Denholme & Mohr, Inc

DENHOLME & MOHR INC Denholme & Mohr, Inc and William A Fulwiler Case 19-CA-19119 December 29, 1988 DECISION AND ORDER By CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND HIGGINS On April 27, 1988, Administrative Law Judge Fredrick C Herzog issued the attached decision The Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in sup- port of the judge's decision 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, i and conclusions 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, Denholme & Mohr, Inc, Seattle, Washington, its officers, agents, successors, and assigns, shall take the action set forth in the Order i The Respondent has excepted to some of the judge s credibility find rags 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 The Respondent has excepted to the judge s finding that the layoff of core employee Ron Holman was a violation and to Holman s inclusion in the recommended remedy and Order Although the General Counsel initially stated on the record that Holman was not a part of the case since he was not named in the complaint the judge determined that Holman s layoff was related to the subject matter of the complaint and more im portantly that the issue of Holman s layoff was fully and fairly litigated without objection from the Respondent We agree for the following rea sons The Board and the courts have found violations where the allega Mons were not made in the complaint as long as the matter was fully and fairly litigated at the hearing See Alexanders Restaurant & Lounge 228 NLRB 165 (1977) enfd 586 F 2d 1300 (9th Cir 1978) Southern Newspa pers 255 NLRB 154 (1981) The judge correctly determined that the issue is whether evidence exists to support a finding that members of the group as a whole rather than employees individually were the victims of discriminatory motivation Because identical conduct gave rise to all the layoffs there is no possibility that had the Respondent been given notice of the additional violation it might have litigated the matter differently See Soule Glass Co v NLRB 652 F 2d 1055 1074 (1st Cir 1981) Fur thermore the Respondent does not argue surprise or show that it was denied due process Therefore we find the judge did not err in finding this additional violation Accordingly the Respondents exception is without merit Member Johansen would not include employee Ron Holman in the remedy and Order Holman was not included in the complaint and at no time did the General Counsel move to amend the complaint to include him During the hearing the General Counsel stated that Holman did not wish to participate in the case 61 Stephanie R Cottrell Esq, for the General Counsel Michael J Killeen Esq (Davis Wright & Jones) of Seat Ile Washington, for the Respondent William A Fulwiler Eqs, of Seattle Washington for the Charging Party DECISION STATEMENT OF THE CASE FREDERICK C HERZOG Administrative Law Judge This case was heard before me in Seattle, Washington, on November 17 and 18, 1987 and is based on a charge filed by William A Fulwiler (Fulwiler) an individual about May 5, 1987,1 alleging generally that Denholme & Mohr Inc (Respondent) committed certain violations of Section 8(a)(3) and (1) of the National Labor Relations Act (Act) About August 17 the Regional Director for Region 19 issued a complaint and notice of hearing alleg mg violations of Section 8(a)(3) and (1) of the Act Re spondent thereafter filed a timely answer to the allega tions contained within the complaint All parties appeared at the hearing through counsel or in person and were given full opportunity to participate, to introduce relevant evidence to examine and cross ex amine witnesses, to argue orally, and to file briefs Based on the record my consideration of the briefs filed by counsel for the General Counsel and counsel for Re spondent, and my observation of the demeanor of the witnesses I make the following FINDINGS OF FACT I BUSINESS OF RESPONDENT The parties agree and I find that Respondent is a State of Washington corporation with an office and place of business in Seattle, Washington where it is engaged in the business of commercial painting contracting that during the 12 months preceding the issuance of the com plaint, a representative period , Respondent had gross sales of goods and services valued in excess of $500 000 that during the same period Respondent purchased and caused to be transferred and delivered to its facilities within the State of Washington goods and materials valued in excess of $50,000 directly from sources outside the State, or from suppliers within the State which in turn obtained such goods and materials directly from sources outside the State and that Respondent is and has been at all times material , the an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act II THE LABOR ORGANIZATION The parties agree, and I find that Painters Local 300 (Union) is, and at all times material has been, a labor or ganization within the meaning of Section 2(5) of the Act i All dates shall refer to the calendar year 1987 unless stated otherwise 292 NLRB No 13 62 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD III THE ALLEGED UNFAIR LABOR PRACTICES A Contentions of the Parties Counsel for the General Counsel argues that Respond ent violated Section 8(a)(3) and (1) of the Act by laying off employees William Al Fulwiler, George Terry McDougall, and Raymond Wirtz on April 10 because of the activities of these employees in participating in a strike and engaging in picketing of Respondent during the course of the labor dispute between Painters Local 300 among other labor organizations , and Respondent as a member of a multiemployer bargaining unit associa tion known as Western Washington Chapter of the Paint ing and Decorating Contractors of America Respondent admits that it laid off these three employ ees about April 10, together with a fourth employee, Ron Holman, but denies any discriminatory motivation in so doing It asserts instead that its actions were based solely on lawful business considerations No other issues are advanced by the parties B The Facts 1 The background Respondent operates in the Seattle, Washington area as a small painting subcontractor in the building and con struction industry It generally maintains a work force of approximately 8 to 12 painters and utilitymen occasion ally dipping to a low of 5 to 6 total employees and some times going as high as 17 total employees In nearly two decades of existence it has earned an outstanding reputa tion for high quality work It is totally owned by two men each with a 50 percent