NOTICE: This opinion is subject to formal revision
before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive
Secretary, National Labor Relations Board,
T. Steele
Construction, Inc. and International
November 30, 2006
DECISION AND ORDER
By
Chairman Battista and Members Liebman
and Walsh
On
June
5, 2006, Administrative
Law Judge Paul Bogas issued the attached decision. The Respondent
filed exceptions and a supporting brief, the
General Counsel filed an answering brief and a brief in support of the judge’s
decision, the
The
National Labor Relations Board has delegated its authority in this proceeding
to a three-member panel.
The
Board has considered the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings,
findings,[2] and conclusions[3] 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, T. Steele Construction,
Inc.,
Dated,
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Robert
J. Battista, |
Chaiman |
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Wilma
B. Liebman, |
Member |
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Dennis
P. Walsh, |
Member |
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(Seal) National Labor
Relations Board
Deborah Fisher, Esq., and Melissa Tomaska, Esq., for the General Counsel.
John F. Doak, Esq. (Katz, Huntoon &
Fieweger, P.C.), of
Robert E. Entin, Esq., of Countryside,
DECISION
Statement of the Case
Paul
Bogas, Administrative Law Judge. This case was tried in
On
the entire record, including my observation of the demeanor of the witnesses,
and after considering the briefs filed by the parties, I make the following
Findings of Fact
i. jurisdiction
The
Respondent, a corporation, with an office and place of business in
ii. alleged unfair labor practices
A. Background Facts
The
Respondent is a construction company that performs two basic types of work. One
is building the sites and foundations for cellular phone towers and the other
is building houses. During the relevant time period the Respondent had approximately
33 employees. Most of the workers were distributed among five or six phone
tower crews, and one- or two-house building crews. The drill crews that performed
tower work and the crews that built houses each generally had three or four
members, including a foreman. The Respondent’s president and owner is Thomas
“Tom” Steele (T. Steele). T. Steele’s brother-in-law, John Oliver (Oliver), is
the Respondent’s vice president.
The
Respondent’s phone tower work consists of digging or drilling the tower
foundation, constructing the building foundation with underground lighting and
conduits for utilities, installing electrical wires and meters for the
structure, and building roads to sites that do not have adequate access. The
phone tower work is generally performed out-of-state, and employees on the
Respondent’s tower crews are away from home overnight for a portion of most
weeks. The heavy equipment used to complete the work includes caisson drills,
excavators, skid steer loaders, bobcats, semi trucks, and crew trucks. The
operation of this equipment is generally considered “operator’s” work, and a
commercial driver’s license (CDL) is required to drive the semi trucks and the crew
trucks.
The
Respondent builds houses using a system referred to as “poly-steel.” The
poly-steel system involves stacking styrofoam forms and then filling those
forms with concrete to create the walls of the house. The Respondent adds a
floor deck, a basement, drywall, and shingles to the house. In addition, the Respondent
performs some backfill and grading around the house site. Most of the Respondent’s
house building work is local, and the house crews are generally not required to
be away from home overnight. The equipment used by the house crews includes
excavators, dump trucks, skid steer loaders, crew trucks, concrete saws,
shovels, hammers, and wheelbarrows.
B. Union Organizer Hired By Respondent
The
Respondent’s employees are not represented by a union. The record shows that it
is not uncommon for the Respondent to employ persons who are current or former
union members and that some such employees have worn clothing with union names
or insignias to the Respondent’s jobsites. However, prior to April 2005, none
of those employees had engaged in a campaign to persuade other employees to
organize for union representation. This changed when Joe Farrell (Farrell), an
organizer with the
The
series of events that lead to Farrell’s hiring and the alleged unfair labor
practices began in late March or early April 2005, when the Respondent placed
four help wanted advertisements. In those advertisements, the Respondent stated
that it was seeking: (1) “Operators” with “excavator and skid-steer”
experience; (2) “Drivers/Laborers” with a “Class A CDL [Commercial Driver’s
License]”; (3) “Carpenters,” “CDL a plus”; and, (4) “Concrete
Finishers/Laborers,” “CDL a plus,” “[m]inimal concrete experience.” The Respondent
stated that weekly travel was a requirement for the operator positions, the
driver/laborer positions, and some of the concrete finisher/laborer positions.
Farrell
applied for the operator position, and met the qualifications for that job. In
the resume he sent to the Respondent, Farrell stated that he had experience as
a truckdriver, equipment operator, and mechanic, and that for the last 15 years
he had run his own construction business. He had a CDL and experience operating
excavators and skid steers. Farrell made no mention of his employment as a
union organizer. On Friday, April 15, T. Steele and Oliver interviewed Farrell.
They described the types of work the Company did, and asked Farrell if he was
available for work out-of-town. Farrell answered that working out-of-town would
“not be a problem” for him. Farrell was told to report to work the following
Monday, April 18. T. Steele told Farrell that the Respondent was “flat-out
swamped” and that Farrell would be placed on a drill crew—one of the types of
tower crews—because that crew was lacking experience and needed someone with
supervisory background. Farrell was assigned to replace Dennis Peterson
(Peterson), who was resigning his position in order to begin work as an
operator for a union contractor. The Respondent was unaware that Farrell was a
union organizer at the time it hired him.
At
approximately the same time as the Respondent hired Farrell, it hired three
other individuals who had responded to the help-wanted advertisements. Two of
those individuals had applied for positions as laborers, and one had applied
for a position as a carpenter. Aside from Farrell, no one was hired who had
applied for an operator position. The new employees were not provided with job
descriptions or told that they would be performing exclusively the type of work
described in the advertisements to which they had responded.
