National Fabricators, Inc.

NATIONAL FABRICATORS 1095 National Fabricators, Inc. and United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, Local 198. Case 15- CA-10433 July 31, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On November 23, 1988, Administrative Law Judge J. Pargen Robertson issued the attached de- cision. The Respondent filed exceptions and a sup- porting brief and a request for oral argument.' The General Counsel filed an answering brief. 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, and conclusions for the reasons stated below2 and to adopt the recommended Order.3 The Respondent argues that it acted lawfully when it selected seven employees for a temporary economic layoff on the ground that they were likely to honor a union picket line that might be set up at the Respondent's establishment in the near future. It in effect claims that it may take this action in anticipation of what it could essentially otherwise do under the principles of NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938), and of those cases upholding an employer's right to lock out employees. NLRB v. Brown Food Store, 380 U.S. 278 (1965); NLRB v. Teamsters Local 449, 353 U.S. 87 (1957); Operating Engineers Local 825 v. NLRB, 829 F.2d 458 (3d Cir. 1987); Inter-Collegiate Press v. NLRB, 486 F.2d 837 (8th Cir. 1973). We find no merit in this argument. As a preliminary matter, we think it clear beyond peradventure that the criterion used by the Respondent to select employees for layoff-disfa- voring employees who were likely to engage in protected union activities-is the kind of coercive discrimination that naturally tends to discourage unionization and other concerted activity . See Gat- liff Business Products, 276 NLRB 543, 558 (1985). ("[M]ass discharges or layoffs of union adherents are particularly destructive of rights of employes ' The Respondent's request for oral argument is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties. 8 Member Cracraft affirms the findings and conclusions of the adminis- trative law judge for the reasons stated in his decision 8 The judge failed to include an expunction clause in the notice. Ac- cordingly, we shall provide a new notice. [sic] guaranteed to them in Section 7 of the Act, not only because they serve to separate the propo- nents of unionization from contact wit [sic] their coworkers, but also because they clearly demon- strate to those who remain that the employer can and will control who works for it based on antiun- ion considerations.") The alleged discriminatees in the present case, in order to save their jobs, were left with little apparent choice but to agree in ad- vance to resist the Union's probable appeal to engage in the concerted activity at issue; indeed, resigning from union membership might even be perceived as the price for avoiding the advance layoff, because resignation would protect them from the disciplinary measures that a union may take against members who decline to honor a lawful picket line. Such direct coercion of employ- ees to abandon contemplated support for union ac- tivity would surely pose a lingering hindrance to future organizational activity. The Respondent nevertheless asserts, in some- thing of an a fortiori argument, that it may draw on the business reasons sustained in Mackay and in the lockout cases to overcome this unlawful dis- crimination and coercion . See Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 703 (1983) (finding that an employer's conduct is inherently destructive does not end the inquiry, but requires the Board to then "strike the proper balance between the assert- ed business justifications and the invasion of em- ployee rights"). We do not believe that the business justifications upheld in these cases can be so easily transposed to the instant case. Under Mackay, an employer may hire temporary or permanent replacements for employees who have actually vacated their jobs temporarily by going on strike . An employer is afforded this right "[b]ecause the employer's interest [in protecting and continuing its business] must be deemed to out- weigh the damage to concerted activities caused by permanently replacing strikers ." NLRB v. Erie Re- sistor Corp., 373 U.S. 221, 232 ( 1963). Similarly, in Brown Food Store and the other cited decisions, the courts have found that in the particular facts of those cases the employers' business reasons for locking out all of their employees (not just those most likely to support the union) and carrying on operations with temporary replacements out- weighed any interference with concerted employee activity or discouragement of union membership. In Brown, for example, the Court stressed that the lockout and hiring of temporary replacements, al- though having a remote tendency to discourage union membership, still were reasonably adapted to the effectuation of a legitimate business end-de- fending the integrity of the multiemployer bargain- 295 NLRB No. 126 1096 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ing association in the face of a whipsaw strike. 