share-Gary 0 Mohr its president and Alex Denholme In general Denholme functions as field superintendent and Mohr tends to Re spondent s administrative functions They are assisted by two lower level managers-Ervin Erv Bistodeau field supervisor and Marvin Marv Pearson, manager Den holme and Bistodeau are former longtime members of the Union Due to Respondents small size occasionally Denholme, Pearson and Bistodeau themselves, perform work in the field For some years Respondent has been a member of and signatory to the Western Washington Chapter of the Painting and Decorating Contractors of America a mul tiemployer bargaining association that has had successive collective bargaining agreements with among other labor organizations the Union Counsel for the General Counsel concedes that Respondent has never been the subject of previous unfair labor practice charges and that in the instant case there is no independent evidence of violations of Section 8(a)(1) of the Act that might be demonstrative of animus toward the Union Over the years Respondent developed a practice of re taming on its payroll certain core employees even during periods when there was little work , due to the seasonal nature of the business or transient inability to secure bids Other employees were hired and laid off pursuant to contractual provisions of Respondents col lective bargaining agreement which contains a hiring hall clause Core employees while theoretically subject to such provisions, were in practice kept busy doing various types of work that Respondent was apparently able to in effect, save up for just such slack periods Em ployees came to be included in the group known as core employees by virtue of excellence and dependability in their work and length of tenure with Respondent The three employees named in the charge and complaint, as well as Ron Holman, constituted Respondents core em ployees at all times relevant , with tenure ranging from 5 to 12 years each Indeed, the quality of workmanship ex hibited by each of these men was thought so high by Re spondent that it paid them premium wages, in addition to keeping them continually employed during slack periods While none of the core employees was thought to be a supervisor within the meaning of the Act, Respondent nonetheless considered them sufficiently experienced and responsible that it expected them to run jobs and to provide direction and instruction for less senior or expe rienced employees Based on their status, Respondent here concedes that each of its four core employees were excellent workers and that none had ever been subjected to discipline for any reason relating to job performance prior to the occurrences set out below Approximately two thirds of Respondents business was obtained from two clients Aldrich & Associates and Puget West with each contributing roughly equally Further in figuring Respondents cost, Respondent con sidered that approximately 50 percent of its cost on exte rior work came from the cost of labor, while on interior work the percentage ran between 50 and 75 percent 2 The strike and protected activities The relevant collective bargaining agreement between the businesses that had become members and authorized the Western Washington Chapter of the Painting and Decorating Contractors of America and various local unions and a district council of the Brotherhood of Painters & Allied Trades had a term from July 1 1983 to May 31 1986 The Union was among those represent ed by Brotherhood of Painters & Allied Trades in nego tiations for a new contract However piior to agreemert on and execution of a new collective bargaining agree ment an economic strike was called by the Union and other labor organizations Respondent was among the struck employers The credible undenied testimony of several employees was to the effect that at the time of the strike Respond ent was in serious need of workers because it had sex eral large projects underway at the time that it offered the four core employees back door work during the course of the strike and that they uniformly declined such offers of back door work In the course of this strike during June and early July 1986 Respondent was picketed by the Union for only a portion of 1 day It is undisputed that Respondents officials were aware that the picketing on behalf of the Union was carried out by the four core employees and the credible undenied testi mony shows that while the picketing was going on, a business agent for the Union informed Denholme that the four core employees would be put to work for new employers beginning the following week DENHOLME & MOHR INC The following day, a Saturday in July 1986, Den holme, accompanied by Pearson, met the four core em ployees, apparently by accident at a fast food restaurant There they had a conversation lasting approximately 20 to 30 minutes In the course of this conversation Den holme was advised by the core employees that they had obtained employment with other employers commencing the following Monday According to the credited testi mony of Fulwiler, Denholme became visibly agitated and repeatedly assured the four core employees that he would energetically press his partner , Mohr, to sign an interim agreement with the Union , so that Respondent would not be deprived of the services of its four core employees by virtue of their having taken new jobs In fact, Respondent executed such an interim agree ment with the Union later that same day An agent of the Union advised the four core employees of this occur rence and instructed them to report back to work for Respondent on the following Monday 3 Poststrike conduct They did so However, according to the testimony of all those who were asked about the subject, there was a change in the work atmosphere The three core employ ees who testified described a situation in which they were treated coldly and in which their actions were more closely scrutinized than they had experienced pre viously, a marked departure from the open friendly almost familial relationship that had obtained for several years Respondents witnesses on the other hand, would have it that it was not management that became cold and distant, but rather the core employees, and, further, that the core employees exhibited signs of sullen and be grudging attitudes toward their work (However, I must conclude that managements observations in this respect have reference to a much later period of time, inasmuch as Respondent at trial sought to tie this change in the four core employees behavior to dissatisfaction with the new collective bargaining agreement