On
Monday, April 18, Farrell began work as an operator on one of the Respondent’s
tower crews. The foreman of the crew was Kristian Anderson (Anderson), and the
other crew members were Mike Barnewolt (Barnewolt) and, until April 19,
Peterson. While Farrell was on that crew from April 18 to 21,
On
the second day of his employment, April 19, Farrell began to tell coworkers
that he was a union organizer. First he told Peterson, and later that day he
told Barnewolt. Farrell also gave Barnewolt a copy of the Union’s standard
contract and described the
C. Respondent Reassigns Farrell to House Crew
During
the following weekend, after it discovered that Farrell was a union organizer,
the Respondent told Farrell that he was being reassigned to a house crew under
the supervision of foreman Brian Brink (Brink). As the foreman of the crew,
Brink’s authority included directing employees’ work, issuing some types of
discipline, and helping decide when employees could schedule leave. The record
shows that Brink had a negative view of unions and union organizers and that T.
Steele, who made the decision to reassign Farrell, was aware of those views.
According to Brink’s own testimony, before seeing Farrell work, or even meeting
the new employee, Brink concluded that the Respondent had made a mistake by
hiring Farrell because he was a union organizer. It was Brink’s opinion that
union organizers brought conflict to a workplace, and were not “not there to
work.” When he found out that Farrell was being assigned to his crew, Brink,
who still had not met Farrell, formed “an impression” that Farrell would engage
in divisive tactics and that things might not work out. On April 20, before
Farrell started work on Brink’s crew, Brink told one of his crew members,
The
record shows that T. Steele also formed a negative impression of what to expect
from Farrell once he discovered that Farrell was a union organizer. As of the
time that Farrell’s union role became known, T. Steele admits that Farrell was
doing a fully satisfactory job for the Respondent. Nevertheless, T. Steele
testified that when he found out that Farrell was a union organizer he became
“very nervous” and “frightened for the livelihood of the business.” T. Steele
testified that when he found out about Farrell’s connection to the Union he
“knew” that one of two things would happen—either Farrell “would succeed in
organizing the Company, or two, we were going to be sued.” T. Steele stated
that, in his view, Farrell was subject to discharge as soon as the Respondent
discovered that he was a union organizer, since Farrell had not disclosed this
information when applying and lying on your application is cause for termination.
T. Steele testified that, nevertheless, he chose not to discharge Farrell at that
time and told his foremen to “be cautious,” and “keep their comments to
themselves.”
During
Farrell’s first week of work, T. Steele had a conversation with Brink about
Farrell. Brink told T. Steele, “[P]ut him on my crew, I can run him off.”
Brink’s end of the conversation was overheard by Shawn Fuller (Fuller), a
member of Brink’s crew.1 Fuller was only about three feet
from Brink when this statement was made. After Brink completed the phone conversation,
he told Fuller that he had been speaking to T. Steele and that Farrell was a
union organizer.2 The Monday after T. Steele’s telephone
conversation with Brink, T. Steele transferred Farrell to Brink’s crew.3
Farrell remained on Brink’s crew until T. Steele discharged
him 7 weeks later, on June 10. During the time that Farrell was on Brink’s
crew, he performed laborer’s work almost exclusively. The assignments that
Brink gave to Farrell included working with hammers, shovels, scrappers, and
wheelbarrows, and performing tasks such as tying up rebar, and digging “crumbs”
out of a ditch. There was a substantial amount of operator work performed by
Brink’s crew, but Brink virtually never assigned that work to Farrell.
T. Steele testified that he transferred Farrell from
In addition to claiming that that the “crunch” on
During the period that he was assigned to Brink’s crew, Farrell
continued his union activities. On April 27, he began distributing union
authorization cards to the Respondent’s employees, and he handed out a total of
about 5 such cards during his tenure with the Respondent. From April 27 until
the time of his discharge, Farrell wore clothing with the
D. Statements by Brink During Union Campaign
T.
Steele repeatedly told Brink to keep his opinions to himself, yet Brink made
multiple hostile comments to crew members about Farrell and the union activity
prior to Farrell’s discharge. As stated above, during the first week of
Farrell’s employment, Brink volunteered, in the presence of at least one crew
member, to “run [Farrell] off” the job. He told Hall, and possibly others, that
T. Steele had made a mistake by hiring a union organizer. In mid-May, Brink had
a conversation with Fuller and Hall in which he told them that any employee who
signed a union card “would be fired.” Hall responded that there was no way to
find out who signed a card. Brink stated that “there was ways of finding” out
which employees “did or did not” sign. On another occasion that same month,
Brink told Fuller and Hall that before “T. Steele . . . was to go union,” he
would “sell his drill . . . and just build houses.” Also in mid-May, Brink
asked Fuller whether Farrell had given him “the union speech.” Brink posed this
question to Fuller at a jobsite, but out of the presence of other employees.
Fuller recorded some of Brink’s statements on a notepad when he got home in
order to help himself remember them.
Hall
testified about another incident, on April 27, when he says Brink made hostile
comments regarding union apparel. According to Hall, when Brink saw that he was
wearing union apparel, Brink commented “Why do you not walk in the office and
see how they appreciate [you] wearing those clothes,” and that if Hall wore any
more Union “garb” he “might as well join them.” Hall also testified that Brink
once commented “Nice hat and sweatshirt,” in reference to the Union hat and
sweatshirt that Hall had on. According to Hall, he told Brink, “Yeah it was
free,” and Brink responded “No, it is going to cost you.” Brink was not asked
specifically about these alleged comments, but did make a general testimonial
denial that he did anything to discourage employees from wearing union apparel.
He also denied that he said anything to Hall and Farrell “about reprisals that
may be taken with regard to wearing . . . clothing [with union insignias].”
Based on the record, and my assessment of the credibility of the witnesses,
see, above, footnote 2, I believe it is possible that Brink made the comments
about union clothing that Hall testified to. On the other hand, I found Hall
and Brink to be equally unreliable as witnesses regarding disputed matters. In
the absence of any evidence significantly corroborating either witness
regarding this exchange, I do not believe the General Counsel has shown that
Brink more likely than not made the alleged threats to Hall about union
apparel.
E. Farrell Meets with Tami Kuhlenbeck
Tami
Kuhlenbeck (Kuhlenbeck) has responsibility for the Respondent’s human resources
functions and is also T. Steele’s sister-in-law. On the morning of Friday, June
3, Farrell and Hall met with her. Farrell asked Kuhlenbeck if he could take a
week of unpaid leave in August—approximately 2 months later —to participate in
a church mission. Kuhlenbeck responded that it was an “awful busy time of year”
and she would have to “check into it.” Farrell said that, if necessary, he
could “line up somebody else, to take my place.” Kuhlenbeck responded, “oh, no,
we are not going to hire another union—another union worker,” and that the
Respondent was “a non-union shop.”4 The Respondent has admitted that Kuhlenbeck is an agent of the company.
F. Respondent Discharges Farrell
After
requesting the opportunity to discuss his safety concerns, Farrell had a
meeting with T. Steele, Oliver, and Kuhlenbeck on June 10. Farrell and T.
Steele talked about Farrell’s safety concerns, and Farrell’s contact with OSHA,
and Farrell presented some jobsite photographs showing what he said were safety
problems. T. Steele stated that he appreciated Farrell bringing the concerns to
his attention, and also stated that he did not understand why Farrell did not
discuss them with him before contacting OSHA. Farrell offered T. Steele a copy
of the
Poor
performance was the only reason T. Steele gave on June 10 for discharging
Farrell, but at trial he testified that the decision was also based on Farrell’s
attendance. Kuhlenbeck, the Respondent’s human resources official, stated that
her understanding was that Farrell’s attendance record had nothing to do with
the decision to terminate him, and that he was terminated solely based on his
performance.
1.
Farrell’s performance
The
testimony included general assessments of Farrell’s performance, and also
discussions of four specific instances relied on by the Respondent to justify
Farrell’s discharge. Hall, who worked with Farrell on Brink’s crew, testified
that Farrell was “an excellent worker.” According to Hall, Farrell was “very
knowledgeable” and was “the first on the job and the last one to leave.” Hall
testified that he had never noticed Farrell slowing down his work pace. The
Respondent does not dispute that Farrell’s performance was acceptable during
the first few weeks of his employment. T. Steele characterized Farrell as an
“average” employee during his first week. Shortly after Farrell was
transferred, Brink told T. Steele that Farrell was doing a “nice job.”
Similarly, Brink told Hall that Farrell was a “good worker.” However, according
to T. Steele, Farrell soon began to slow his work pace, disrupt the crew, and
use his cell phone excessively during worktime. T. Steele conceded that he only
observed Farrell’s work during the first week of Farrell’s employment, and
therefore did not personally observe any of the poor performance upon which the
discharge decision was putatively based. Rather, T. Steele testified that he
based his opinion that Farrell’s performance had deteriorated on reports from
Brink and, to a lesser extent, from Joseph Kuhlenbeck (J. Kuhlenbeck), who
observed Farrell at jobsites on two or three occasions. J. Kuhlenbeck, in
addition to being a supervisor for the Respondent, is T. Steele’s nephew.
Brink
testified that there was a negative change in Farrell’s work pace, but he was
unable to describe or quantify that change in pace other than to say it was
“very apparent” “to everyone.”6 Brink did, however, discuss two specific
instances of problems. In one instance, Farrell spoke to a union representative
named Marshall Douglas while at a jobsite and during work time. Brink told
Farrell he should concentrate on the work and that “if he needed to speak with
Mr. Douglas, he could do that on his own time.” Brink testified that after he
discussed the matter with Farrell, he never saw Farrell engage in the conduct
again. In the second instance, Brink noticed Farrell talking on his cell phone
during worktime. Brink testified that he informed Farrell that “personal calls
were to happen, you know, on your lunch break or on a break.” Brink testified
that after this conversation, there was never a problem with Farrell using his
cell phone during worktime again.
J.
Kuhlenbeck testified about an occasion when the truck he was operating became
disabled at a jobsite where Farrell and Hall were present. J. Kuhlenbeck stated
that Hall and himself worked under the truck for about 25 or 30 minutes and completed
the repair. According to J. Kuhlenbeck’s testimony on direct examination,
Farrell was “just kind of standing there watching us, not really lending a
hand.” J. Kuhlenbeck did not ask Farrell to help, but stated that his
expectation in such circumstances was that an employee would “jump right in and
start helping.” On cross-examination, J. Kuhlenbeck conceded that there was
only room for two employees to work under the truck and that since he and Hall
were already there, Farrell could not participate directly in the repair. J.
Kuhlenbeck also admitted that while he and Hall were working, Farrell was offering
them advice on how to accomplish the repair. J. Kuhlenbeck allowed that from
his vantage point under the truck, he could not be sure that Farrell was not
assisting Brink during some of the period when the repair was being made. J. Kuhlenbeck testified that he did not tell
T. Steele or anyone else at the Respondent about this incident and never recommended
that Farrell be disciplined for it. Based on his demeanor, testimony,
relationship to T. Steele, and the record as a whole, I conclude that J.
Kuhlenbeck did not testify about this episode in an unbiased manner, but rather
tried to slant his account in an effort to assist the Respondent’s case.
