Brenal Electric Inc.

552 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Brenal Electric, Inc. and Kenneth Newton. Case 29- CA-12277 26 June 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND CRACRAFT On 17 March 1987 Administrative Law Judge Joel P. Biblowitz issued the attached decision. The Respondent filed exceptions and a supporting brief. The National Labor Relations Board had dele- gated its authority in this proceeding to a three- member panel. The Board had considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, 1 and conclusions, to modify his remedy, 2 and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Brenal Elec- tric, Inc., Bethpage, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order, except that the attached notice is substituted for that of the administrative law judge.3 The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products; 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951) We have carefully examined the record and find no basis for reversing the findings. 2 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest will be computed at the "short-term Fed- eral rate" for the underpayment of taxes as set out in the 1986 amend- ment to 26 U.S.C. § 6621. 3 The judge inadvertently omitted the expunction paragraph from his notice We will therefore attach a new notice to conform to his findings. 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 ordered us to post and abide by this notice. WE WILL NOT discharge, terminate, or refuse to reemploy our employees due to your activities on behalf of Local 25, International Brotherhood of Electrical Workers, AFL-CIO, or any other labor 284 NLRB No. 70 organization, or because you engaged in any other protected concerted activities or participated in any proceeding before the National Labor Rela- tions Board. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL make whole Kenneth Newton, with in- terest, for any loss of earnings he may have suf- fered as a result of our discrimination against him; and WE WILL offer him full and immediate rein- statement to his former job or, if that job no longer exists, to a substantially equivalent position without prejudice to his seniority or other rights and privi- leges. WE WILL notify Kenneth Newton that we have removed from our files any reference to his dis- charge and that the discharge will not be used against him in any way. BRENAL ELECTRIC, INC. Lynn Neugebauer, Esq., for the General Counsel. Frank Lutz Jr., Pro Se DECISION STATEMENT OF THE CASE JOEL P. BIBLowrrz, Administrative Law Judge. This case was tried before me on 8 January 1987 in Brooklyn, New York The complaint, which issued on 14 March 1986, 1 and was based on an unfair labor practice charge filed by Kenneth Newton on 7 February, alleges solely that Brenal Electric, Inc. (Respondent), discharged Newton on 27 January because he joined and assisted Local 25, International Brotherhood of Electrical Work- ers, AFL-CIO (the Union), engaged in other protected concerted activities, and because he was a named discri- minatee in a prior Board matter in which he received backpay from Respondent. This discharge is alleged to violate Section 8(a)(1), (3), and (4) of the Act. On the entire record, including my observation of the demeanor of the witnesses, I make the following FINDINGS OF FAcr I. JURISDICTION AND LABOR ORGANIZATION STATUS There being no dispute, I find that Respondent is an employer within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. FACTS AND ANALYSIS By Decision and Order dated 10 September 1984, 2 the Board found that Respondent violated Section 8(a)(1) 1 Unless indicated otherwise, all dates referred to are in 1986. 2 271 NLRB 1557 BRENAL ELECTRIC 553 and (3) of the Act by discharging its entire unit of elec- tricians, including Newton, on 14 June 1983, shortly after learning of their activities on behalf of the Union, and by engaging in numerous violations of Section 8(a)(1) of the Act. This decision was enforced by the United States Court of Appeals for the Second Circuit on 1 February 1985. On 29 August 1985 the Regional Director for Region 29 issued a backpay specification and notice of hearing. On 24 January, the General Counsel, Respond- ent, and Union entered into a stipulation as to the total amount of backpay and interest due to the 11 discrimina- tees pursuant to the Board Order; this stipulation was ap- proved by an administrative law judge on 30 January. Newton received $4380, the second largest amount. In late February 1985, Respondent offered Newton re- instatement and he returned to Respondent's employ in March 1985; none of the other discriminatees returned to Respondent's employ at that time. Although the stipula- tion referred to above was executed in January, the backpay hearing was scheduled for trial on 3 December 1985. Newton was subpoened by the Board to attend this hearing and he so informed his supervisor, Mitch Vi- zarry. Although he appeared at the hearing, he was told that there was no need for his testimony because the par- ties had agreed on the amount of backpay due each dis- criminatee, subject to the approval of each. Newton tes- tified that, on returning to work the following day, he informed Vizarry, in the presence of the other employ- ees, what had occurred and how much ba.ckpay he would be receiving. Respondent President Frank Lutz testified that he was told that Newton bragged about the settlement to all the employees. On the following day, Newton was called to Lutz' office. He testified that Lutz closed the door and told him that he was getting tired of his big mouth and telling everybody how much money he was getting. Lutz also told Newton that he was dan- gerous on the job because of his illness—he suffers from Petit Mal—a form of epilepsy. Lutz testified that at this meeting he told Newton that whatever business they had was between them and was nobody else's business; he did not tell the foreman and the men, so neither should Newton. According to Newton's testimony, Lutz also said that he had previously taken him off the Long Beach job "because of trouble there." Newton said that was not the reason; it was because after Newton had a seizure on the job, Lutz spoke to Newton's doctor, who recommended that he not work in high exposed places and