eventually reached between the parties that collective bargaining agree ment was not entered into until late March) On execu tion of the collective bargaining agreement Mohr had a meeting with the four core employees explained its pro visions to them and gave them a general pep talk The three core employees2 who testified in general, denied the behaviour attributed to them and claimed that while they were not happy with the wage and other concessions forced on them by the new collective bargaining agreement they nevertheless continued to work with the same pride and professionalism previously exhibited 4 The events of April 9 This state of affairs continued until April 9 On that date, Gerald Aldrich," owner of one of the two most im portant customers of Respondent, received a call from a man named Peters, who was associated with or the owner of a custom cabinetry subcontractor At the time 2 Each of the three seemed generally credible in testimonial demeanor 3 Aldrich was generally credible while testifying 63 Aldrich had some 30 to 50 projects in progress, and used Respondent on some 75 to 80 percent of them, including projects at the Kingdome, the Nordstrom Tower, and 1700 Medical Suite According to Aldrich, Peters report ed to him that he had almost had a fight with an employ ee of Respondent named Terry (evidently Terry McDougall) Aldrich obtained bnef confirmation of Peters assertion from his own project superintendent, and then, himself, went to the project and observed McDougall , as he put it, acting and commenting in an unbecoming manner According to Aldrich McDougall seemed to be full of aggravation Still later that day Al drich was in the Nordstrom Tower and spoke to Al Ful wiler, with whom he had what he termed a friendly, polite conversation However he stated that Fulwiler told him that he was thinking of becoming a truckdriver Aldrich testified that he sensed frustration in Fulwiler and that Fulwiler was not a happy employee for Re spondent Thus Aldrich then returned to his office and telephoned Mohr complaining about the near fisticuffs and attitude problems Aldrich admitted that the work that he had seen was excellent but demanded that Mohr look into the problem and make sure that it did not impact upon his jobs Aldrich stated that he has since learned of the layoffs of all four core employees, al though his complaints related to only two such men He has noted no problems since that time Mohr, feeling that his business relationship with Al drich was endangered,4 sat down and discussed the matter of the core employees tenure with Denholme and Pearson Additionally, that same day, he contacted Bisto deau and discussed the matter with him According to Mohr, it was he who actually made the decision to lay off the four core employees he reached this decision during the course of his discussions with Denholme, Pearson, and Bistodeau on April 9 5 5 Factors in Mohr s decision to lay off the core employees Mohr listed the factors that went into his decision making process as follows 1 Aldrich s complaints set out above 6 2 A customer complaint received from the owner of Bentson Construction Company regarding some work done by Respondent at Issaquah Courthouse, in which Fulwiler had in the fall of 1986 installed some fabric on approximately a dozen panels which later required re working at a total cost of approximately 24 man hours 4 Mohr recalled another complaint from Aldrich evidently forgotten by Aldrich This incident concerned an allegation that one of Aldrich s own foremen had asked one of Mohr s employees for a pencil and re ceived only verbal abuse in return 5 Denholme testified that the four core employees were laid off be cause of their bad attitude and acknowledged that he participated in the decision to lay them off 6 On two occasions during his testimony Mohr stated that it was Al drich s complaints coming as they did from one of Respondents most important customers and implying the prospect of lost business which were the most important factor in his decision making process As will be seen at another point in his testimony he emphatically claimed that it was another factor that was the most important 64 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD due to the fact that the fabric developed bubbles after it had dried ' 3 Complaints from another subcontractor named Stelte8 addressed to Pearson and Denholme and, evi dently, indirectly as well to Aldrich regarding alleged harassment of Stelte s employees, failure to work hard, and fears that the slow work pace of core employees would result in an unjustifiably high bill 9 4 A customer complaint from Cindy Meagher, con cerning a bill on a job performed by Wirtz and Holman 10 5 A telephone call from a project manager at the Nordstrom Tower about spilled paint on a rug 11 6 On one occasion Fulwiler, working with Pearson, was installing a piece of bulletproof glass on a job for the Diebold Security Company While Pearson was tempo ranly absent from the job, Fulwiler attempted to install the glass by himself In the process the glass broke 12 7 Harassment of Pearson 13 by the core employees 14 8 Harassment of Bistodeau 15 by the core employ ees 16 9 The core employees alleged dislike of Denholme and their indulgences in a bash Alex (Denholme) syn drome 17 7 Mohr acknowledged that at the time of this occurrence he had not held Fulwiler to be at fault and that accidents such as this occur from time to time 8 Stelte s credibility was diminished by an apparent bias against the core employees e Neither Pearson nor Denholme ever saw fit to intervene instruct or discipline any of the core employees regarding this alleged harassment or slow work Further inquiry concerning the feared overbilling demonstrat ed it to be insubstantial 10 Mohr acknowledged that he did not fault the employees on this matter and that his checking into the matter at the time of its occurrence led him to believe that the employees were not at fault despite the fact that he chose to make an adjustment in the bill for the sake of good cus tomer relations 11 Wirtz failed to notice while working on this job that his paint can had a hole in it and that it dnpped paint on the carpeting wherever he went Mohr acknowledged that he had no reason to believe that Wirtz error in this regard was deliberate and that the repair cost of approxi mately $5000 was paid by insurance 12 The breakage of this glass cost approximately $250 to $300 Mohr once again stated that when it occurred he did not hold Fulwiler respon sible for it and put it down as one of those accidents that do occur