The
fourth example of Farrell’s alleged poor performance was testified to by
Lawrence Steele (L. Steele), who is T. Steele’s brother and an employee of the
Respondent. On the occasion in question, the crew was building a house in
Farrell
also testified about the work at the Geneseo site. He stated that while the
concrete was being poured into the walls, he was, checking for leaks, making
sure the braces were tight, and also using the vibrator on the walls. According
to Farrell, at times he was working right beside L. Steele on a scaffold. When
asked what he was doing while the concrete was being pumped, Farrell commented,
somewhat flippantly, that he and Hall were “Trying to keep clear of the hose so
we didn’t get splattered with concrete.” When asked whether he was “standing
around” while the concrete was being poured, Farrell answered “not that I
remember,” rather than definitively denying such behavior. I conclude that
Farrell’s testimony regarding this specific incident is not particularly
reliable given the flippancy and lack of certainty of some of that testimony.
The record
shows that prior to Farrell’s discharge, T. Steele never mentioned to Farrell
that there were shortcomings in the pace or quality of his performance, and
certainly did not discipline Farrell for performance problems. Similarly,
although Brink had authority to issue discipline to the workers on his crew, he
never disciplined Farrell for poor performance or advised him that he was
slowing down the work. Brink frequently told Farrell to work faster, but the
record shows that Brink told everyone on his crew to work faster on occasion.
The Respondent does not assert that Farrell lacks the skills to perform the
necessary tasks or that the work he produced was not of adequate quality.
Although
Farrell was never disciplined for poor performance, his personnel file contains
a record that Tami Kuhlenbeck made of negative comments that T. Steele told her
he received from Brink. According to that record, on May 18: “Tom Steele said
Brian Brink called to complain about Joe Farrell’s work performance. Brian said
he was slowing down.” Kuhlenbeck also recorded that, on May 31: “Brian B[rink]
complained to Tom Steele again about Joe’s performance. He said Joe’s bringing
the pace down of his other workers.” Lastly, Kuhlenbeck recorded that, on June
3, “Brian asked Tom to remove Joe from his crew.”8 Kuhlenbeck testified that this
type of record was not kept for other employees. T. Steele conceded that he frequently
receives complaints from foremen about other employees, but that, unlike with
Farrell, he did not have Kuhlenbeck document those complaints in the employees’
personnel files. In Farrell’s case, T. Steele testified, he had been advised to
“document, document, document” because Farrell was union organizer. T. Steele
stated that the Respondent had gone to lengths in documenting matters relating
to Farrell that it had not with any other employee. Nevertheless, T. Steele
chose not to document positive comments that he received about Farrell’s
performance—for example, Brink’s report that Farrell was doing a “nice job.”
2.
Farrell’s attendance
Although
the record raises significant doubts about T. Steele’s assertion that Farrell’s
attendance was taken into account at the time of the discharge, I considered
the evidence relating to Farrell’s attendance record.9 Farrell was absent on four
occasions over the course of the 8-week period that he worked for the
Respondent. The first time was April 22, the Friday after he was hired. Farrell
asked T. Steele in advance if he could take that day off to attend a union
training program. T. Steele agreed, and testified that there was no work for
Farrell to perform that day. In Farrell’s personnel file, this was recorded as
an “excused absence.” On May 16, Farrell was absent to attend a funeral. He
obtained Brink’s approval for this absence 2 days in advance. The Respondent
did not initially make a record of this excused absence in Farrell’s file, but
Kuhlenbeck added a notation about it much later—some time after June 3–in which
she incorrectly noted the date of the absence as May 15, rather than May 16.
The
next time Farrell was absent from work was May 25, when he attended a
meeting. Approximately 15 minutes before
the end of the workday on May 24, Farrell informed Brink that he needed May 25
off. Brink told Farrell that employees had to give at least 24 hours notice and
that this was “spelled out” in the employee handbook. Brink gave Farrell a
verbal reprimand for this supposed violation of the handbook policy, and the
reprimand was recorded in Farrell’s personnel file. This verbal warning is the
only recorded discipline that the Respondent issued to Farrell prior to
terminating him.10 Contrary to Brink’s statement to
Farrell, the employee handbook contains no mention of a 24-hour notice
requirement for absences. The only notice period set forth in the handbook
states that when an employee will be absent for unforeseen circumstances, the employee
must inform his or her supervisor “at least 60 minutes before normal reporting
time.” It is undisputed that Farrell gave his notice more than 60 minutes
before his normal reporting time. T. Steele did not corroborate Brink’s
statement that there was a 24-hour notice rule, but did state that, regardless
of the language in the employee handbook, he “likes” employees to give their
supervisors notice immediately upon discovering that they will be absent. Brink
did not claim to be aware of T. Steele’s “immediate notice” preference, and the
Respondent does not claim that it was ever communicated to employees. At any
rate, Brink could not have known whether Farrell gave immediate notice since
Brink admitted that he was not sure when Farrell himself found out that he
would have to be absent. At trial, Brink initially claimed that he had
disciplined two other employees (Tom Hall and Steve Stanley) for the same
reason as he did Farrell, but the record shows that those employees, unlike
Farrell, were absent during periods for which they had given no notice at all.
