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,
Frye Electric,
Inc. and International Brotherhood of
Electrical Workers, Local 481, a/w International Brotherhood of Electrical
Workers, AFL–CIO. Case
25–CA–30270
April 28, 2008
DECISION AND ORDER
By Chairman Schaumber and Member
Liebman
On October 19, 2007,
Administrative Law Judge Paul Buxbaum issued the attached decision. The Respondent filed exceptions and a supporting
brief and the General Counsel filed an answering brief.1
The National Labor
Relations Board has considered the decision and the record in lights of the
exceptions and briefs and has decided to affirm the judge’s rulings, findings,2 and conclusions as modified and to
adopt his recommended Order as modified below.3
ORDER
The National Labor
Relations Board adopts the recommended Order of the administrative law judge as
modified below and order that the Respondent, Frye Electric, Inc.,
1. Delete paragraph 1(b)
and reletter the subsequent paragraph.
2. Substitute the attached
notice for that of the administrative law judge.
Dated,
Peter
C. Schaumber,
Chairman
Wilma
B. Liebman,
Member
(seal) National Labor Relations Board
APPENDIX
Notice
To Employees
Posted
by Order of the
National
Labor Relations Board
An Agency of the
The National Labor
Relations Board has found that we violated Federal labor law and has ordered us
to post and obey this notice.
federal law gives you
the right to
Form, join, or assist a
union
Choose representatives to
bargain with us on your behalf
Act together with other
employees for your benefit and protection
Choose not to engage in any
of these protected activities.
We
will not discharge or otherwise discriminate
against Thomas Fosnight, Dennis Hensley, or any of our other employees for supporting,
engaging in activities on behalf of, or seeking assistance from, the
International Brotherhood of Electrical Workers, Local 481, AFL–CIO, or any
other union.
We
will not in any like or related manner
interfere with, restrain, or coerce our employees in the exercise of their
rights guaranteed by Section 7 of the Act.
We
will, within 14 days from the date of
this Order, offer Thomas Fosnight and Dennis Hensley full reinstatement to
their former jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or any other rights
or privileges previously enjoyed.
We
will make Thomas Fosnight and Dennis
Hensley whole for any loss of earnings and other benefits resulting form their
discharge, less any net interim earnings, plus interest.
We
will, within 14 days from the date of
this Order, remove from our files any reference to the unlawful discharges of
Thomas Fosnight and Dennis Hensley, and we
will, within 3 days thereafter, notify each of them in writing that this
has been done and that the discharges will not be used against them in any way.
Frye Electric, Inc.
Raifael Williams, Esq., for the General Counsel.
Michael
L. Einterz, Esq., of
for the
Respondent.
Steve
Dunbar, of
Charging
Party.
DECISION
Statement of the Case
Paul Buxbaum, Administrative Law Judge. This case was tried in
The complaint
alleges that the Company wrongfully discharged two of its employees, Thomas
Fosnight and Dennis Hensley, because of their protected union activities. It is also alleged that an agent of the
Company, Rick Miers, coercively interrogated Fosnight about his union
activities. The General Counsel asserts
that these actions violated Section 8(a)(1) and (3) of the National Labor
Relations Act (the Act). The Company
filed an answer denying the material allegations of the complaint. As described in detail in the decision that
follows, I conclude that the Company did violate the Act in the manner alleged
by the General Counsel.
On the entire
record,[2]
including my observation of the demeanor of the witnesses, and after
considering the briefs filed by the General Counsel and the Company, I make the
following
Findings of Fact
i. jurisdiction
The Company, a
corporation, engages in the business of electrical contracting at its facility
in
ii. alleged unfair labor practices
A. The Facts
Frye Electric,
an
At all relevant
times, the Company has employed approximately 35 persons, including 29
nonsupervisory and nonclerical personnel.
These consist of two classifications, lead electricians and
helpers. The work force is not represented
by a labor organization. There are three
managerial employees, Frye, Miers, and Gregory Wells.[4] Miers is the vice president of operations and
the number two ranking official in the Company.
Wells is director of operations.
Both men report directly to the president, Frye. Generally speaking, Wells manages the residential
division and Miers is in charge of the commercial side.
The remaining
key participants in the events of this case are two employees of the Company,
Fosnight and Hensley. Fosnight, a lead
electrician, was originally hired by the Company in April 2000. He remained in that position until December
5, 2005. The circumstances of his
departure in 2005 are somewhat unclear.