from time to time and that it was not done deliberately Pearson never disci plined nor remonstrated with Fulwiler for his actions in this respect 13 Neither Pearson nor Chester McKelvey was a credible witness for Respondent Both seemed eager to magnify the list of errors and omis sions of the four core employees to the point that I concluded that their credibility was damaged by bias 14 Pearson was evidently a new supervisor and one who had not worked his way up through the ranks but had instead come from college to work for Respondent Pearson and Bistodeau and others believed that he was resented by the core employees and that he was harassed by the core employees Whatever the truth of the matter is it is acknowledged that neither Pearson nor any other supervisor ever rebuked the core em ployees or instructed them to perform in any fashion other than as they were performing with respect to Pearson is Bistodeau was a generally credible witness 18 Similarly it is asserted that Bistodeau was resented by the four core employees and that they hassled him by such tactics as asking him un necessary questions Again it is undisputed that neither Bistodeau nor any other supervisor of Respondent ever rebuked instructed or disci plined the core employees regarding this alleged harassment 17 It is asserted that employees did not like Denholme and even dem onstrated their dislike by gossiping about him when he was not present in the presence of other managers and even in the presence of employees and managers of other corporations Once more however there is no 10 Giving Pearson a tough time on the 1700 Build ing project, with the result that its tight scheduling re quired the personal intervention of Denholme, who came and worked on the job himself 18 11 Some oversprayed paint requiring recaulking on a job at the Boeing Flight Museum project 19 12 Mohr s inability to accept a bad attitude or poor quality work, illustrative of such an attitude, according to Mohr, was an incident at the Kingdome on April 9 While working there, Pearson asked McDougall where to find some paint Instead of cooperating and finding it, McDougall responded, We used to care but now we don t care anymore According to Mohr, Bistodeau confirmed to him that similar negative remarks had been made by the core employees at the Kingdome in preced ing weeks Indeed, Bistodeau informed Mohr that an em ployee named Tony had once approached him apparent ly secretively to assure him that Tony was not part of the slowdown According to Mohr he asked Bisto deau whether he was sure of the facts and Bistodeau as sured him that he was 20 6 Denholme s input into the decision to lay off Denholme s21 recital of reasons for the layoff was not so extensive as Mohr s As noted earlier he stated that they were laid off because of their bad attitude Specifi cally, he mentioned the overspray and poor caulking done at the 1700 Building project 22 However, in addi tion to the list compiled by Mohr, Denholme added an incident in which Fulwiler allegedly allowed painting to proceed with the wrong color on the project done for Boeing Further inquiry led Denholme to admit that there was no evidence that Fulwiler had deliberately concealed any knowledge of the color change made by the architect on the job or even that Fulwiler knew the architect had made the change 23 Denholme reported evidence of any effort made by any official of Respondent over the months that such conduct was allegedly occurnng to do anything to warn discipline correct or instruct the offending employees 18 Once again there is no evidence of any managenal intervention with the offending employees 19 Once again there is no evidence of any discipline or any warning thereof being imposed on any of the employees in this connection More over Mohr acknowledged that there was no direct evidence that the four core employees bore responsibility for this other than his feeling that they should have known and exercised judgment to prevent its oc currence and that they should have taken it on themselves to direct the work of a new classification of worker known as a utilityman 20 Mohr testified vehemently that it was this problem with attitude which formed the most important factor in the decision to lay off the four core employees seemingly at variance with his earlier testimony concerning the importance attached to the complaint he had received from Aldrich The full identity of the workman named Tony was never disclosed and there is no evidence in the record that in fact a slow down had actually occurred or if so how Bistodeau or others reached such a determination Further there is no evidence in the record of any attempt made by any management official to rebuke instruct discipline or counsel any employee concerning an alleged slowdown 21 Denholme was a generally credible witness 22 Significantly it turned out that this job was completed before the strike ever began long before the new collective bargaining agreement was executed which required concessions from the four core employees and others 23 Regarding another incident mentioned by Mohr concerning the trouble with the other subcontractors (probably Stelte) employees by Continued DENHOLME & MOHR INC 65 having taken Fulwiler aside for a talk on one occasion and that the employees shaped up after that He also testified that on another occasion his talk to Fulwiler led Fulwiler to threaten to quit Finally, he stated that he had talked to Holman at the Boeing Flight Museum project Otherwise all Respondents owners and supervi sors were unanimous in their admission that they had never disciplined nor warned any of the four core em ployees concerning their job performance or conduct on the job, and that they had never instructed them to per form their jobs differently than they were doing 24 Similarly, none of the four core employees was ever even asked by any supervisor or manager for his version of any of these incidents recited above, or whether any of them was true Mohr excused this failure at trial by testifying that matters had already deteriorated past that point, and that he had already held several informal meetings with them 25 Mohr went on to explain it was his opinion on April 9 that placing the affected employ ees on probation, while warning them, would have been a futility, notwithstanding their good record as employ ees in the years preceding 7 The layoffs The next morning, April 10, Mohr and Denholme sent for the four core employees to be brought in from the jobs they were working on They arrived, in pairs and were told that they were laid off for a