is not free of suspicion coming
2 days after a union meeting On the other hand, the layoffs followed the
shutdown of the Lindfield project, as ordered by Respondent's customer
(Anden) and this project has not resumed operations. According to Mo-
hamad , he had planned on using the Buena Vista operators (the laid-off
employees) on the Lindfield project
15 If no exceptions are filed as provided by Sec. 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 10148 of the Rules , be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses