Elion Concrete, Inc.

ELION CONCRETE Elion Concrete, Inc. and Muhammad Ibn Hoballah, an Individual Carpenters District Council Balti- more and Vicinity, a/w United Brotherhood of Carpenters and Joiners of America. Cases 5- CA-17977 and 5-CA-18313 July 13, 1990 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On December 11, 1987, the National Labor Rela- tions Board issued a Decision and Order in this proceeding' in which it found that the Respondent violated Section 8(a)(4) and (1) of the Act by refus- mg to rehire an employee because he filed a charge with the Board and threatened to file another charge if he was not rehired The Board also found that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging employees Robert Compel, Richard Berglmg, and Walter Broil for their union activities Further, the Board found that the Respondent violated Section 8(a)(1) of the Act by threatening employees for engaging in union ac- tivities On pennon for enforcement of the Board's Order, the United States Court of Appeals for the Fourth Circuit demed enforcement and remanded the case to the Board solely for consideration of whether Broll's discharge violated Section 8(a)(3) and (1) of the Act independent of the evidence of Berglmg's and Compel's discharges The Board thereafter accepted the court's remand and notified the parties that they could file statements of position The Respondent has filed a statement of position The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel Upon reconsideration of the record m light of the court's opinion, which the Board accepts as the law of the case, the Board makes the following findings The relevant facts are as follows Walter Broil, a veteran union member, applied at the request of the Union for a job with the Respondent, a concrete contractor After being hired, Broil spent his lunchbrealcs passing out union cards in the parking lot across from the construction site, where most employees ate lunch Broil testified that he thought his union activities had been undetected by the Re- spondent On August 27, 1986, while working on a project with another carpenter, Broll made a small joke with an electrician who had momentarily 287 NLRB 69 (1987) 2 No 88-2196 (4th CV Aug 16, 1989) (unpublished) stopped as he was passing by Shortly thereafter, Foreman Rummell approached Broll and asked him if he had finished cutting the panels Broil said he had not Broil then asked Rummell why Ber- glmg had been fired the previous day Rummell re- plied, "That is it I am tired of all this union bull- shit This is a nonunion job and we are not interest- ed in a union Dave [Supervisor David Hamm] and I watched you for 20 minutes this morning talking to an electrician" Broil denied talking to the elec- trician for that long Rummell then told Broil, "You are fired This is it Get out of here" Broil testified that he had never received a pnor warning about talking to anyone on the job The judge dis- credited the • testimony of Rummell and Hamm, both of whom testified that Broil had spent 20 min- utes talking with anybody who walked by while not doing his work 3 In its prior decision m this case, the Board adopted the judge's finding that the Respondent violated Section 8(a)(3) and (1) by discharging Broil for his union activities The judge based this finding on the following (a) Broil's credited testimony; • (b) The fact that Hamm and Rummell knew generally that there was union activity in the parking lot, (c) An inference that, because this was a small community of employees, Hamm and Rummell likely knew of Broil's union activi- ties, (d) An inference, from the false testimony of Hamm and Rummell, that Broil's union activi- ty was the motive for his discharge, and (e) A finding that this was the third dis- charge of a union supporter in 7 days The Fourth Circuit held, inter aim that Com- pel's and Berglmg's discharges did not violate Sec- tion 8(a)(3) and (1) Because the Board had relied in part on the pattern of discharges to support its conclusion that Broil's discharge was unlawfully motivated (see (e) above), the court remanded the case to the Board solely to consider whether Broil's discharge was unlawful "independent of the evidence of Berglmg's and Compel's discharges" No 88-2196, slip op at 13 4 'The judge noted that Rummell originally testified that he alone made the decision to discharge Broll Hamm then testified that he had told Rummell to discharge Broil Rummell was subsequently recalled as a wit- ness and testified that Hamm told him to discharge Broil 4 The court stated, inter aha, as follows The AU also rehed on the pattern of discharges to support his con- clusion that Broil's discharge was an unfair labor practice Since we have concluded that the evidence cannot support the AL's findings that the discharges of Berghng and Compel constituted unfair labor practices, we must remand this case for the NLRB to consider whether Broll's discharge violated section 138(aX3) independent of the evidence of Berghng's and Compel's discharges 299 NLRB No 1 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In its statement of position, the Respondent argues that it had no knowledge of Broil's union activities Further, the Respondent argues that the court's remand precludes consideration of the August 27, 1986 conversation between Broil and Rummell because that conversation had as its pred- icate the illegal termination of Berglmg We do not agree that the court's remand pre- cludes consideration of the August 27, 1986 con- versation We interpret the court's remand as re- quinng the Board to reconsider the legality of Broil's discharge independent of the finding ((e) above) that it was preceded by two other unlawful discharges We do not believe the court intended to foreclose the Board from relying on credited testimony Further, even if the court's remand were to be construed literally as limiting the Board to consideration of evidence independent of the other two discharges, with the exception of one question by Broil, the August 27, 1986 conversa- tion dealt with Broil's activities, not Berglmg's Rummell's statements during the August 27, 1986 conversation indicate that he had union animus, that he had knowledge of Broil's union activities, and that these were the reasons for Broil's dis- charge Thus, we conclude that the General Coun- sel established a prima facie case that Broil