The attorneys did not ask Fosnight for his account of what led to his
departure from employment. Initially,
Frye was unequivocal in asserting that Fosnight was fired, “because he was
smoking pot during company time in a company truck.” (Tr. 63.)
Under further examination by counsel for the General Counsel, Frye
retreated from this contention. He was
shown personnel records indicating that Fosnight had twice smoked marijuana in
a company vehicle. According to the
records, he was given a warning for the first offense. On the second occasion, the personnel file
reflects that:
Tom smoked again (in truck?)[.] He was told to take 3 days off (w, th, f) by
Rick M[iers]. Tom came in and quit on Monday
(Dec. 5th)?
(GC Exh. 7, p. 2.) After examining this record, Frye testified
that, “I’m not sure if he quit or not.”
(Tr. 65.)
Wells provided a
different version, indicating that Fosnight was suspended for 5 days for
smoking pot in the van. As he described
it, “I told him to take five days off of work, and he never came back.”[5] (Tr. 76.)
On balance, I conclude that both Wells’ version and the description in
the personnel file support the conclusion that Fosnight was suspended for
marijuana usage and quit as a result.
It is undisputed
that Fosnight was hired for a second time as a lead electrician in June
2006. This was initiated through
communications involving Fosnight’s brother who had continued to be employed by
the Company. Fosnight testified that
Frye asked his brother to invite him to return to employment. Subsequently, Fosnight met with Frye and
Miers. He agreed to return to work,
subject to certain conditions. He requested
and received a wage increase. In
addition, he explained that family and other commitments precluded him from
accepting on-call assignments. This
refers to the Company’s practice of making rotating weekly assignments of
employees to be available after hours and on weekends for emergency service
calls. Fosnight testified that Miers and
Frye agreed to these terms of employment.[6] As a result, Fosnight returned to duty on
June 20, 2006.
Just over 2
months later, Hensley joined the Company’s work force. He had been working on hurricane reconstruction
in
Matters
continued in this posture until mid-to-late January. At that time, management decided to alter
Fosnight’s conditions of employment by requiring him to participate in the
on-call assignment rotation.[7] Wells testified that he and Miers met with
Fosnight to inform him of this change.
According to Wells, Fosnight responded by stating, “I’ll see what I can
do.” (Tr. 102.) Nevertheless, Wells indicated that, after
making that statement, Fosnight “cops a little attitude and walked out.” (Tr. 102.)
Fosnight confirmed the meeting and reported that he complained to the
supervisors that he did not think this change in his conditions of employment
was fair due to their prior understanding regarding this issue.
The parties
agree that Wells and Fosnight had a second discussion about the on-call duty
approximately a week or 2 later. Wells
reported that Fosnight, “[R]efused to take on call, he wasn’t going to do it.” (Tr. 102.)
Fosnight indicated that Wells became “loud and verbally abusive with me.” (Tr. 138.)
He told Fosnight that “I could either take the call or I could be terminated.” (Tr. 139.)
Fosnight disputed Wells’ assertion that he refused the assignment. Instead, he testified that “I said nothing. I bit my lip, turned around and walked out.” (Tr. 139.)
I resolve this
conflict in the testimony by noting that the Company’s subsequent actions
support Fosnight’s account. That account
indicates that Fosnight expressed disgruntlement with the decision to place him
on the emergency schedule, but never made a statement refusing to perform the
assignment. This is entirely consistent
with the Company’s action placing his name on the posted list for future
on-call assignments. I conclude that it
would have been odd for the Company to have taken such action in the face of an
unequivocal refusal to accept the duty.
Had Fosnight taken such a definitively negative stance, one would assume
that the Company would have implemented its decision to terminate his employment
for such a refusal. This, coupled with
my general conclusion that the managers’ testimony was unreliable, leads me to
accept Fosnight’s version of the parties’ conversations during their meetings regarding
the on-call schedule.
In any event, it
is undisputed that management proceeded to implement its decision to require
Fosnight to participate in the on-call rotation by posting a schedule showing
that Fosnight would have his first on-call assignment commencing on March
23. It is clear that the decision to
alter Fosnight’s conditions of employment led to his disaffection with his
job. In February, he contacted the
On February 21,
Fosnight did meet with
Two days later,
on the morning of February 23, Fosnight and Hensley were present in the Company’s
breakroom prior to making their service calls.
A number of other employees were also present, including Keith Shepard,
Corey Trotter, Shannon Reed, and Mike Cook.
They were located “a couple of feet” from Fosnight and Hensley. (Tr. 135.)