cooling off period Though one asked the reason for the layoff, Re spondent s owners refused to provide them any reason other than bitterness and the need for a cooling off period 26 8 Melody McDougall s version of her conversation with Mohr About a week or two later Melody McDougall, the wife of George Terry McDougall telephoned Mohr She did so at the insistence of Fulwiler and over the ob jection of her husband She testified that she did so be cause of Fulwiler's expression of concern that Mohr might be giving him poor references and that such refer ences would impede him in his efforts to secure new em ployment Whatever the reason, however it is undis puted that she did in fact call Mohr and talk to him In doing so, she falsely stated to Mohr that she was calling from the personnel department of a fictitious painting company where Fulwiler had applied for work She went on to explain that she was checking references and wanted to find out from Mohr about Fulwiler one or more of the four core employees Denholme admitted that the problem was that a cabinet guy was giving them the four core em ployees a bad time 24 Indeed at one point Denholme testified lamely in excuse of man agement s failure that he had heard reports of peer pressure from other employees directed toward the four core employees that they stop their griping and whining 25 No evidence concerning the dates locations attendees or subject matters of any such informal meetings was ever offered 26 In its brief Respondent attaches significance to the fact that only one such employee expressed anger a viewpoint I cannot understand or share According to Melody McDougall, Mohr told her that Fulwiler had been a longtime employee of his, and that Fulwiler was a good painter, this caused her, so she testi fled to inquire of Mohr why Fulwiler had been laid off if he was so good She testified that Mohr then explained to her that he had laid off several people because they were loyal to the Union 27 Then, in response to her in quiry about whether her fictitious company would have any problems in light of the fact that it was a union shop, Mohr allegedly told her that the men were not going to be a problem but were used to a different style and that there was bitterness that caused him to lay the men off for a cooling off' period 9 Mohr s version of his conversation with Melody McDougall Mohr's version of this conversation contains many si milarities, but also, of course substantial contradictions with that advanced by Melody McDougall He con firmed the fact that he had received a telephone call from her, and the general substance of their conversa tion Indeed, he confirmed that he told her that Fulwiler was a good man and that he had confirmed to Melody McDougall that her employer would encounter no prob lem with Fulwiler working in a union shop However, Mohr was emphatic in his denial that his motive behind the layoffs was because of the core employees union ac tivities or that he ever so stated to Melody McDougall Similarly he denied that he ever mentioned bitterness or a cooling off period to her in this conversation 28 noted though that Mohr wavered when questioned fur ther about whether he said anything to Melody McDou gall concerning the concept of loyalty whether to the Union or otherwise Explaining, he contended that he became suspicious during the course of this conversation about its bona fides and therefore chose to be evasive in response to her questions, saying very little except for vague generalities In fact he testified that at one point his suspicions became so strong that all he said was We did have a problem Mohr also equivocated while testa fying concerning just when during the phone call he had become suspicious These matters are of some importance, because they were illustrative of disparities between Mohr s testimony at trial and his pretrial affidavit, furnished to the Board by Mohr s counsel as well as internally within his testi mony at trial For example while testifying on direct, Mohr stated that Fulwiler was a good painter when he put his mind to it but that Fulwiler did not always put his mind to it and that they had had some disagreements and different points of view Later as noted above, he stated that 27 Melody McDougall recited her recollection of this phone conversa tion five separate times in her testimony though she was never asked about it on cross examination or on recross examination On occasions she recalled Mohr stating that the men had been laid off because they had been loyal union men on other occasions she recalled Mohr stating simply that he laid them off and then immediately following with the ex planation that they were loyal union men 28 Respondent argues that Melody McDougall has apparently over heard such terms used in connection with preparation for this case and inserted them into her testimony in an effort to enhance it 66 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD having become suspicious, he did not want to get into such details so he dust told Melody McDougall that Re spondent did have a problem However, further cross ex animation caused him to testify that he could not remem ber whether it was he who asked Melody McDougall or it was she who told him that she worked for a union shop Thus, there were two instances demonstrated during his testimony that he did tell Melody McDougall about a problem or problems, disagreements and differ ent points of view Yet, in his affidavit provided prior to trial by his counsel, he had stated flatly that In neither case was there any mention of problems with the em ployees, nor were any reasons given for their layoffs When confronted with the affidavit during trial Mohr appeared to confirm the accuracy of the affidavit over his testimony at trial, saying that if some matter had not been mentioned in the affidavit then he did not actually say it This latter assertion points to another conflict within his testimony, inasmuch as it seems clear that the affida vit contained no reference to his asserted statement to Melody McDougall that Fulwiler was a good painter when he put his mind to it but that he did not always put his mind to it Melody McDougall is, in my opinion, an interested witness, in view of her relationship to a party who could possibly benefit financially from the outcome of this case She claimed in her testimony that when she made the telephone call, she had no such interest because her hus band was then declining to join Fulwiler in pressing an unfair labor practice charge, or even in his effort to find out what sort of recommendation