Bardaville Electric

337 309 NLRB No. 43 BARDAVILLE ELECTRIC 1 We have not considered the evidence and exhibits offered by the Respondent’s exceptions because they are not part of the record. 2 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an admin- istrative law judge’s credibility resolutions unless the clear prepon- derance of all the relevant evidence convinces us that they are incor- rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 3 Although the judge did not cite Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), we find that his analysis was consistent with that decision. We find that the General Counsel established its prima facie case that Fashbaugh’s protected conduct— i.e., talking to a union organizer and signing a union authorization card—was a motivating factor in the Respondent’s decision to termi- nate his employment. The burden then shifted to the Respondent to show that the same action would have taken place even in the ab- sence of Fashbaugh’s protected conduct. The judge found, and we agree, that the Respondent failed to meet its burden because its prof- fered explanation was pretextual. The finding of a pretext necessarily means that the reasons advanced by the Respondent either did not exist or were not in fact relied on, thereby leaving intact the infer- ence of wrongful motive established by the General Counsel. Thus, the Board is entitled to infer that here, the Respondent’s true motive for Fashbaugh’s termination was unlawful—i.e., because of Fashbaugh’s protected activity. Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966). Bardaville Electric, Inc. and International Brother- hood of Electrical Workers, AFL–CIO, Local 498. Case 7–CA–32667 October 26, 1992 DECISION AND ORDER BY MEMBERS DEVANEY, OVIATT, AND RAUDABAUGH On June 23, 1992, Administrative Law Judge Frank H. Itkin issued the attached decision. The Respondent filed exceptions and a supporting brief.1 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 brief and has de- cided to affirm the judge’s rulings, findings,2 and con- clusions3 and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge and orders that the Respondent, Bardaville Electric, Inc., Traverse City, Michigan, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Order. A. Bradley Howell, Esq., for the General Counsel. Christy Bardaville, pro se, for the Respondent. DECISION FRANK H. ITKIN, Administrative Law Judge. An unfair labor practice charge was filed in the above case on Decem- ber 10, 1991, and a complaint issued on January 16, 1992. General Counsel alleges that Respondent Employer violated Section 8(a)(1) and (3) of the National Labor Relations Act by discharging employee David Fashbaugh on November 11, 1991, because of his protected union activities. Respondent Employer denies violating the Act as alleged. Respondent claims that it ‘‘laid off employee David Fashbaugh due to economic circumstances.’’ A hearing was held on the issues raised in Traverse City, Michigan, on May 20, 1992, and, on the entire record, in- cluding my observation of the demeanor of the witnesses, I make the following FINDINGS OF FACT The Charging Party is admittedly a labor organization and Respondent is admittedly an employer engaged in commerce as alleged. Respondent Employer is an electrical contractor. David Fashbaugh was hired by Respondent during the spring of 1989 and was ‘‘laid off’’ on November 11, 1991. He was a journeyman electrician at the time. Fashbaugh recalled, by way of background, that in the fall of 1990 he had the fol- lowing conversation with Bruce Bardaville, owner and presi- dent of Respondent: I [Fashbaugh] informed him [Bruce Bardaville] that my father wanted me to quit . . . and go to work for Long Electric which is a Union contractor. . . . I wasn’t really interested in trying to organize a Union, just that my father really wanted me to go to work for a Union contractor. . . . He [Bruce Bardaville] said that I should do whatever I thought I had to do, that he really didn’t want me to leave. Fashbaugh remained an employee of Respondent. Fashbaugh’s father was and is an executive board member of the Union. Later, in the spring of 1990, Bruce Bardaville commented to Fashbaugh, while examining a job application, that he [Bruce Bardaville] probably won’t hire [the appli- cant] because . . . he thought [the applicant] had deal- ings with the Union . . . he really didn’t want to hire anybody that had anything to do with Unions. And, subsequently, also in the spring of 1990, Bruce Bardaville apprised Fashbaugh that a former employee, Glen Socia, was an incompetent employee . . . and [Bruce Bardaville] thought [Socia] had dealings with the Union . . . and that was one of the reasons why he laid [Socia] off. Fashbaugh next testified that commencing about late sum- mer 1991 he spoke with Union Organizer Richard Taylor ‘‘about organizing Bardaville Electric.’’ Fashbaugh told Tay- lor that he ‘‘was more interested in joining the Union.’’ Tay- lor wanted Fashbaugh to ‘‘organize Bardaville.’’ Fashbaugh signed a union authorization card for Taylor at the Union’s 338 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 See R. Exh. 1, the Employer’s 1991 profit and loss worksheets or records, which had been prepared in July 1991 and then January 1992 reflecting the respective prior 6-month periods. The Employer’s fiscal year ended on December 31, 1991. Christy Bardaville claimed that she ‘‘would review [the] financial figures with [their] accountant at the end of each quarter.’’ 