At that time, Fosnight began to recount to Hensley what he had learned regarding
the benefits of membership in the
Fosnight and
Hensley’s discussion of the
Wells’ account
would seem like a straightforward example of a company president and the
director of its residential department discussing and determining whether to
discharge two employees of that residential operation. Nevertheless, it is directly contradicted by
Frye’s own version of this decisionmaking process. For example, counsel for the General Counsel
explored with Frye the nature of that process regarding Hensley as follows:
Counsel: Now did you have any participation at all in the decision to discharge Mr. Hensley?
Frye: No.
Counsel: Do you know when the decision was made to discharge Mr. Hensley?
Frye: No.
Counsel: Do you know if anyone conducted an investigation or anything like that prior to Mr. Hensley’s discharge?
Frye: I wouldn’t know that.
Counsel: You don’t know?
Frye: No.
(Tr. 58.)
Similarly, counsel asked Frye who made the decision to fire Fosnight and
when it was made. He flatly indicated
that Wells had made that determination and that he had no idea when the
decision had been made. Specifically, he
was asked if Wells had consulted him prior to Fosnight’s discharge and he responded,
“I don’t believe so.” (Tr. 54.)
This stark
contrast between the testimonies of the two managers is highly probative on the
overall questions of exactly what happened and what motivated the Company’s
officials to make it happen. It is
certainly reasonable to expect that the two supervisors would be able to
provide a consistent explanation of the manner in which it was decided to discharge
the two employees. In this regard, I
note that the events under examination took place only a matter of months
before the trial of this case. The
Company is a relatively small employer and the firing of two employees on the
same day was surely a noteworthy and unusual event.[8] Despite this, the Company was unable to
present a coherent account of how it was decided to make these important employment
decisions.
In Black Entertainment Television, 324 NLRB
1161 (1997), the Board endorsed an earlier observation by an administrative law
judge that “[t]he Board has long expressed the view that when an employer vacillates
in offering a rational and consistent account of its actions, an inference may
be drawn that the real reason for its conduct is not among those asserted.” [Internal quotation marks and citation
omitted.] I readily draw such an
inference in this situation, noting particularly that Frye’s professions of a
degree of ignorance amounting to blithe indifference regarding the decision to
terminate two employees on the same day suggests that he was attempting to
distance himself from responsibility for an improperly motivated course of
conduct. It is far more likely that, as
Wells described, the two men discussed the matter and reached a joint decision
to proceed with such consequential personnel actions.
After Wells and
Frye decided to fire the two men, it fell to Wells to make the necessary
announcements. At the conclusion of the
workday, Fosnight and Hensley returned to the Company’s facility. While Hensley proceeded to unload tools from
the van, Fosnight went inside to clock out for the day. Fosnight testified that Wells approached him
and stated that “they were parting ways with me.” (Tr. 136.)
Wells agreed, reporting that he told Fosnight that “[w]e feel that it’s
just best for us to part ways.”[9] (Tr. 106.)
According to
Wells, upon being fired, Fosnight responded, “[w]hatever,” and walked out the
door. (Tr. 106.) Shortly thereafter, he returned, throwing the
keys to the Company’s van at Wells. The
two men had no further conversation and Fosnight left the premises. On the other hand, Fosnight testified that he
asked Wells for an explanation of why he was being terminated. Wells declined to discuss it. Fosnight removed his things from the van and
walked back inside. He handed Wells the
keys and left the premises.
As to these
conflicting accounts of what transpired after Wells told Fosnight he was discharged,
I credit Fosnight’s. It comports with a
common sense appreciation of human behavior in this unhappy situation to
conclude that a man who has just been told that he has been deprived of his
means of earning a living would attempt to learn why this was being done to
him. To believe that a person in
Fosnight’s position, having heard such startling and unpleasant news from his
boss, would simply shrug it off as Wells claims is to ignore basic human emotions.
Following his
termination, Fosnight told Hensley what had just happened to him. Hensley testified that he asked Fosnight why
he had been fired. Fosnight explained
that Wells, “didn’t give me any reason.”
(Tr. 160.) Hensley proceeded to
enter the facility in order to clock out himself. Once inside, Wells approached and told
Hensley that he was discharged. As Wells
testified, he told Hensley that “it’s best we part ways.” (Tr. 110.)
Both men agree that Hensley asked for a reason for his firing. Wells’ response was to state, “[L]et’s just
leave it as the best course to part ways.”