was being given by Mohr Finally it is claimed, and based on my observa tion I tend to agree that Melody McDougall lacks the sophistication to fully appreciate the significance of the remark that she attributed to Mohr While testifying Melody McDougall was somewhat halting and, as I have noted, she gave slightly differing versions of the conver sation when repeatedly compelled to work her way through it 29 In view of this, and in consideration of her obvious interest in the outcome of the case I was initial ly skeptical of her testimony Indeed I caused her to go through the story several times in an effort to see wheth er she would accept an apparent invitation to magnify or embellish on it She did not and to the contrary eventu ally impressed me as a sincere witness attempting to do her best to tell the truth as she recalled it Accordingly I have concluded that I have no reason based on her de meanor or any internal inconsistency within her testimo ny to discredit her Mohr s testimony on the same subject matter im pressed me in the opposite fashion Although I was ini tially favorably impressed with his testimony and his de meanor, I eventually formed the opinion that he was not a trustworthy witness In addition to the inconsistencies mentioned above, it became apparent during the course of his testimony that he would gladly enlarge magnify and embellish any fault brought to his attention in the work of any of the employees involved notwithstanding his failure to check on the accuracy of such reports or even to provide an opportunity for the affected employ ees to rebut them, notwithstanding their previous superi or records Accordingly, I have determined to credit the testimo ny of Melody McDougall over that of Mohr in any area of conflict I do so as set forth above, based not only on the relative consistencies of their testimony, but also on comparing their testimonial demeanor C Analysis and Conclusions 1 The prima facie case In NLRB v Transportation Management Corp 462 US 393 (1983) the Supreme Court affirmed the test enunciated by the Board in Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir 1981), cert denied 455 U S 989 (1982), for determining whether an employ ee was discharged because of the exercise of Section 7 rights Under Wright Line counsel for the General Coun sel under Section 10(c) of the Act has the burden of es tablishing a prima facie case that the employees protect ed conduct was a substantial motivating factor in the em ployees discharge or other adverse actions taken by the employer But once counsel for the General Counsel has satisfied this burden an employer may still avoid liability under the Act by proving by a preponderance of the evi dence an affirmative defense that it would have taken the same action even if the unlawful motivation had not ex isted In this case the evidence is undisputed that the four core employees participated during the summer of 1986 in an economic strike against Respondent and that during a portion of 1 day the same employees were the only employees of Respondent to engage in picketing of Respondent I accept counsel for the General Counsel s argument that such conduct was contrary to Respond ent s financial interests at the time and when combined with the Respondents knowledge of their intent to secure employment elsewhere led to Respondents capit ulation in signing an interim agreement with the Union However in light of the fact that there is no evidence of independent unfair labor practices and the fact that Respondent had no history of unfair labor practices or any proclivity to violate the Act in disregard of the rights afforded to employees under the Act, I would nor mally be more than a little hesitant in concluding that such employee activity had been shown to be a motivat ing factor in the discharge of the employees 30 For 29I would find no substantial difference in the legal effect flowing from either of the two versions supplied by her One supplies a very direct statement of motivation while the other has such an immediate linkage between the fact of the layoffs and Mohr s statement concerning the loyalties of the four core employees that the only reasonable interpre tation is that the two statements were linked in Mohr s mind and that the latter was intended by Mohr to be explanatory of the former so While the term layoff was used through the course of this trial it seems to me and I so find that these were in fact discharges Denholme admitted that the penoa of time contemplated for the layoff to last was approximately a year or two and both Denholme and Mohr admitted that at the time of the so called layoffs they had no current intention of ever reemploying any of the four core employees As a consequence I deem each of the four to have been discharged DENHOLME & MOHR INC while it seems clear and obvious that such activities by the four core employees constituted protected concerted union activities, squarely within the meaning of Section 7 of the Act, they are just as clearly quite remote in time from the actions taken by Respondent against them And had it not been for Melody McDougall s credited testimony concerning Mohr's express statement regard ing his motivation for the layoffs, there would be no direct evidence of either animus or unlawful motivation on the part of Respondent in taking such action None theless, in view of the fact that I have credited Melody McDougall s testimony over that of Mohr, it is apparent that counsel for the General Counsel has established a strong prima facie case I so find and conclude 2 Respondents defense However, it is also true that Respondent did possess some reasons to discipline its four core employees The catalyst for action among these, in my opinion, was the complaint received from a substantial and valued cus tomer Aldrich In examining the information supplied to Respondent by Aldrich, it must be noted that much of what Aldrich said was vague, attributed to only two of the four employees and seemingly susceptible to remedy by discipline of a lesser nature, such as a warning or in struction I am highly dubious moreover about the testimony concerning the extent to which Respondent in fact was impelled to action by the remainder of the laundry list of reasons advanced by either Mohr or Denholme for the decision to lay off or discharge the four core em ployees After all, many of those alleged offenses were admitted by Respondent to have been mere mistakes, of the type experienced from time to time in running a painting business Others were quite stale and remote in time Still others were