Farrell’s
last absence prior to being terminated was on June 3. On than occasion, Farrell
called Brink’s cell phone more than an hour before normal starting time and
left a message explaining that he was having problems with his back and was
going to visit a doctor for treatment. Brink did not respond to Farrell’s
message. Farrell went to a doctor that day and did not appear for work. The
next workday was Monday, June 6. Farrell returned to the job and Brink almost
immediately confronted him to demand that Farrell produce a doctor’s note
regarding the 1-day absence. Farrell agreed to provide such a note. Later that
same day, Brink asked Farrell for the doctor’s note again, and Farrell inquired
whether he could leave work early in order to visit the doctor’s office to
obtain it. Brink said that Farrell should call the doctor’s office and have them
send the note to the Respondent’s office by facsimile. Farrell called his
doctor’s office during the lunchbreak in an effort to comply, but the doctor
was unavailable and Farrell left a message. Later that day, Brink approached
Farrell a third time to tell him that “we needed to take care of this issue,
that we needed, you know, something from the doctor stating that he was okay to
work.” Although Brink approached Farrell three times in one day to demand a
doctor’s note, Brink conceded that he had never before demanded such a note
unless the employee had filed a worker’s compensation claim.
That
same day, Farrell and Hall went to speak to Kuhlenbeck.11 Kuhlenbeck asked Farrell whether
he had obtained a doctor’s note so that the 1-day absence would not be unexcused.
When Farrell answered “no,” she suggested that he “have it faxed in.” Farrell
explained that he had tried to do that without success. He said that he could
obtain a note from the doctor at his next appointment, but also stated that he
would have to check with his attorney about providing the note to the
Respondent. Kuhlenbeck told Farrell that it would be acceptable if he obtained
the note during his next visit to the doctor and provided it to the Respondent
at that time. The Respondent’s employee handbook states that a doctor’s note
may be required for medical absences of 2 or more days, and does not state that
such a note may be required to excuse a medical absence of only 1 day. In other
instances, the Respondent did not require employees to supply doctor’s notes
even after they had been absent for medical reasons for significantly longer
periods of time than Farrell. The Respondent does not offer any nondiscriminatory
explanation for why it deviated from its policy and practice when it came to
Farrell’s 1-day absence for medical reasons.
Evidence
was presented about the attendance of other employees—including a number who were
retained despite having attendance records that were equivalent to, or worse
than, Farrell’s. Daniel A.12 was eventually terminated for poor
attendance, but was permitted to continue working after he was absent six
times, including one “no show,” during his first 7 weeks of employment with the
Respondent. Jeff B. was allowed to continue working even after he was out sick
on five separate occasions, and took an additional week off, all during his
first 3 months of employment. He called in sick for a total of eleven days over
his 7 months of employment before the Respondent terminated him. Jim S. was
allowed to continue working even though he was absent three times during his
first 2 weeks of employment with the Respondent, including twice to care for
his pet snake. The Respondent retained Jim S. even after he was absent two more
times the following month, and did not terminate him until he insisted on
additional time off that the Respondent had explicitly refused to authorize.
Adam R. was retained even after he was absent five times during his first month
of employment. Three of those absences were “no shows,” and on the two other
occasions he called in sick. He was terminated only after he had additional
absences during the subsequent weeks. Troy F., an employee with less than 1
year of service, was retained even though, over the course of 7 months, he was
absent for all or part of 15 days, in addition to taking a 2-day vacation. This
employee was eventually terminated, but only after the Respondent issued him a
written disciplinary warning and discovered that he had forged a doctor’s
excuse. Julio B. continues to work for the Respondent even though, during his
first 5 months of employment, he was absent for 2 weeks while incarcerated,
absent 3 days for court appearances, and absent for medical reasons on two
additional days. There was also general testimony from Kuhlenbeck about other
individuals who were terminated for what she described as attendance or
performance problems, but the record contains no further detail about the
problems or circumstances that led to termination in those cases.13
G. The Complaint Allegations
The
complaint alleges that the Respondent violated Section 8(a)(1) of the Act: on
about April 20, 2005, when Brink threatened to discharge Joe Farrell because
Farrell was a union organizer; on about April 27, 2005, when Brink threatened
an employee with unspecified reprisals for wearing clothing with union
insignias; on about May 16, 2005, when Brink threatened that employees would be
discharged if they signed union authorization cards; on about May 16, 2005,
when Brink created the impression that the Respondent was surveilling
employees’ union activities; on about May 16, 2005, when Brink threatened that
the Respondent would sell part of its business if employees selected the Union
to represent them; in mid-May 2005, when Brink interrogated an employee about
his union activities and sympathies and those of other employees; and, on June
6, 2005, when Kuhlenbeck threatened employees that the Respondent would not
hire another union employee in order to ensure that the Respondent remained
nonunion. The complaint further alleges that the Respondent violated Section
8(a)(3) and (1) by transferring Farrell on about April 25, 2005, and
discharging him on about June 10, 2005, because he assisted the Union and
engaged in concerted activities and to discourage employees from engaging in
those activities.
iii. analysis and discussion
A. Alleged Violations of Section 8(a)(1)
1. Threats
The
General Counsel alleges a total of five unlawful threats—four by Brink, and one
by Kuhlenbeck. At all relevant times,
Brink and Kuhlenbeck were both agents of the Respondent, and Brink was also a
supervisor for purposes of Section 2(11) of the Act. The test to determine if a
statement violates Section 8(a)(1) is whether “under all the circumstances” the
remark “reasonably tends to restrain, coerce, or interfere with the employee’s
rights guaranteed under the Act.” GM Electrics, 323 NLRB 125, 127
(1997). “It is well established that this test does not depend on motive or the
successful effect of the coercion.”