(Tr. 110–111.) Hensley then left the premises and telephoned
his wife to report the bad news.
While driving
home a few minutes after these events, Fosnight decided to telephone
Miers. Fosnight testified that he asked
Miers about his termination and Miers, “told me he had only learned about [it]
minutes previous to it and then asked me what was this about biding my time ‘till
the union called.” (Tr. 136.) Miers confirmed that Fosnight phoned him
shortly after his termination and asked him, “if I knew what was going on and
why.” (Tr. 198.) He reported that he responded by telling Fosnight
that “Tom, I don’t know what’s going on yet.
I said, once I find out, I said I’ll let you know.” (Tr. 198.)
This ended their conversation and they have never spoken since. Miers specifically denied making any reference
to the
Once again, I
must resolve a flat contradiction between these accounts. In doing so, I note that Miers’ version
strikes me as a highly unlikely course of action for a management official to
take. I find it very peculiar for a
manager outside the normal chain of authority for the residential operation, on
learning of the discharge of a residential employee, to promise the employee
that he would investigate the matter and report back to the now-fired
worker. Indeed, reinforcing my conclusion
in this regard is the fact that Miers readily conceded that he did not perform
any such investigation and did not report back to Fosnight at any time
thereafter. His feeble excuse for
breaking his supposed commitment to do so was simply that Fosnight, “didn’t
call me back. Obviously, he wasn’t
interested as to why [he had been fired].”
(Tr. 202.) I reject this
illogical picture of events and credit Fosnight’s testimony that Miers gave him
a veiled account of the true reason for his discharge through the mechanism of
posing a question about Fosnight’s union activities.
It will be
recalled that the Company’s explanation of the opening chapter of the events
involving the discharges at issue in this case was marked by contradictory
testimony. Frye and Wells were unable to
present a coherent account of the manner in which they decided to fire the two
employees. It is noteworthy that the
final chapter of this tale was similarly clouded by the Company’s inability to
explain a matter as simple as the post-discharge documentation of the
firings.
It is
uncontroverted that, at the time they were fired, Fosnight and Hensley were not
given any written documentation regarding their terminations. Instead, Wells testified that he prepared
such reports, “[r]ight after they walked out the door.” (Tr. 108.)
However, when shown the actual reports, he noted that they were dated as
of the following day, February 28. As a
result, he had to concede that he had actually prepared these reports on the
following day. Taken in isolation, this
would be a minor point. However, viewed
in the context of a string of inaccuracies and contradictions, it underscores
the conclusion that the Company has been unable to provide a rational and consistent
account of its behavior regarding the key events of this case.
To round out the
history of this matter, Fosnight testified that he contacted
B. Legal Analysis
1. The discharges of Fosnight and Hensley
In assessing the
legality of the Company’s terminations of Fosnight and Hensley, the key inquiry
will focus on the question of the employer’s motivation. As a result, I must apply the analytical framework
for analysis devised by the Board in Wright
Line.[10] A
comprehensive distillation of that test was provided by the Board in American Gardens Management Co., 338
NLRB 644, 645 (2002):
Wright Line is premised on the legal principle that an employer’s unlawful motivation must be established as a precondition to finding an 8(a)(3) violation. In Wright Line, the Board set forth the causation test it would henceforth employ in all cases alleging violations of Section 8(a)(3). The Board stated that it would, first, require the General Counsel to make an initial showing sufficient to support the inference that protected conduct was a motivating factor in the employer’s decision. If the General Counsel makes that showing, the burden would then shift to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct. The ultimate burden remains, however, with the General Counsel.
To establish his initial burden under Wright Line, the General Counsel must establish four elements by a preponderance of the evidence. First, the General Counsel must show the existence of activity protected by the Act. Second, the General Counsel must prove that the respondent was aware that the employee had engaged in such activity. Third, the General Counsel must show that the alleged discriminatee suffered an adverse employment action. Fourth, the General Counsel must establish a motivational link, or nexus, between the employee’s protected activity and the adverse employment action.
If, after considering all of the relevant evidence, the
General Counsel has sustained his burden
of proving each of these four elements by a preponderance of the evidence, such
proof warrants at least an inference that the employee’s protected conduct was
a motivating factor in the adverse employment action and creates a rebuttable
presumption that a violation of the Act has occurred. Under Wright
Line the burden then shifts to the employer to demonstrate that the same
action would have taken place even in the absence of the protected
conduct. [Internal quotation marks,
citations, footnotes, and language not relevant to this case have been
omitted.]