380 U.S. at 288. In contrast, the Respondent here offers no com- pelling reason why it had to implement its econom- ic layoff by selecting those employees who it feared would honor a possible picket line . Unlike the employers in the lockout cases, the Respondent was not responding to a bargaining impasse, nor at- tempting to protect an employer bargaining asso- ciation. Moreover, there is no indication that the continued operation of its business necessitated that it utilize a discriminatory criterion for laying off employees. For had the Union erected the picket line, and the discirminatees honored that line, the employer remained free to hire replacements or call back to work those who had been laid off under a neutral standard. The judge found that the Respondent's own witness candidly stated the real reason for its discriminatory conduct: "[I]f you're going to string out for two or three weeks and carry these people on your payroll and invest money in them, if they're going to quit anyhow a week later, why in the hell are going to put money into them, lay them off." As a business justification, this was neither legitimate nor substantial.4 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, National Fabricators, Inc., Baton Rouge, Louisiana, its offi- cers, agents, successors, and assigns, shall take the action set forth in the Order , except that the at- tached notice is substituted for that of the adminis- trative law judge. 4 Cf. Laclede Gas Co., 187 NLRB 243 (1970). (As contract termination date approached, employer lawfully "locked out" certain of its employ- ees although retaining others on the payroll to do work which readied the company for an impending work stoppage; employer did not select employees on the basis of union membership or activity.) 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. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT lay off our employees because we fear our employees may honor a union picket line. 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 Morris G. Levine Jr., Jeffery L. Ashford, Dempsey J. Carlene, Bobby W. Sevario, Michael K. Sevario, Carl W. Henderson, and Thomas E. Temple Jr. for any loss of earnings they suffered by reason of our discrimination against them with interest. WE WILL also notify them that we have removed from our files any ref- erence to their layoffs and that the layoffs will not be used against them in any way. NATIONAL FABRICATORS, INC. Richard C. Auslander, Esq., for the General Counsel. Murphy J. Foster, III, Esq., of Baton Rouge, Louisiana, for the Respondent. Jerry Gardner, Jr., Esq., of New Orleans, Louisiana, for the Charging Party. DECISION STATEMENT OF THE CASE J. PARGEN ROBERTSON, Administrative Law Judge. This case was heard by me in Baton Rouge, Louisiana, on July 13, 1988. The complaint which issued on No- vember 25, 1987, based on a charge which was filed on October 15, 1987, alleges that Respondent violated Sec- tion 8(a)(1) and (3) of the Act." The primary issue here is did Respondent layoff seven employees on October 17, 1987, because of their protect- ed activities. From before December 1986, a number of union mem- bers in the Baton Rouge area were unable to find em- ployment with "union" employers. It became common practice for union members to work for "non-union" em- ployers. One of those nonunion employers was the Re- spondent. Respondent's superintendent, Oscar LaFleur, testified that both he and his foreman during 1987, Reid Jury, are union members. Additionally several of Respondent em- ployees, including all the alleged discriminatees, are union members. ' Respondent in its answer to the complaint admitted all the commerce allegations, that it is an employer engaged in commerce within the mean. ing of Sec. 2(6) and (7) of the Act, and that the Charging Party is and has been at all times material herein, a labor organization within the meaning of Sec. 2(5) of the Act. NATIONAL FABRICATORS 1097 By letter to its members dated December 15, 1986, the Charging Party (Local 198) agreed that members could work for nonunion employers provided the respective members sign an agreement to try and organize the em- ployer. However, on September 15, 1987, the International Union wrote the members that the Local erred in au- thorizing nonunion employment . The International cited a constitutional provision prohibiting members from working for nonunion employers. That September 15 letter created activity in the Baton Rouge area. Discussions at Respondent's facility among employees, and among employees and supervisors , often- times concerned the International 's September 15 letter. There were discussions concerning whether the union employees would honor a union picket line. Since the International threatened