The
first allegation of an unlawful threat is based on the following statement,
which Brink made about Farrell during the week of April 17, 2005: “[P]ut him on
my crew, I can run him off.” Brink made this statement during a telephone
conversation with T. Steele in the immediate presence and hearing of his
supervisee, Fuller, and afterwards Brink turned to Fuller and explained that he
had been speaking to T. Steele and that Farrell was a union organizer. The
Board has long held that an employer violates Section 8(a)(1) of the Act when
it threatens to discharge or constructively discharge employees who are union
activists. Desert Toyota, 346 NLRB No. 3, slip op. at 5 (2005) (threat
of discharge unlawful); Mercedes Benz of Orland Park, 333 NLRB 1017
(2001), enfd. 309 F.3d 452 (7th Cir. 2002) (same); Lyman Steel Co., 249
NLRB 296, 301 (1980) (threat of constructive discharge unlawful); Big Ben
Shoe Store, 172 NLRB 1523 (1968), enfd. as modified 440 F.2d 347 (7th Cir.
1971) (same); see also Albertson Mfg. Co., 236 NLRB 663, 665 (1978)
(employer violates Section 8(a)(1) when it threatens to constructively discharge
union supporters by “living on their backs”). This is true regardless of
whether the threat to discharge a union activist is communicated to the
activist or, a here, to another employee. See Desert Toyota, 346 NLRB
No. 3, slip op. at 1 (statement to one employee linking another employee’s
discharge to the latter’s support of the
For
the reasons discussed above, I find that the Respondent violated Section
8(a)(1) of the Act during the week of April 17, 2005, by threatening to force
an employee off the job because he was a union organizer.
The
second allegation of an unlawful threat is based on the statements that Hall
testified Brink made on April 27, 2005, regarding Hall’s decision to wear
clothes with union slogans or insignias. According to Hall, Brink told him that
the clothes were “going to cost [him]” and that if he wore such clothes “he might
as well join them.” Hall also testified that Brink dared him to “walk in the
office and see how they appreciate . . . those clothes.” For the reasons
discussed above, I found that the record does not establish that Brink more
likely than not made these statements. Therefore, I will recommend that the
allegation regarding statements by Brink to Hall on April 27, 2005, be
dismissed.
The
third alleged threat is the statement that Brink made to Hall and Fuller in
mid-May 2005 that any employee who signed a union card “would be fired” and
that “there was ways of finding” out which employees “did or did not” sign. An
employee’s decision to sign, or not sign, a union authorization card is clearly
protected by the Act, and an employer violates Section 8(a)(1) by threatening
to discharge employees who choose to sign. Carroll & Carroll, Inc.,
340 NLRB 1328, 1331–1332 (2003);
The
fourth alleged threat is Brink’s statement to Fuller and Hall in May 2005 that
before “T. Steele . . . was to go union,” he would “sell his drill . . . and
just build houses.” An employer violates the Act when it threatens to respond
to protected activity by closing part of its business. John W. Hancock Jr.,
Inc., 337 NLRB 1223 (2002); Air-Vac Industries, Inc., 259 NLRB 336,
342 (1981). Brink’s statement that the Respondent would discontinue the phone
tower portion of its operations if the employees selected the
For
the reasons discussed above, I find that Brink’s statement to Fuller and Hall
in May 2005 that the Respondent would partially close its business if the
employees selected the Union as their bargaining representative was a threat in
violation of Section 8(a)(1).
The
last allegation of an unlawful threat is based on Kuhlenbeck’s June 3
statements to Farrell and Hall. On that occasion, Farrell was asking for a
week’s unpaid leave of absence, and offered to find someone to fill in for him
during that time. Kuhlenbeck answered that the Respondent was “not going to
hire another union worker,” and was a “non-union shop.” An employer’s statement
that it will not hire union supporters is an unlawful threat. Commercial
Erectors, Inc., 342 NLRB 940, 942 fn. 4 (2004). I find that Kuhlenbeck’s
statement that the Respondent would refuse employment to union members was a
threat in violation of Section 8(a)(1).
2.
Impression of surveillance
The
General Counsel alleges that the Respondent unlawfully created the impression
that employees’ union activities were under surveillance when, in mid-May 2005,
Brink told Hall and Fuller that employees who signed a union card “would be
fired” and responded to Hall’s statement that the Respondent would not know who
signed, by stating that the Respondent had “ways of finding” out who “did or
did not” sign. An employer violates the Act when it creates the impression
among its employees that it has placed their union activity under surveillance.
I find
that the Respondent violated Section 8(a)(1) by creating the impression that
employees’ union activities were under surveillance when, on May 2005, Brink
told employees that the Respondent had ways of finding out whether they signed
union cards.
3. Interrogation
The
General Counsel alleges that the Respondent engaged in an unlawful
interrogation when Brink asked Fuller if Farrell had given him the union
speech. Fuller answered that Farrell had talked to him about the subject in the
past. An interrogation is unlawful if, in light of the totality of the circumstances,
it reasonably tends to interfere with, restrain, or coerce employees in the
exercise of their Section 7 rights. Millard Refrigerated Services, 345
NLRB No. 95, slip op. at 4–5 (2005); Mathews Readymix, Inc., 324 NLRB
1005, 1007 (1997), enfd. in part 165 F.3d 74 (D.C. Cir. 1999); Emery
Worldwide, 309 NLRB 185, 186 (1992). Relevant factors include, whether the
interrogated employee was an open or active union supporter, the background and
timing of the interrogation, the nature of the information sought, the identity
of the questioner, the place and method of the interrogation, whether a valid
purpose for the interrogation was communicated to the employee, and whether the
employee was given assurances against reprisal. Millard Refrigerated, above;
Stoody Co., 320 NLRB 18, 18–19 (1995); Rossmore House Hotel, 269 NLRB 1176,
1177–1178 (1984), enfd. 760 F.2d 1006 (9th Cir. 1985). Considering all the relevant factors, I conclude that Brink engaged in a coercive interrogation
of Fuller in mid-May 2005. Fuller was not shown to have chosen to make his
views about union activity known. Indeed, the record does not disclose whether
he had taken any position at all regarding such activity. Brink posed the
question against the background of his own open hostility towards the union
activity. At around the time the questioning took place, Brink had unlawfully
threatened that employees who engaged in union activity would be subject to
discharge and other retaliation. See Millard Refrigerated Services,
above, slip op. at 5 (questioning unlawful where it occurred in a context that
included other coercive conduct). The question that Brink posed related solely
to union activities and was not shown to have any legitimate purpose. See Structural
Composite Industries, 304 NLRB 729 (1991) (violation found where employee
questioned was not an open union adherent and the questioning was directed
solely at the employee’s union activities). Brink posed the question out of the
presence of other employees and at a jobsite where he had broad supervisory
authority over Fuller. The Respondent does not claim that Brink offered
reassurances that neither Fuller’s, nor Farrell’s, employment would be affected
by Fuller’s answer to the question about the union “speech.” All of these
factors weigh heavily in favor of finding that the questioning was coercive in
violation of Section 8(a)(1).