2 Fashbaugh explained that he had volunteered for such a layoff in the spring of 1990 to help his coworkers but no layoff was imple- mented. Fashbaugh noted that he had not volunteered for such a lay- off in November 1991. hall on November 8, 1991 (G.C. Exh. 2). He also discussed the Union with three coworkers including Mike Michaels. Fashbaugh specifically recalled that on Friday, November 8, while he was speaking with Taylor at the Union’s hall about signing a union authorization card and organizing Bardaville, coworker Mike Michaels telephoned Taylor ‘‘to cancel an appointment’’ with Taylor. Fashbaugh then ex- plained to Taylor that he thought that Mike Michaels was possibly leading Rich- ard Taylor on because [Fashbaugh] knew from past ex- perience that Mike Michaels was pretty much anti- Union . . . . Fashbaugh, as he further testified, telephoned coworker Michaels on Saturday, November 9. Fashbaugh then asked Michaels ‘‘what he thought about Unions’’ and Michaels made clear that he was ‘‘against Unions.’’ During this con- versation, Fashbaugh informed Michaels that he had signed a union authorization card; that he had a ‘‘job lined up at Alpine Electric’’ but ‘‘didn’t have a definite starting date’’; and that he ‘‘he was quite undecided on whether to try to organize Bardaville.’’ Fashbaugh testified that he reported for work at Respond- ent’s facility on Monday, November 11. Coworker Michaels was there in the office. Fashbaugh told Michaels that he ‘‘wasn’t going to try to organize Bardaville’’ but ‘‘was just going to quit and go to work for Alpine when they called.’’ Christy Bardaville, wife of owner Bruce Bardaville and of- fice manager and secretary-treasurer of Respondent, then called Fashbaugh into the office. She apprised Fashbaugh that ‘‘work had really slowed down and that there wasn’t enough work to keep [him] busy.’’ Fashbaugh responded that Chris Moutsatson, a fellow employee that [he] was working with at the time . . . on a church job, would have trouble trying to keep up with the carpenters and masons [on that job]. Christy Bardaville replied that ‘‘Bruce Bardaville was going to put his tools on and take up the slack of [Fashbaugh] not being there.’’ Fashbaugh noted that work remained to be done on the ‘‘church job’’ and he was also working at other sites about this same time where additional work remained to be done. Fashbaugh further noted that Friday was ‘‘pay day’’ at Bardaville Electric and he had received his check on Friday, November 8, without incident or any warning of being ‘‘laid off.’’ In addition, there were ‘‘other times’’ when ‘‘work was slow’’ at Bardaville and he had not been laid off. And, he was at the time ‘‘third in line . . . in seniority’’ among some six journeymen electricians. Fashbaugh subsequently received a copy of General Coun- sel’s Exhibit 3, a letter from the Employer dated November 11, stating that ‘‘effective’’ November 11 he had been ‘‘laid off’’ ‘‘due to lack of work.’’ Fashbaugh was instructed to re- turn his ‘‘gas card’’; ‘‘office keys’’; ‘‘vehicle keys’’; ‘‘ac- cess card’’; ‘‘uniforms’’; and ‘‘Company tools.’’ The letter concluded: ‘‘Upon the return of all of the above items the Company shall issue your payroll check.’’ Fashbaugh was never ‘‘called back to work.’’ James Weber, a friend of both Fashbaugh and Bruce Bardaville, recalled a conversation with Bruce Bardaville during early December 1991 concerning the layoff of Fashbaugh. Weber testified: I [Weber] talked to Bruce and I says, so I heard Dave was causing too many waves maybe, and he [Bruce Bardaville] says, yes. And then I said what’s going on and he says, we’re just busy, keeping busy; . . . if I wanted a Union in there I would have had one in there a long time ago . . . Dave might have been listening to his dad too much. Christy Bardaville, wife of owner Bruce Bardaville and of- fice manager and secretary-treasurer of Respondent, was the only witness for the Employer. Christy Bardaville testified that ‘‘we were having a terrible cash flow problem’’; ‘‘we had a very wonderful first half’’ of fiscal 1991; ‘‘if it wasn’t for the first half of 1991 we wouldn’t have survived the last half of 1991’’; ‘‘by looking at the numbers from the account- ants at the end of the third quarter there were some decisions that had to be made . . . we really had to lay someone off due to lack of cash . . . [for] the first time’’; ‘‘there was a substantial negative working capital in the last half of 1991.’’1 Christy Bardaville admittedly selected Fashbaugh for lay- off out of seniority. She claimed that Fashbaugh had pre- viously volunteered to take such a layoff.2 She acknowledged that the ‘‘church job,’’ referred to above by Fashbaugh, ‘‘went on through the spring of 1992.’’ She acknowledged that ‘‘it was no secret that [Fashbaugh’s] father had been en- couraging him for some time to work for a union contractor’’ and ‘‘from time to time’’ her husband, Bruce, ‘‘does express his bad feelings towards the Union’’ ‘‘about the principles and the way they operate.’’ Finally, she acknowledged that she was aware about September 1991 ‘‘that someone from the Union was contacting [their] people.’’ I credit the testimony of Fashbaugh and Weber as recited above. Their testimony is in large part undisputed and sub- stantiated in part by admissions of Respondent. They im- pressed me as trustworthy and reliable witnesses. Insofar as the testimony of Christy Bardaville contradicts the above tes- timony of Fashbaugh and Weber, I find on this record the testimony of the latter witnesses to be more complete, reli- able, and trustworthy. In short, as discussed below, I do not credit the Employer’s assertion to the effect that Fashbaugh was ‘‘laid off’’ for economic reasons. Instead, I find and conclude that Fashbaugh was summarily fired on November 11 because of his protected union activities. Discussion Section 7 of the National Labor Relations Act guarantees employees ‘‘the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through rep- 339 BARDAVILLE ELECTRIC 3 I would also reject any argument that Fashbaugh would have, in any event, been laid off at the time for lawful economic reasons. As noted above, the Employer has not credibly and sufficiently estab- lished here that Fashbaugh would have been laid off on November 11 for lawful economic reasons. resentatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,’’ as well as ‘‘the right to refrain from any or all such activities.’’ Section 8(a)(1) of the Act makes it an unfair labor practice ‘‘to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.’’ Section 8(a)(3) forbids ‘‘discrimi- nation in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization . . . .’’ An employer runs afoul of the above provisions by firing an employee be- cause he has engaged in protected Section 7 activities. The credited and essentially undisputed evidence of record shows that Respondent Employer was opposed to the Union representing its employees. Company President and owner Bruce Bardaville had made clear that he [Bruce Bardaville] probably won’t hire [an appli- cant] because . . . he thought [the applicant] had deal- ings with the Union . . . he really didn’t want to hire anybody that had anything to do with Unions. He similarly had made clear that he ‘‘thought’’ a former em- ployee had dealings with the Union . . . and that was one of the reasons why he laid [the employee] off. Employee David Fashbaugh credibly testified that com- mencing about late summer 1991 he spoke with Union orga- nizer Richard Taylor ‘‘about organizing Bardaville Electric.’’ Fashbaugh signed a union authorization card for Taylor at the Union’s hall on Friday, November 8, 1991 (G.C. Exh. 2). He also discussed the Union with three coworkers including Mike Michaels. Fashbaugh specifically recalled that on Sat- urday November 9 he telephoned coworker Michaels. Fashbaugh then asked Michaels ‘‘what he thought about Unions’’ and Michaels made clear that he was ‘‘against Unions.’’ During this conversation, Fashbaugh informed Mi- chaels that he had signed a union authorization card; that he had a ‘‘job lined up at Alpine Electric’’ but ‘‘didn’t have a definite starting date’’; and that he ‘‘he was quite undecided on whether to try to organize Bardaville.’’ Fashbaugh reported for work at Respondent’s facility on Monday, November 11. Coworker Michaels was there in the office. Christy Bardaville, wife of owner Bruce Bardaville and office manager and secretary-treasurer of Respondent, then apprised Fashbaugh that ‘‘work had really slowed down and that there wasn’t enough work to keep [him] busy.’’ Fashbaugh responded that Chris Moutsatson, a fellow employee that [he] was working with at the time . . . on a church job, would have trouble trying to keep up with the carpenters and masons [on that job]. Christy Bardaville replied that ‘‘Bruce Bardaville was going to put his tools on and take up the slack of [Fashbaugh] not being there.’’ Fashbaugh noted that work remained to be done on the ‘‘church job’’ and he was also working at other sites about this same time where additional work remained to be done. Fashbaugh further noted that Friday was ‘‘pay day’’ at Bardaville Electric and he had received his check on Friday, November 8, without incident or any warning of being ‘‘laid off.’’ In addition, there were ‘‘other times’’ when ‘‘work was slow’’ at Bardaville and he had not been laid off. And, he was at the time ‘‘third in line . . . in seniority’’ among some six journeymen electricians. James Weber, a friend of both Fashbaugh and Bruce Bardaville, credibly recalled a conversation with Bruce Bardaville during early December 1991 concerning the layoff of Fashbaugh. Weber testified: I [Weber] talked to Bruce and I says, so I heard Dave was causing too many waves maybe, and he [Bruce Bardaville] says, yes. And then I said what’s going on and he says, we’re just busy, keeping busy; . . . if I wanted a Union in there I would have had one in there a long time ago . . . Dave might have been listening to his dad too much. Fashbaugh’s father, as the Employer knew, was a Union offi- cial. On this record, I find and conclude that employee Fashbaugh was summarily fired on Monday, November 11, because the Employer had become aware of his activities on behalf of the Union. I reject the Employer’s assertion that the employee was suddenly laid off because of ‘‘economic rea- sons.’’ Fashbaugh was terminated out of seniority; work re- mained for him to do; and he had not been warned or noti- fied of a layoff when paid on Friday, November 8. The Em- ployer has not credibly explained why it suddenly picked out Fashbaugh out of seniority for this layoff for alleged eco- nomic reasons which apparently had existed for some time. As Bruce Bardaville later explained: [I]f I wanted a Union in there I would have had one in there a long time ago; . . . Dave might have been listening to his dad too much. In sum, I find and conclude that Respondent Employer violated Section 8(a)(1) and (3) of the Act as alleged.3 CONCLUSIONS OF LAW 1. Respondent Employer is an employer engaged in com- merce as alleged. 2. Charging Party Union is a labor organization as alleged. 3. Respondent Employer violated Section 8(a)(1) and (3) of the National Labor Relations Act by discharging employee David Fashbaugh on November 11, 1991, because of his pro- tected union activities. 4. The unfair labor practices found above affect commerce as alleged. REMEDY To remedy the unfair labor practices found above, Re- spondent Employer will be directed to cease and desist from engaging in the conduct found unlawful or like or related conduct and to post the attached notice. Affirmatively, Re- spondent Employer will be directed to offer employee 340 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 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. 5 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.’’ Fashbaugh immediate and full reinstatement to his former job or, in the event his former job no longer exists, to a sub- stantially equivalent job without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of his unlawful firing by making payment to him of a sum of money equal to that which he normally would have earned from the date of Respondent’s discrimination to the date of its offer of re- instatement, less net earnings during such period, with back- pay to be computed as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), and interest as provided in New Hori- zon’s for the Retarded, 283 NLRB 1173 (1987). See gen- erally Isis Plumbing Co., 138 NLRB 716 (1962). Further, Respondent Employer will be directed to preserve and make available to the Board or its agents on request all payroll records and reports and all other records necessary to deter- mine backpay under the terms of this Decision. And, Re- spondent Employer will also be directed to remove from its files any reference to the firing of Fashbaugh found unlawful herein, in accordance with Sterling Sugars, 261 NLRB 472 (1982). On these findings of fact and conclusions of law and on the entire record, I issue the following recommended4 ORDER The Respondent, Bardaville Electric, Inc., Traverse City, Michigan, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discriminatorily discharging employees because they support International Brotherhood of Electrical Workers, Local No. 498, or any other labor organization, or because they engage in other protected concerted activities. (b) In any like or related manner interfering with, restrain- ing, or coercing its employees in the exercise of the rights guaranteed to them under Section 7 of the National Labor Relations Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act. (a) Offer employee David Fashbaugh immediate and full reinstatement to his former job or, in the event his former job no longer exists, to a substantially equivalent job without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suf- fered by reason of his unlawful firing with interest as pro- vided in the Board’s decision. (b) Expunge from its files any reference to the firing of employee Fashbaugh and notify him in writing that this has been done and that evidence of this unlawful firing will not be used as a basis for future personnel action against him. (c) Preserve and, on request, make available to the Board or its agents for examination or copying all payroll records, social security payment records, timecards, personnel records and reports, as well as all other records necessary or useful in analyzing and computing the amount of backpay and com- pliance, as provided in this decision. (d) Post at its Traverse City, Michigan facility copies of the attached notice marked ‘‘Appendix.’’5 Copies of the no- tice, on forms provided by the Regional Director for Region 7, after being signed by the Respondent’s authorized rep- resentative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in con- spicuous places including all places where notices to employ- ees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 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, Bardaville Electric, Inc., have violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT discriminatorily discharge employees be- cause they support International Brotherhood of Electrical Workers, Local No. 498, or any other labor organization, or because they engage in other protected concerted activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed to them under Section 7 of the National Labor Relations Act. WE WILL offer employee David Fashbaugh immediate and full reinstatement to his former job or in the event his former job no longer exists to a substantially equivalent job without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suf- fered by reason of his unlawful firing with interest as pro- vided in the Board’s decision. WE WILL remove from our files any reference to the firing of employee Fashbaugh and notify him in writing that this has been done and that evidence of this unlawful firing will not be used as a basis for future personnel action against him. BARDAVILLE ELECTRIC, INC.