Lutz took him off the job and transferred him to the Stanford Court job in Wantagh. Newton testified that at the time of this conversation he was working at Stanford Court, "wiring condos." After this conversation with Lutz, he was assigned to digging trenches and decorating Christmas trees with an assistant foreman. When Newton returned to Respondent's employ in March 1985, he was assigned to Respondent's Long I3each job, wiring condos. He stopped working there in May 1985 after he suffered a seizure on the job. At that time, Newton's doctor gave Lutz a note that he did not want Newton working in high exposed places, and Newton was then assigned to the Stanford Court job. On 5 December 1985 Newton was called to another meeting in Lutz' office, attended by Lutz, his son, Robert, and Vizarry who asked if Newton had a union card; he said that he did not and Lutz said that a union card did not mean anything. Vizarry told Lutz that Newton was constantly talking to the other employees about the Union while they were working; Newton denied it. On 11 December 1985 Lutz told Newton that he would have to work at the Stanford Court site because he was short of employees at that location. On that day Newton suffered two seizures at that location; upon re- covering later that day, he told Lutz that he was going to see his doctor the following day and he asked if Lutz would be in his office the following day to speak to his doctor. Newton testified that Lutz said that he wanted a letter from the doctor saying that he would be responsi- ble if Newton was hurt on the job. Lutz testified that he did tell Newton that he wanted a letter from his doctor saying that he was well enough to return to work as an electrician; he did not ask for a letter from the doctor saying that he would be responsible if anything happened to Newton on the job. "No doctor in his right mind could do anything like that." Newton's last day of em- ployment with Respondent was 11 December 1985. The next morning Newton went to see his doctor. After the examination, he asked the doctor to call Lutz, which he did; he was told that Lutz was not in. Newton went to Respondent's office on 27 January.3 Newton testified that he told Lutz that he bad a letter from his doctor4 and he would like to return to work. Lutz said that the letter was not good enough, he would have to speak to his doctor. Newton offered the doctor's note to Lutt but he would neither read nor accept it, he wanted to speak to the doctor. Newton told him that the doctor had tried calling him several times. Lutz said: "I'm not going to chase your doctor down." Newton was asked if Lutz said anything about the kind of doc- tor's note that was required; he testified: "He told me to tell the doctor to have him write a letter stating that he would accept all responsibility for me if I was to get hurt on my job." Lutz testified: If Mr. Newton brought a letter to me stating that he had a doctor's letter that stated he could come back to work or whatever it said, I would have read it. I mean, I would not have taken a letter and just said I don't want it. I would have read the letter and seen what it said. Lutz never specifically denied that Newton offered him a doctor's letter at this 27 January meeting he testified: "If he had a letter at that time that gave him the doctor's okay to come back to work" and "if Mr. Newton had a 3 There is no explanation for the absence of any activity between 12 December 1985 and 27 January. 4 This letter dated 18 December 1985 states that Newton "has been advised to be cautious in his employment as an electrician" and "has been further advised not to work on high altitudes, exposed buildings, scaffold- ing, etc. However, he is permitted to work within enclosed rooms, build- ings, steps, etc." Newton testified that sometime prior to 27 January his doctor informed him that he received a telephone call from some uniden- tified person at Respondent, telling him that he was having seizures regu- larly, on a daily basis. Newton denied it. 554 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD letter that he could go back to work. . ." and "if he had a letter from his doctor, I would have read it." When asked on cross-examination whether Newton told him on 27 January that he had the doctor's note, Lutz testified: "Not that I know of." In an affidavit Lutz gave to the Board on 14 January, Lutz stated: "He spoke to me yes- terday and said he had a doctor's note to show me." At the hearing he testified: "In this statement I remembered a doctor's note, okay. Right now when you asked me I said I did not remember a doctor's note." Lutz testified that because of his insurance coverage, whenever an employee is hurt or has an accident on the job, that employee is required to bring him a doctor's letter saying that he is capable of returning to work. There are no exceptions to that rule. Lutz also testified that sometime after he told Newton that he wanted a letter from his doctor saying that he was capable of re- turning to work as an electrician he had a message that a doctor called him. Lutz returned the call. Lutz asked the doctor if Newton could return to work as an electrician; the doctor said that Newton was not an electrician, he worked on the ground cleaning or repairing trains. Lutz said he was wrong; he operated an electrical concern and Newton worked as an electrician for him. Newton testified on rebuttal that he told his doctor that he was an electrician employed by Respondent, but that he had taken a test given by the New York City Transit Author- ity for a car maintainer. Lutz testified that sometime prior to 1985 he learned that Newton was having seizures and he attempted to ac- commodate him by assigning him to jobs that posed little danger for him. However, he did not always have such jobs available; prior to Christmas 1985, Newton was as- signed to dig trenches and put up Christmas lights. How- ever, after 11 December 1985, the only work he had for Newton was normal electrician's work—up and down on a step ladder and bringing wires across the ceiling. He had no work that did not require working from a height above the floor. In Wright Lines, 251 NLRB 1083 (1980), the Board set forth the rule to apply in discrimination cases such as the instant matter: First, we