In applying its Wright Line test, the Board mandates
consideration of a wide range of evidence and appropriate inferences derived
from that evidence. In West Maui Resort Partners, 340 NLRB 846,
847 (2003), rev. dismissed 2004 WL 210675 (D.C. Cir. 2004), it observed:
Proof of discriminatory motivation can be
based on direct evidence or can be inferred from circumstantial evidence based
on the record as a whole. To support an inference of unlawful motivation, the
Board looks to such factors as inconsistencies between the proferred reason for
the discipline and other actions of the employer, disparate treatment of
certain employees compared to other employees with similar work records or
offenses, deviation from past practice, and proximity in time of discipline to
the union activity. [Citations omitted.]
Keeping these principles in mind, I will
now examine the facts and circumstances involved in the discharges at issue.
Initially, the
General Counsel must show that the employees engaged in protected activities
within the meaning of the Act. Of
course, it is clear that Fosnight, spurred by dissatisfaction with the decision
to require him to perform on-call duty, contacted the
The situation is
only slightly less clear regarding Hensley’s involvement in protected union
activities. While recognizing that
Hensley did not apply for membership until after his discharge, it is apparent
that he did engage in discussions with Fosnight regarding the
Having found
that the two employees engaged in protected union activities, I must next
determine whether the Company was aware of their involvement in this
conduct. Turning first to Fosnight, I
conclude that there is direct evidence that management was aware of his union activities. It will be recalled that immediately after he
was discharged, Fosnight telephoned Miers and inquired why he had been
fired. Miers responded by asking Fosnight,
“[W]hat was this about biding my time ‘till the union called.” (Tr. 136.)
This statement by the Company’s second highest ranking official clearly
shows knowledge of Fosnight’s union activities.[12]
In addition to
direct evidence of knowledge about protected activities, the Board turns to
analysis of a variety of other factors in assessing this element of the Wright Line test. This was comprehensively explained in Montgomery Ward & Co., 316 NLRB
1248, 1253 (1995), enf. 97 F.3d 1448 (4th Cir. 1996), as follows:
[A] prerequisite to establishing that [employees] were wrongfully discharged is finding that the Respondent knew of their union activities. This “knowledge” need not be established directly, however, but may rest on circumstantial evidence from which a reasonable inference of knowledge may be drawn. Indeed, the Board has inferred knowledge based on such circumstantial evidence as: (1) the timing of the allegedly discriminatory action; (2) the respondent’s general knowledge of union activities; (3) animus; and (4) disparate treatment. The Board additionally has relied on factors including the delay between the conduct cited by the respondent as the basis for the discipline and the actual discharge, and—in the case of multiple discriminatees—that the discriminatees were simultaneously discharged.
Finally, the Board has inferred knowledge where the reason given for the discipline is so baseless, unreasonable, or contrived as to itself raise a presumption of wrongful motive. Even where the employer’s rationale is not patently contrived, the Board has held that the “weakness of an employer’s reasons for adverse personnel action can be a factor raising a suspicion of unlawful motivation.”
The factors on which the Board relies when inferring knowledge do not exist in isolation, but frequently coexist. For example, in BMD Sportswear Corp., the Board reversed the judge and found that the General Counsel had established that alleged discriminatees were unlawfully laid off, even in the absence of direct evidence that the employer knew of their union activities. There the respondent had demonstrated antiunion animus, discriminated against other employees, proffered unsubstantiated reasons for the layoff, and the layoffs were proximate to the start of the union organizing campaign. [Footnote and numerous citations omitted.]
Turning to the
application of these factors, it is first vital to note the temporal
relationship between the employees’ breakroom conversation and the disciplinary
action taken against them. Fosnight and
Hensley engaged in a favorable discussion about the
I conclude that
Miers’ contention that he encountered this scuttlebutt only on the day after
the discharges is all too convenient. In
its so-called “small plant doctrine,” the Board has long recognized that it is
reasonable to infer that management of a small firm is likely to gain knowledge
of the identity of employees who are involved in union activities. See Wiese
Plow Welding Co., 123 NLRB 616 (1959); D
& D Distribution Co. v. NLRB, 801 F.2d 636 at fn. 1 (3d Cir. 1986) (“The
essence of the small plant doctrine rests on the view that an employer at a
small facility is likely to notice activities at the plant because of the
closer working environment between management and labor.”); and LaGloria Oil & Gas Co., 337 NLRB
1120, 1123 (2002), affd. 71 Fed. Appx. 441 (5th Cir. 2003). Miers’ admission that there was virtually
contemporaneous scuttlebutt about the union activity strongly supports the validity
of the application of the small plant doctrine to the facts of this case.