was dis- charged for his union activities and that the Re- spondent, by offering only testimony which was discredited by the judge, did not show that Broil would have been discharged even in the absence of his union activities Wright Line, 251 NLRB 1083 (1980), enfd 622 F 2d 899 (1st Cir 1981), cert denied 455 U S 989 (1982), approved in NLRB v Transportation Management Corp, 462 U S 393 (1983) Accordingly, we find that Broil's discharge violated Section 8(a)(3) and (1) Moreover, even if the court's remand does pre- clude consideration of the August 27, 1986 Broll- Rummell conversation, we would still find Broll's discharge to be unlawful Where the employer's stated motive for a discharge is false, it can be in- ferred that the actual motive the employer desires to conceal is an unlawful one, especially when the surrounding facts tend to reinforce that mference Shattuck Denn Mining Corp v NLRB, 362 F 2d 466, 470 (9th Qr 1966) Here, the evidence estab- lishes that Broil was a prominent union activist who daily engaged in union activities in the park- ing lot The evidence also establishes that Hamm and Rummell knew generally of the union activity in the parking lot The court noted that while the evidence on the whole does not support findings of unfair labor practices with respect to the other alle- gations, there "is abundant evidence to support the conclusion that Ehon management harbors anti- union animus" No 88-2196 slip op at 11 As pre- viously noted, the Respondent offered no reasons for Broil's discharge other than the false testimony of Rummell and Hamm Therefore, we find it rea- sonable to infer that Broil's discharge was motivat- ed by a desire to discourage union activity Shat- tuck Denn Mining Corp, supra Accordingly, even accepting the Respondent's construction of the court's remand, we conclude that the record still supports a finding that it violated Section 8(a)(3) and (1) when it discharged Broll CONCLUSIONS OF LAW 1 Ehon Concrete, Inc is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 Carpenters District Council, Baltimore and Vi- cinity, afw United Brotherhood of Carpenters and Joiners of America is a labor organization within the meaning of Section 2(5) of the Act 3 By discharging Walter Broil on August 27, 1986, the Respondent violated Section 8(a)(3) and (1) of the Act 4 The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act REMEDY Having found that the Respondent has violated Section 8(a)(3) and (1) of the Act, we shall order it to cease and desist and to take certain affirmative action necessary to effectuate the policies of the Act The Respondent having discriminatorily dis- charged employee Walter Broll, it will be required to offer him reinstatement to his former job or, if that job no longer exists, to a substantially equiva- lent position, without prejudice to his seniority or any other nghts or privileges previously enjoyed We shall order the Respondent to make Broil whole for any loss of earnings and other benefits he may have suffered from the date of discharge to the date of the Respondent's offer of reinstatement, in the manner prescnbed in F W Woolworth Co, 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987) We leave to compliance any issues concern- ing the duration of the remedy, including whether Broil would have been transferred or reassigned to other jobsites See generally Dean General Contrac- tors, 285 NLRB 573 (1987) We shall also order the Respondent to remove from its records any refer- ence to Broll's discharge and to notify him in writ- ing that this has been done and that the discharge will not be used against him m any way ELION CONCRETE 3 ORDER The National Labor Relations Board orders that the Respondent, Ehon Concrete, Inc , Baltimore, Maryland, its officers, agents, successors, and as- signs, shall 1 Cease and desist from (a) Discharging or otherwise discriminating against employees because of any activities on behalf of Carpenters District Council, Baltimore and Vicinity, a/w United Brotherhood of Carpen- ters and Joiners of America, or any other labor or- ganization (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action neces- sary to effectuate the policies of the Act (a) Offer Walter Broll immediate and full rein- statement to his former job or, if that job no longer exists, to a substantially equivalent position, with- out prejudice to his seniority or any other rights or privileges previously enjoyed, and make him whole for any loss of earnings and other benefits suffered as a result of the discrimination against him, in the manner set forth in the remedy section of the deci- sion (b) Remove from its files any reference to the discharge of Walter Broil in August 1986, and notify him in writing that this has been done and that the discharge will not be used against him in any way (c) Preserve and, on request, make available to the Board or its agents for examination and copy- mg, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order (d) Post at its place of business and current con- struction projects copies of the attached notice marked "Appendix " 5 Copies of the notice, on forms provided by the Regional Director for Region 5, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and main- tained for 60 consecutive days in conspicuous places including all places where notices to em- '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" ployees are customarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we 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 discharge or otherwise discrimi- nate against any employees because of their activi- ties on behalf of Carpenters District Council, Balti- more and Vicinity, a/w United Brotherhood of Carpenters and Joiners of Amenca, or any other labor organization WE WILL NOT in any like or related manner mterfere with, restrain, or coerce you m the exer- cise of the rights guaranteed you by Section 7 of the Act WE WILL offer Walter Broil immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed and WE WILL make him whole for any loss of earn- ings and other benefits resulting from his discharge, less any net interim earnings, plus interest WE WILL remove from our files any reference to the discharge of Walter Broll in August 1986, and notify him in wntmg that this has been done and that the discharge will not be used against him in any way ELION CONCRETE, INC