based on vague and generalized complaints Others were shown by Mohr s own testimo ny to have been given little weight at the time they oc curred or to have been condoned And all have been shown to have been countenanced to one degree or an other by all of Respondents supervisors and managers, in the sense that no employee was ever rebuked, warned, or even instructed to change his ways except in the very few instances testified to by Denholme I am mindful that an employer need not act with per fect consistency or justice in administering its business and that I am not free to substitute my own for valid even if seemingly harsh business judgments NLRB v Waterman Steamship Corp, 309 U S 206 218-219 (1940) For as has been frequently pointed out,31 management may discharge for good reason a bad reason, or no reason at all Great Plains Beef Co, 241 NLRB 948 (1979) And my subjective impression of what I may have done were I in Respondents business position may not be interposed between the manager and those who are managed Super Tire Stores, 236 NLRB 877 fn 1 (1978) Although the discipline may seem extreme, it does not necessarily follow that the ascribed reasons for 31 At least until the recent successes of plaintiff's in actions for dam ages in employment at will cases 67 discharge are false J Ray McDermott & Co, 233 NLRB 946, 952 (1977) However, that valid grounds may exist for terminating an employee is not dispositive of whether that termina tion was unlawful NLRB v Texas Independent Oil Co 232 F 2d 447, 450 (9th Cir 1956) For a violation of the Act is established when, despite the existence of a valid reason or reasons for discharge the evidence shows that the employer has resorted to such reason or reasons as the basis for building a case against an employee due to his union activities United Aircraft Corp v NLRB 440 F 2d 85, 92 (2d Cir 1971), or as a result of a campaign of watchful waiting for union enthusiasts to give the slightest reason or pretext to get rid of them because of their union activities NLRB v Lipman Bros Inc, 355 F 2d 15 21 (1st Cir 1966) Management cannot dis charge where the real motivating factor is discriminato ry, for that is what Section 8(a)(3) of the Act forbids Blue Bell Inc, 238 NLRB 555 (1978) Here, Respondents failure to investigate the alleged misconduct of its employees fully and fairly or even to provide them with an opportunity to rebut the accusa tions made against them, suggests the presence of dis criminatory motivation Tama Meat Packing Corp, 230 NLRB 116 129 (1977), and cases cited therein This is particularly true when one recalls that the four core em ployees were summarily laid off (i e discharged) with treatment quite disparate from that afforded the mysteri ous employee who was counseled by Denholme about a utilityman whose poor workmanship required a job to be redone The utilityman was a short term employee yet was accorded an opportunity to correct any perceived deficiencies brought to his attention, unlike the four core employees Such disparate treatment has been long held indicative of unlawful motive in terminations Quality Inn Albany 283 NLRB 1146 (1987) An employers failure, as here to conduct an even ru dimentary investigation and its failure to permit an ac cused employee to respond to charges of misconduct may be validly deemed an indication of unlawful motiva tion K & M Electronics 283 NLRB 279 (1987) This con clusion seems doubly reasonable where seasoned and su perior employees, such as the four core employees were summarily laid off (i e discharged) thereby apparently causing Respondent to face the prospect of replacing them with someone unseasoned, for such action appar ently flies in the face of Respondents own financial well being Compare NLRB v Davidson Rubber Co 305 F 2d 166 169 (1st Cir 1962) NLRB v Stage Employees IATSE Local 776 303 F 2d 513, 519 (9th Cir 1962), cert denied 371 U S 826 (1962) Finally the convenience with which an employer may as here disguise an unlawful motivation by refer ring to an employees bad attitude has long been rec ognized Marion Steel Co 278 NLRB 897 (1986) Thus based on the foregoing it seems evident that there are many serious questions raised and suspicions re maining based not only on the General Counsels prima facie case, but also arising out of much of the evidence presented by Respondent itself Accordingly I conclude that Respondent's evidence that good cause existed is un 68 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD reliable and is certainly insufficient to overcome the prima facie case of counsel for the General Counsel by demonstrating that Respondent would have taken the same action even if the unlawful motivation had not ex isted 13 Summary I regard the credited testimony of Melody McDougall as direct evidence of both animus and motivation on the part of Respondent in laying off its four core employees on April 10 not merely permitting but requiring, that such conduct be found violative of Section 8(a)(3) and (1) of the Act For, by that testimony Respondent is shown to have directly admitted that it did precisely what Section 8(a)(3) of the Act forbids, i e , discriminat ing against employees because they were loyal union men, who had demonstrated their loyalty to the Union only months before by engaging in a strike and picket ing, which caused Respondent much economic discomfi ture Accordingly I find and conclude that each of the four core employees was discharged in violation of Sec tion 8(a)(3) and (1) of the Act, and that such conduct re quires an appropriate remedy THE REMEDY While I have found that all four of the core employees of Respondent were, in fact discharged it is also true that only three of them are alleged in the complaint Further during the course of the trial and in the briefs of the parties allusion was made to the fact that one such core employee Holman chose not to participate in this case Further, counsel for the General Counsel has not requested a remedy with respect to Holman Nevertheless the issue before me is not whether there is independent evidence of illegal motivation in the lay offs or discharges of each separate employee Instead the sole issue is whether evidence exists to support a finding that the group as a whole rather than individual ly were the victims of discriminatory motivation The ,,vidence satisfies the latter test Thus in my opinion the evidence requires a finding that all the layoffs were dis criminatorily and unlawfully motivated It may possibly be that Holman will decline to partici pate in any remedy ordered by me or the Board