In addition to
the inference I have drawn based on the likelihood that Fosnight and Hensley’s
conversation about the
Fosnight and
Hensley discussed the benefits of the
The Board also
applies a related concept when assessing the circumstantial evidence regarding
an employer’s behavior. Once again
citing the Second Circuit, the Board has noted that “[t]he abruptness of the
discharge[ ] and [its] timing are ‘persuasive evidence’ that the company had
moved swiftly to eradicate the . . . prime mover[ ] of the union drive.” Toll Mfg.
Co., 341 NLRB 832, 833 (2004), citing Abbey’s
Transportation Services v. NLRB, 837 F.2d 575, 580 (2d Cir. 1988). Here, the abruptness of the discharges is
noteworthy. As counsel for the General
Counsel observes:
The fact that the respondent waited until
after Fosnight’s and Hensley’s termination to prepare [termination] reports suggests
that respondent was in a hurry to discharge Fosnight and Hensley first and
think of the reasons for their discharges afterwards.
(GC Br. at pp. 7–8.)
I find the precipitous timing and the abrupt nature of the terminations
in this case to be highly probative of unlawful activity.
Yet another
piece of the inferential puzzle is added by noting that the Company took action
against both employees at the same time.
It will be recalled that this is unusual since, in a typical year, this
employer would terminate between one and three employees for disciplinary
reasons. Added to the rarity of a
multiple termination is the striking fact that the employees chosen for termination
happen to be the same employees who were in a position to be overheard giving
favorable consideration to union organizing activity. As the Board has noted, a “discriminatory
discharge of one worker [is] a factor to consider in weighing whether the
contemporaneous discharge of a second coworker, who engaged at the same time in
the same prounion activity, was discriminatory.” Yellow
I find convincing
proof of employer knowledge of union activity from the direct evidence of Miers’
statement to Fosnight coupled with the circumstantial evidence showing that the
men could readily have been overheard discussing the matter, the ease of the
dissemination of knowledge in a small facility, the timing of the terminations,
the abruptness with which the terminations were accomplished, and the fact that
the only employees who were considering union involvement were the ones selected
for simultaneous termination.
Beyond all this,
there remains an equally powerful inferential factor, the pretextual nature of
the employer’s purported rationales for the adverse employment decisions. The Board holds that “the pretextual nature
of the Respondent’s reasons for [an employee’s] discharge supports an inference
that the Respondent had both knowledge of [the employee’s] protected activity
and animus towards that activity.” State Plaza, Inc., 347 NLRB No. 70, slip
op. at 3 (2006). (Citation omitted.) Because the issue of pretext is also highly
probative on the issue of antiunion motivation, I will defer detailed discussion
of it to that portion of the Wright Line
analysis. Suffice it to say that my
finding of pretext is an additional substantial element in my conclusion that
the employer knew of the protected union activity by Fosnight and Hensley.
The next step in
the Wright Line process is perhaps
the simplest, a determination as to whether the employees were subject to an
adverse action by their employer. In
this case, Fosnight and Hensley were given the ultimate employment sanction,
the termination of their means of earning a living.
Having found
that Fosnight and Hensley engaged in protected union activity, that the
management of the Company was aware of their participation in that activity,
and that the Company took adverse action against the men, it remains to determine
whether there is a motivational link between the knowledge of union activity
and the subsequent discharges. The starting
point for this evaluation is the documentary record prepared by the official
who conveyed the decision for termination to the affected employees.
It is
uncontroverted that, at the time of their discharges, neither employee was
given any verbal explanation of the reason for the adverse actions. In addition, I credit their testimony that
they never received any written documentation of the terminations.[15] In contradictory fashion, Wells first testified
that he prepared such reports, “[r]ight after they walked out the door.” (Tr. 108.)
Later, he conceded that he wrote the reports on the following
morning. Significantly, he also
testified that those reports were “intended as an internal document.” (Tr. 108.)
I credit this explanation for the purpose of these reports because it is
consistent with the fact that they were never issued to the employees. Thus, they were not intended to serve as an
explanation to those employees for the action taken against them. Rather, they must have been designed as a
record of the personnel action created for the purpose of explaining that
action to others with a legitimate interest in comprehending the reasons for
the firings.