Not all
the evidence favors finding that the interrogation was coercive. The questioner
was a working foreman with whom Fuller had daily contact—not T. Steele or some
other high level official with whom Fuller had less experience interacting.
Moreover, Brink did not pester Fuller with repeated, or particularly pointed,
questions. Based on the record, I do not consider it implausible that Brink
believed he was making small talk, but the inquiry does not turn on Brink’s motives
or on whether Fuller was, in fact, coerced by the interrogation. Dlubak
Corp., 307 NLRB 1138, 1146 (1992), enfd. mem. 5 F.3d 1488 (3d Cir. 1993)
(The test of whether an interrogation is coercive does not turn on the Respondent’s
motive, gentleness, or on whether the coercion succeeded or failed.). After
considering all of the circumstances discussed above, I conclude that the
indicia that the interrogation was coercive outweigh those that the interrogation
was benign in nature.
For the
reasons stated above, I find that in mid-May 2005 the Respondent violated
Section 8(a)(1) by coercively interrogating Fuller about employees’ union
activities.
B.
Reassignment of Farrell
An employer violates the Act by changing an employee’s working conditions in
order to deter or discourage union activities. Banta Catalogue Group, 342 NLRB 1311, 1322 (2004). The General
Counsel alleges that the Respondent violated Section 8(a)(3) and (1) of the Act
by transferring Farrell from a tower crew to a house crew because he had
assisted the
The
General Counsel has met its initial burden in this case. By the time the
Respondent transferred him, Farrell had engaged in protected activity on
multiple occasions. In addition to identifying himself as a union organizer to
all three other members of Anderson’s crew, Farrell had given Barnewolt a copy
of the union contract, had told Barnewolt about the Union’s healthcare plan,
had discussed working conditions with Anderson, and had offered to provide
Anderson with a copy of the Union’s standard contract. Within a day or two of
when Farrell began work, T. Steele and Oliver learned that he was an organizer.
Not long after that, Farrell asked T. Steele if he could be excused from work
on Friday, April 22, in order to attend union organizing school. Thus it is
clear both that Farrell engaged in union activity during his first week with
the Respondent, and that the Respondent was aware of that fact when it
transferred him effective the following Monday.
The
evidence demonstrates the presence of antiunion animus that was connected to
the decision to transfer Farrell to Brink’s crew. T. Steele testified that, in
his view, he was entitled to discharge Farrell during the first week of employment
because Farrell was a union organizer and had omitted that information from his
application.15 T. Steele did not immediately discharge
Farrell, but he did act quickly to transfer Farrell to a new crew. That new
crew was not just any one of the approximately seven operated by the
Respondent, but rather the crew operated by Brink, a supervisor who was
publicly and vehemently antiunion. Indeed, during a conversation with T. Steele
shortly before the transfer, Brink had offered to force Farrell off the job.
In
addition, the record shows that T. Steele was hostile to unions. As soon as he
discovered that Farrell was a union organizer, T. Steele formed a negative
impression of what to expect from Farrell. He also began to create a special
document, not maintained for other employees, in which he reported negative
comments that Brink made about Farrell’s performance. It is clear that the
purpose of this document was not to keep an accurate record of Farrell’s performance,
but to keep a negative record. At trial, T. Steele admitted that Brink
initially told him that Farrell was doing a “nice job.” However, the special
document about Farrell’s performance does not record that positive comment from
Brink, or any other positive information about Farrell, but rather is limited
to Brink’s negative remarks. T. Steele transferred Farrell to Brink’s crew,
knowing that Brink had offered to force Farrell off the job. When T. Steele was
asked at trial whether he had any anti-union animus or belief, he answered
“no,” but then, unsolicited, delivered an angry diatribe—one of the lengthiest
continuous statements by any witness in this proceeding—about the conduct of
unions and union officials. (Tr.
450–452.)
The
timing of Farrell’s transfer provides further evidence that antiunion
motivation played a part in the decision. See North Carolina License Plate
Agency # 18, 346 NLRB No. 30, slip op. at 2 (2006) (“[T]he timing of the
discharges, immediately following the employees’ threat to file a complaint, provides
strong evidence of . . . animus.”); Detroit Paneling Systems, Inc., 330 NLRB 1170 (2000) (timing
is an important factor in assessing motivation in cases alleging discriminatory
discipline based on union or protected activity); Bethlehem Temple Learning
Center, 330 NLRB 1177, 1178 (2000) (same). Farrell applied for an operator
position and was assigned to a tower crew on which he performed operator’s
work. Generally employees assigned to the Respondent’s tower crews continue to
work primarily on tower crews. However, almost immediately after discovering
that Farrell was a union organizer, T. Steele decided to reassign Farrell to
perform lower-skilled laborer’s work on the house crew run by the very foreman
who had offered to force Farrell off the job. During Farrell’s remaining 7
weeks of employment, the Respondent assigned Farrell exclusively to Brink’s
house crew.