action within 30 days it was anticipated that a picket line could be estab- lished on October 15, 1987. In late September or early October the Union targeted several of the nonunion employers and began organizing efforts. One of those targeted employers was Respond- ent. Local Representative Bobby Bennett contacted some of Respondent's union employees. Even though they were union members, all seven of the alleged discrimina- tees signed union authorization cards between September 28 and October 2, 1987. Superintendent Oscar LaFleur admitted hearing that employees were signing union cards . However, LaFleur denied knowing that any of the alleged discriminatees had signed cards . LaFleur admitted knowing that all the alleged discriminatees were union members. LaFleur testified that the seven alleged discriminatees were not selected for layoff on October 7, 1987, because they signed union authorization cards . In that regard, LaFleur testified that he did not tell any employee that he selected the seven because they signed union cards. However, LaFleur admitted that he laid off the seven because of his fear they may honor a union picket line. For example, LaFleur testified as follows: You know, to me . . . let me back this up and rephrase that thing . I think that what really hap- pened is that we was told these boys was going to quit and it helped prompt the layoff because if you're going to string out for two or three weeks and carry these people on your payroll and invest money in them, if they're going to quit anyhow a week later, why in the hell are you going to put money into them , lay them off. LaFleur illustrated through his entire testimony that he was referring to the likelihood that the alleged discri- minatees would refuse to cross a union picket line when he testified that they were going to quit. However, it is not disputed that LaFleur discussed what the employees would do if the Union picketed their job. The evidence shows that LaFleur was either told or could have understood that each of the alleged discri- minatees may honor a union picket line. LaFleur admitted that he was upset by the Internation- al Union's September 15, 1987 letter. The evidence in dispute concerns the question of Re- spondent's alleged knowledge that the seven alleged dis- criminatees signed union authorization cards. Alleged discriminatees Carl Henderson and Thomas Temple testified that after the layoff on October 7, La- Fleur told them they were laid off because they signed union cards. LaFleur admitted having a conversation with Hender- son and Temple in the presence of employees Claude Craner and David Lohr. LaFleur denied saying the layoff was because the employees signed union cards. According to LaFleur, he was asked if the layoff was be- cause of cards, but he replied that he didn't know who signed the cards and didn't care. LaFleur was corrobo- rated by the testimony of employees Craner and Lohr. Both Craner and Lohr are members of the Union. Henderson testified that in subsequent conversations 2 days and 2 weeks after the layoff, LaFleur indicated to him that he could return to work if he rescinded his union card. Discussion Henderson and Temple admitted that employees Craner and Lohr were in the vicinity of the October 7 conversation with LaFleur, but both disputed whether David Lohr overheard the conversation. In view of the entire record , I am unable to credit that Oscar LaFleur threatened that employees were laid off because they signed union cards, or that he promised to rehire David Henderson if Henderson rescinded his card. The October 7 conversation was a heated conversa- tion. Respondent had announced the layoffs that day and Oscar LaFleur admittedly was angry because of the In- ternational's September 15 letter . It is apparent that all five participants in that conversation may have difficulty recalling who said what. However, the two employees that had no reason to be angry supported the testimony of Oscar LaFleur. Moreover, those two-Craner and Lohr-were also union members. Additionally, the overall record illustrates that Oscar LaFleur, a long-term union member, was not concerned with the alleged discriminatees' union membership. Indeed, LaFleur knew of each of the alleged discrimina- tees' union affiliation from before their employment by Respondent. Conclusion Conclusions The evidence is in sharp dispute as to whether Re- spondent told employees that the October 7 layoff was called when Oscar LaFleur learned that the seven al- leged discriminatees had signed union authorizations cards. A. The 8(a)(1) Statements In view of my credibility findings, I cannot credit the evidence regarding the alleged 8(a)(1) statements. I find that Respondent did not violate Section 8(a)(1) by telling employees that they had been laid off because employees had signed union cards or by telling an employee he 1098 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD would be reinstated if he returned his union card to the Union. B. The Layoff In view of my findings above I find that Respondent did not lay off employees on October 7 because its em- ployees signed union authorization cards. However, due to the admission of Respondent's super- intendent, Oscar LaFleur, I find that the employees were laid off because Respondent feared they would honor a picket line. "It is well established that nonstriking employees who refuse to cross a picket line their fellow employees main- tain, make common cause with the strikers , and may not be lawfully discharged for their activities." Dave Castel- lino & Sons, 277 NLRB 453, 454 (1985). See also Ashta- bula Forge, 269 NLRB 774 (1984); Browning-Ferris Indus- tries, 259 NLRB 60 (1981), enfd. 700 F.2d 38S (7th Cir. 1983); Inland Steel Co., 264 NLRB 84 (1982). Picket activity and assertions by employees that they may honor a picket line constitutes protected activity. Therefore, discharge for that activity violates Section 8(a)(1). In the instant case, it is clear that the threatened picketing also constitutes union activity. Therefore, Re- spondent's actions in discharging the seven alleged dis- criminatees also violates Section 8(a)(3) of the Act. CONCLUSIONS OF LAW 1. National Fabricators, Inc. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, Local 198 is a labor orga- nization within the meaning of Section 2(5) of the Act. 3. By laying off employees Jeffery L. Ashford, Demp- sey J. Carlene, Carl W. Henderson, Morris G. Levine Jr., Bobby W. Sevario, Michael K. Sevario, and Thomas E. Temple Jr., because Respondent feared they may honor a union picket line, Respondent violated Section 8(a)(1) and (3) of the Act. 4. Respondent did not otherwise engage in conduct violative of Section 8(a)(1) of the Act. activities.2 Backpay shall be computed in the manner prescribed in F W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retard- ed, 283 NLRB 1173 (1987).3 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed4 ORDER The Respondent, National Fabricators, Inc., Baton Rouge, Louisiana, it officers, agents, successors, and as- signes, shall 1. Cease and desist from (a) Laying off its employees because of its fear that those employees may honor a union picket line. (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which is deemed to be necessary to effectuate the policies of the Act. (a) Make whole employees Jeffery L. Ashford, Demp- sey J. Carlene, Morris G. Levine Jr., Bobby W. Sevario, Michael K. Sevario, Carl W. Henderson, and Thomas E. Temple Jr., for losses suffered as a result the discrimina- tion against them in the manner set forth in the remedy section of this decision. (b) Expunge From the personnel files of employees Jeffery L. Ashford, Dempsey J. Carlene, Morris G. Levine Jr., Bobby W. Sevario, Michael K. Sevario, Carl W. Henderson, and Thomas E. Temple Jr., any reference to its illegal actions against them , and notify Ashford, Levine, Carlene, Bobby Sevario, Michael Sevario, Hen- derson, and Temple, in writing that this has been done and that evidence of its unlawful actions will not be used as a basis for future personnel action against them. (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 Baton Rouge, Louisiana facility copies of the attached notice marked "Appendix."s Copies of THE REMEDY Having found that Respondent hag engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, I shall order it to cease and desist therefrom, and to take certain affirmative action designed to effectu- ate the policies of the Act. Having found that Respond- ent has illegally laid off employees, Jeffery L. Ashford, Dempsey J. Carlene, Carl W. Henderson, Morris G. Levine Jr., Bobby W. Sevario, Michael K. Sevario, and Thomas E. Temple Jr., I recommend that Respondent be ordered to make Ashford, Carlene, Henderson, Levine, B. Sevario, M. Sevario, and Temple whole for loss of earnings each suffered because of Respondent 's illegal 2 Record evidence indicated that Respondent had rehired all the al- leged discnminatees before the hearing in this matter . For that reason I have not recommended a reinstatement order. 8 Under New Horizons, interest is computed at the "short-term" Federal rate for the underpayment of taxes as set out in the 1987 amendment to 26 U S.C. § 6621 . Interest accrued before January 1987 (the effective date of the amendment) shall be computed as in Florida Steel Corp., 231 NLRB 651 (1977). 4 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-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 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." NATIONAL FABRICATORS 1099 the notice, on forms provided by the Regional Director, for Region 15, after being signed by the Respondent's authorized representative, shall be posted by Respondent immediately upon receipt and maintained for 60 consecu- tive 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.