Wells prepared
these two documents using the Company’s preprinted form entitled, “termination
report.” That form requires the preparer
to circle one of three possible reasons for an employee’s departure from
employment: “quit,” “insubordination,”
or “reduction in force.” (GC Exhs. 3 and
5.) It also requires the supervisor to
rate the employee on a grading scale ranging from excellent to
unsatisfactory. The rating categories
are for attendance, cooperation, initiative, job knowledge, and quality of
work. The form also permits the
evaluator to provide customized details in a space set aside for that
purpose. Finally, the preparer of the
form must circle a recommendation regarding the desirability of rehiring the
affected employee.
Fosnight’s form
shows that he was terminated from his position as a lead electrician in the
residential department due to a “reduction in force.” (GC Exh. 3, p. 1.) The form’s evaluation shows that Fosnight’s
attendance was good and his job knowledge and quality of work were
satisfactory. His initiative was
described as fair, while his cooperation was characterized as
unsatisfactory. In the written remarks,
Fosnight’s attitude was deemed, “bad.”
Two examples were cited, a claim that he was the last person to arrive
at work every morning and a notation that he “did not want to do night duty (on
call).” (GC Exh. 3, p. 1.) It was also recommended that Fosnight not be
considered for rehire.
Hensley’s
termination report indicated that he was terminated from his position as a
helper in the residential department due to a “reduction in force.” (GC Exh. 5.)
His evaluation grades were fair in all categories with the exception of
an unsatisfactory rating in attendance.
No explanatory details were provided, but it was recommended that he not
be considered for rehire.
The documentary
record created on the day after the terminations indicates that Fosnight was
terminated as part of a reduction in force.
Apparently, he was selected for layoff due to a bad attitude. Hensley’s termination was also due to a reduction
in force and it would appear that he was selected due to unsatisfactory attendance.[16]
An important
part of the motivational analysis involves an examination as to whether the
Company’s officials have been consistent in their depiction of their reasoning
supporting the termination decisions. As
the Board has observed, any lack of consistency is important because, “[i]t is
well established that shifting of defenses weakens the employer’s case, because
it raises the inference that the employer is ‘grasping for reasons’ to justify
an unlawful discharge.” Meaden Screw Products, 336 NLRB 298, 302
(2001).
Both Frye and
Wells were carefully examined as to the reasons for terminating their
employees. Regarding Fosnight, Frye
cited several justifications during his examination by counsel for the General
Counsel. The first proferred reason was
the existence of complaints from several other employees regarding Fosnight’s “bad
attitude.” (Tr. 43.) Specifically, Frye indicated that employees
complained that Fosnight was “on the phone most—80% of the time instead of
working, just bad work ethics.” (Tr.
43.) Frye added, “I think he had some
absenteeism problems. Some tardiness
problems, I believe.” (Tr. 48.) Counsel for the General Counsel pressed Frye
to ascertain if there were any other reasons for Fosnight’s termination. Frye’s answer simply reiterated concerns
about attitude and attendance. Only
after being shown the termination report did Frye make mention that Fosnight “did
not want to do night duty.” (Tr.
50.)
Naturally, Wells
was also examined regarding the reasons for Fosnight’s discharge. He cited Fosnight’s bad attitude, refusal to
take on-call duty, and tardiness. When
asked to describe Fosnight’s attitude, Wells testified that it was, “[p]oor. He had a lot of things going on
personally. Staying on his cell phone
all day. Productivity. Workmanship . . . Quality of work.” (Tr. 84.)
In assessing the
employer’s asserted reasons for terminating Fosnight, I have considered the
termination report in conjunction with the testimony from Frye and Wells. At the outset, it is noteworthy that the
primary factor cited by all three sources was Fosnight’s attitude and unsatisfactory
rating in the area of cooperation. While
this is a consistent explanation for his termination, it is a highly troublesome
one. In James Julian, Inc. of Delaware, 325 NLRB 1109 (1998), it was noted
that “[t]he Board has repeatedly found, with court approval, that, in a labor-relations
context, company complaints about a ‘bad attitude’ are often euphemisms for
prounion sentiments.” [Citations
omitted.] Very recently, the Board
reiterated that “[i]t is well settled that an employer’s reference to an
employee’s ‘attitude’ can be a disguised reference to the employee’s protected
concerted activity.” Rock Valley Trucking Co., 350 NLRB No.
10 at fn. 6 (2007). (Citation omitted.)