shall require that the General Counsel make a prima facie showing sufficient to support the inference that protected conduct was a "motivating factor" in the employer's decision. Once this is es- tablished, the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct. The General Counsel has clearly satisfied her burden. Newton worked from March until December 1985 with- out major problems. His employment ceased shortly after Respondent agreed to pay him and the other discrimina- tees for Respondent's past discrimination against them as found by the Board, and shortly after Lutz criticized him for telling his fellow employees of the amount he would receive from Respondent under the proposed Board set- tlement. And an examination of the Board decision in the prior matter leaves little doubt of Respondent's union animus. A more difficult question is whether Respondent has sustained its burden of establishing that the same action would have been taken even absent Newton's protected conducted. Newton's condition clearly placed in question his ability to act, unrestricted, as an electrician. His occa- sional epileptic seizures created a possible danger when he worked on ladders or other elevated surfaces. How- ever, prior to December 1985, he was employed by Re- spondent for 15 months during which time Respondent, apparently, had little difficulty finding appropriate work for Newton to perform. This was especially true of his last 6 months of employment, during that period Re- spondent, admittedly, was aware of Newton's illness. In fact, the record establishes that he had a seizure while on the Long Beach job in May 1985; at that time, Respond- ent was able to transfer him to other work and employ him regularly until the events of early December 1985. I find that Respondent has not sustained his burden under Wright Line, supra. Although the record is clear that Newton's illness somewhat curtailed his occupation as an electrican, as the General Counsel satisfied her burden, it is Respondent's burden to establish why it could not employ Newton in 'appropriate jobs after 11 December 1985 as it had done in the past, and it has not done so Lutz testified that because work was slow, he laid off a number of employees in early February, but he never offered any substantive testimony why he could not provide work for Newton after 27 January. Lutz' testimony regarding the requested doctor's letter was confusing; he admittedly asked Newton to get a doctor's letter regarding his condition (although there is a dispute as to what Lutz wanted in this letter, I fmd that irrelevant to the ultimate determination herein). Newton, whom I found to be a very credible witness, testified that on 27 January he offered the doctor's letter, approving limited work, to Lutz who refused to accept it. Lutz testified that Newton never gave him a letter from his doctor, although he testified that he could not remember the meeting of 27 January; "If he had a letter from his doctor, I would have read it." However, the af- fidavit Lutz gave to the Board states that 2 weeks earlier Newton told him that he had a letter from his doctor. Additionally, Lutz testified that he spoke to Newton's doctor and I find that the doctor told Lutz what he stated in his letter, that Newton was permitted to work within enclosed rooms or buildings. On the basis of this evidence, I credit Newton's testimony that he offered Lutz the doctor's letter on 27 January, but Lutz refused to accept it, knowing that it approved Newton's return to work. Having failed to sustain its burden, I fmd that on 27 January Respondent discharged and refused to employ Newton because of his Board activity, as well as his prior union and concerted activity. CONCLUSIONS OF LAW 1. The Respondent, Brenal Electric, Inc., is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. BRENAL ELECTRIC 555 3. The Respondent violated Section 8(a)(1), (3), and (4) of the Act by discharging and refusing to reemploy Ken- neth Newton on 27 January 1986. THE REMEDY Having found that Respondent has engaged in and is engaging in certain unfair labor practices it will be rec- ommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the poli- cies of the Act, to wit, that Respondent offer Newton immediate reinstatement to his former position, or if that position no longer exists, to a substantially equivalent po- sition, without prejudice to his seniority or other rights and privileges. It is also recommended that Respondent be ordered to make Newton whole for any loss of earn- ings he sustained by reason of his discharge. Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977); see generally Isis Plumbing Co., 138 NLRB 716 (1962). I find the visitatorial clause requested by the General Counsel unnecessary herein. 0. L Willis, Inc., 278 NLRB 203 (1986). On these findings of tact and conclusions of law and on the entire record, I issue the following recommend- ed5 ORDER The Respondent, Brenal Electric, Inc., Bethpage, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging, terminating, or otherwise discriminat- ing against its employees in retaliation for their activities on behalf of the Union, or because they were discrimina- tees or participants in prior Board actions. 5 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. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Newton immediate reinstatement to his former position of employment or, if that position is no longer available, to a substantially similar position with- out prejudice to his seniority or other rights and make him whole for the loss he suffered as a result of the dis- crimination in the manner set forth above in the remedy section. (b)Remove from its files reference to the termination of Newton and notify him in writing that this had been done, and that the evidence of this unlawful activity will not be used as a basis for future actions against him. (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Bethpage, New York location copies of the attached notice marked "Appendix." 6 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable 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 Re- spondent has taken to comply. 6 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 Nation- al 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"