Cer tainly there is nothing to prevent him from doing so Nevertheless, in circumstances where an issue related to the subject matter of the complaint is fully litigated with out objection I regard myself as expected by the Board to pass on it, even though it was not alleged in the com plaint See generally Granada Mills 143 NLRB 957, 958 fn 1 (1963) Monroe Feed Store, 112 NLRB 1336 (1955) Jones Plastic & Engineering Corp, 186 NLRB 947 fn 3 (1970) Murcel Mfg Corp 231 NLRB 623 fn 5 (1977) Gatliff Business Products, 276 NLRB 543 fn 2 (1985) Having found that William Al Fulwiler, George Terry McDougall, Raymond Wirtz and Ron Holman were unlawfully discharged, it shall be ordered that they be offered immediate reinstatement to their former post tons displacing, if necessary any replacement or, if not available to a substantially equivalent position without loss of seniority or other privileges It shall be further or derd that the employees be made whole for lost earn rags resulting from the discrimination against them by paying to each of them a sum of money equal to that each would have earned from the date of discharge to the date of a bona fide offer of reinstatement less interim earnings during that period Backpay shall be computed in the manner prescribed by F W Woolworth Co 90 NLRB 289 (1950) with interest to be computed in the manner prescribed in New Horizons for the Retarded 32 It shall be further ordered that the Respondent expunge from its records any references to the discharges men toned above and that it provide to each employee named above written notice of such expunction, and inform each such employee that the Respondents unlaw ful conduct will not be used as a basis for further person nel actions against him 33 CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act 2 The Union is a labor organization within the mean mg of Section 2(5) of the Act 3 Respondent violated Section 8(a)(3) and (1) of the Act by discharging employees William Al Fulwiler, George Terry McDougall, Raymond Wirtz, and Ron Holman on or about April 10 1987, because they had en gaged in union activities protected by the Act 4 The above unfair labor practices have an effect on commerce as defined in the Act On these findings of fact34 and conclusions of law and on the entire record I issue the following recommend ed35 ORDER The Respondent Denholme & Mohr Inc Seattle Washington, its officers, agents successors and assigns shall I Cease and desist from (a) Laying off discharging, or otherwise discriminat ing against employees with respect to their employment in order to discourage their membership in or support for the Union 32 In accordance with the decision in New Horizons for the Retarded 283 NLRB 1173 (1987) interest on and after January 1 1987 shall be computed at the short term Federal rate for the underpayment of taxes as set out in 1987 amendment to the 26 U S C § 6621 33 See Sterling Sugars 261 NLRB 472 (1982) 34 Both counsel for the Respondent and counsel for the General Coun set have filed written motions to correct the transcript in certain respects Having examined the respective motions and the transcript of this pro ceeding I find that each motion should be granted In doing so howev er I do not wish to leave the impression that the transcript of these pro ceedings is accurate in all other respects To the contrary it is replete with other inaccuracies However despite these numerous errors I deem it adequate to form the basis for a decision of this case because its mean ing may be correctly surmised by reading such errors in total context 35 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 DENHOLME & MOHR INC (b) 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) Consistent with the terms and provisions of the remedy section of this decision, offer to William Al Fulwiler George Terry McDougall Raymond Wirtz and Ron Holman immediate, full and unconditional rein statement to their jobs in its Seattle, Washington facility or if those jobs no longer exist to a substantially equiva lent position in its Seattle, Washington facility without prejudice to their seniority or any other rights or privi leges previously enjoyed, and make them whole for any loss of earnings or other benefits that they suffered as a result of the discrimination practiced against them and remove from its files any references to unlawful layoffs and discharges of each of them and notify each of them, in writing, that it has done so, and that it will not use those like or related unlawful actions against them in anyway (b) 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 (c) Post at its facility in Seattle Washington copies of the attached notice marked Appendix 36 Copies of the notice, on forms provided by the Regional Director for Region 19 after being signed by the Respondents 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 (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply 36 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 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 69 After a trial at which all parties had a chance to intro duce evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act in April 1987 when we laid off, or discharged, employees Williams A] Fulwiler, George Terry McDougall, Raymond Wirtz and Ron Holman all because they had participated in a strike and picketing activity against us by the Union Painters Local 300 In order to remedy these violations the Board has ordered us to post this notice and to live up to the promises we make in it 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 protect ed concerted activities WE WILL NOT lay off, discharge or otherwise dis criminate against employees for joining, supporting, or assisting Painters Local 300, or any other labor organiza tion WE WILL NOT in any like or related manner interfere with restrain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act WE WILL Offer William Al Fulwiler George Terry McDougall Raymond Wirtz and Ron Holman immediate and full reinstatement to their former jobs at our Seattle Washington facility without any prejudice to their seniority or other rights and privileges previously enjoyed and WE WILL make them whole with interest for any loss of earnings or other benefits that they suf fered because we discharged them on April 10 1987 WE WILL remove from our files any references to the unlawful actions, layoffs or discharges we took against these employees and WE WILL notify them in writing that we have done so and that our actions will not in any way be used against them in the future DENHOLME & MOHR INC