Since
the General Counsel has made the required initial showing, the burden shifts to
the Respondent under Wright Line, supra, to show that it would have taken
the same action even in the absence of Farrell’s protected activities. T.
Steele testified that he transferred Farrell because the “crunch” on
First,
the Respondent failed to show that a “crunch” on
The
record leads me to conclude that the Respondent transferred Farrell to Brink’s
crew in hopes that the strongly antiunion Brink would manage to get rid of
Farrell or impede his organizational efforts. In fact, after the transfer,
Brink consistently assigned Farrell to perform laborer tasks instead of the
more skilled operator work that Farrell was qualified to do, had applied to
perform, and had initially been assigned to. Moreover, Farrell’s work hours
were cut dramatically on Brink’s crew. Brink openly disparaged Farrell at work,
nicknaming him “Union Joe,” and making a crude comment about Farrell’s union
activity. During the same period, Brink was unlawfully coercing other crew
members with multiple threats, interrogation, and the impression of
surveillance.
I
find that the Respondent violated Section 8(a)(3) and (1) when, on about April
25, 2005, it discriminatorily transferred Farrell because of his activities on
behalf of the
C. Discharge of Farrell
The
complaint alleges that the Respondent discharged Farrell because he assisted
the
The
record demonstrates that Brink’s antiunion animus played a part in the decision
to terminate Farrell. T. Steele testified that, when he decided to discharge
Farrell, he relied on Brink’s reports about Farrell’s performance. Brink’s
animus, and specifically his bias relative to Farrell, is amply demonstrated by
the record. Before he ever met Farrell, Brink commented negatively about the
new employee, remarking to one or more of his supervisees that it was a mistake
to hire a union organizer. Brink stated that he could run Farrell off the job
if Farrell was transferred to his crew. When Brink found out that Farrell was
coming to his crew, he formed the impression that Farrell would not work out,
even though the two had still not met. Once Farrell started working on Brink’s
crew, Brink made statements to supervisees in which he demeaned Farrell’s union
activities. As found above, Brink also violated the Act by threatening
employees with adverse consequences for union activity, interrogating an
employee about union discussions, and creating the impression that employees’
organizational activities were under surveillance. Even T. Steele found it necessary
to advise Brink to keep his opinions about unions to himself, and, at trial,
Brink’s demeanor became palpably hostile when he was testifying about unions.
Brink’s antiunion animus, and more particularly his hostility to the presence
of a union organizer on the Respondent’s work force, could not be clearer. See,
infra, footnote 2. Brink’s animus unlawfully taints the Respondent’s decision
to discharge Farrell, even if one assumes that T. Steele’s motives were not
unlawful, since T. Steele based the decision to discharge Farrell largely on
the reports he received from Brink. The Respondent’s reliance on the tainted
reports establishes a nexus between the discharge and unlawful discrimination,
and satisfies the final element of the General Counsel’s initial burden. Parts
Depot, Inc., 332 NLRB 670, 672 (2000), enfd. 24 Fed. Appx. 1 (D.C. Cir.
2001).
By
stating that the General Counsel’s case regarding Farrell’s discharge does not
depend on a showing that T. Steele was himself motivated by unlawful
discrimination, I do not mean to suggest that the record shows T. Steele was,
in fact, acting without such motivation. To the contrary, I conclude that the
evidence suggests antiunion animus played a part in T. Steele’s action. T.
Steele stated that, in his view, Farrell was subject to discharge as soon as it
was discovered that Farrell was a union organizer and had not disclosed that
information on his application. T. Steele relied on the negative reports that
Brink made regarding Farrell, even though T. Steele knew that Brink had offered
to force Farrell off the job and had trouble keeping his views on unions to
himself. Moreover, T. Steele relied on Brink’s reports without giving Farrell
an opportunity to respond or explain. Such failure would be an indicia of discriminatory
intent even if T. Steele had not been aware of Brink’s hostility towards union
activity; but given that T. Steele was aware, his actions are hard to
understand other than as evidence that he was not interested in determining
whether the misconduct described by Brink had actually occurred. See Government Employees (IBPO), 327 NLRB
676, 700–701 (1999), enfd. mem. 205 F.3d 1324 (2d Cir. 1999) (failure to afford
employee an opportunity to respond to allegations before imposing discipline
“lends support to an inference of unlawful motivation and shows that [the
employer] was not truly interested in determining whether misconduct had
actually occurred”); New Orleans Cold
Storage & Warehouse Co., 326 NLRB 1471, 1477 (1998), enfd. 201 F.3d 592
(5th Cir. 2000) (“The failure to conduct a meaningful investigation and to give
the employee who is the subject of the investigation an opportunity to explain
are clear indicia of discriminatory intent.”). Moreover, as discussed above,
the evidence shows both
that T. Steele bore antiunion animus, and that he had been working to assemble
a negative, one-sided, paper trail regarding Farrell’s performance.
The timing of Farrell’s termination also lends support to the view that his union and other protected activity motivated the Respondent’s decision to terminate him. See North Carolina License Plate Agency, 346 NLRB No. 30, slip op. at 2; Detroit Paneling Systems, 330 NLRB at 1170; Bethlehem Temple Learning, 330 NLRB at 1178. Farrell was terminated on June 10, only 1 day after informing T. Steele that he had brought various safety concerns to the attention of OSHA. T. Steele discharged Farrell at the June 10 meeting Farrell had requested in order to describe additio