I recognize that
a supervisor’s complaint that a worker possesses a bad attitude is not
invariably a disguised reference to union activity. Instead, when attitude is flagged as the key
justification for an adverse action, it is important to consider all of the
circumstances. In this case, I find that
those circumstances support the inference that the attitude problems refer in
substantial part to protected activity.
It will be recalled that the Company chose to rehire Fosnight and promised
him that he would not be required to perform on-call duty. During his period of reemployment, he had no
record of disciplinary action in his personnel file. This strongly suggests that his work ethic
was deemed satisfactory.[17] The termination report’s evaluation showed
acceptable ratings in every area except the one related to attitude. If Fosnight’s supposedly bad attitude did not
manifest itself in unacceptable attendance, initiative, or job quality, it
would appear more likely to be related to protected activity. The suspicious nature of the reliance on Fosnight’s
attitude was underscored by Wells’ choice of language in elaborating on this
question. When asked why Fosnight was
fired, he reported that “[b]asically, his attitude was carrying over to the
other guys . . . Morale. Bringing morale
down.” (Tr. 81.) This is a classic formulation for raising
grave concern regarding an unlawful motivation for Fosnight’s discharge.[18]
The primary
alleged reason for Fosnight’s discharge was consistently asserted, but fatally
linked to protected activity. The
secondary reasons were not consistently articulated and are not credible. His supposedly excessive use of the cell
phone was not cited in the written description intended to explain his
discharge. Furthermore, the claim that
he spent 80 percent of his time talking on his phone is clearly inconsistent
with his evaluation showing good attendance and satisfactory quality of
work. Even more striking was the
reliance by Wells and Frye on claims that Fosnight exhibited poor attendance,
including frequent tardiness. Such a
contention is completely belied by Fosnight’s rating of “Good” in the area of
attendance. Indeed, his job evaluation
shows that attendance was his strongest suit.
Similarly, any contention that poor workmanship was a factor in his
dismissal is fatally undermined by his earlier unsolicited offer of
reemployment and his “satisfactory” rating on this aspect of his employment
evaluation in the termination report.
Finally, I
reject any claim that Fosnight was fired for refusing to perform on-call
duty. I credit the evidence demonstrating
that he never refused this change in his conditions of employment. While his unhappiness about this
newly-imposed requirement prompted his protected activity, it did not lead him
to engage in any act of insubordination.
His hasty termination was effectuated long before his first scheduled
on-call duty in late March.
In sum, I
conclude that the only consistent rationale offered for Fosnight’s discharge
was his bad attitude. Considering all of
the circumstances, I find that what was meant by this was Fosnight’s
involvement in protected concerted activities.
The other proferred justifications are makeweights that are fatally undermined
by the job evaluation report prepared by Wells on the morning after the
termination. Indeed, that evaluation and
the written comments that supplement it make it very clear that Fosnight was
discharged solely due to his poor attitude, a reason that in this case was
based on an unlawful motivation.
The situation is
similar regarding Hensley. His job evaluation
showed an unsatisfactory rating in only one area, attendance. In striking contrast, when Frye was asked why
Hensley was fired, he cited a multitude of reasons that did not include
attendance. The testimony went as
follows:
Counsel: Do you know or can you explain to me the reasons for Mr. Hensley’s discharge?
Frye: The only thing I heard is that, afterwards, and I talked to some of our lead electricians afterwards, is the reason Greg [Wells] let him go is because of some bad work ethics.
Counsel: What do you mean bad work ethics?
Frye: My employees in the field said that he was lazy. I believe he refused to do a couple of jobs that they asked him to do. The commercial side just said that they couldn’t work with him.
Counsel: So let’s make sure the record is clear. Mr. Hensley was discharged because of his work ethic, his work performance?
Frye: I believe that’s what Greg had told me afterwards.
Counsel: And that entailed what? What was wrong with his work performance?
Frye: Just a lack of attitude on the jobsite and the employees that worked with him said that he just didn’t work, wouldn’t work.
Counsel: And, to the best of your knowledge, those are the reasons he was discharged?
Frye: I believe so. [Tr. 56.]
Wells was also
asked why Hensley was fired. His response
was, “Attendance. Attitude. Insubordination.” (Tr. 90.)
Asked if there was anything else, he responded, “[t]hat’s all that comes
to my mind right now.” (Tr. 90.) When asked for details about the issue of
insubordination, Wells explained that this referred to an incident that
happened a couple of weeks prior to his termination. It consisted of a refusal by Hensley to
comply with his lead electrician’s instruction to get into a crawl space.[19]
I have examined all