Ausable Communications, Inc.

National Labor Relations Board - Board Decisions

Jan 14, 1985

273 N.L.R.B. 1410 (N.L.R.B. 1985)

1410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ausable Communications, Inc. and International
Brotherhood of Electrical Workers, Local
Union #781. Cases 3-CA-10407 and 3-CA-
10677
14 January 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 11 February 1983 Administrative Law Judge
Harold Bernard Jr. issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed cross-excep-
tions.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order
as modified.2
The judge found that the Respondent's subcon-
tracting of installation work orders received in
September 1981, without affording the Union an
opportunity to bargain, violated Section 8(a)(5) of
the Act. We disagree.
The record shows that in September 1981 the
Respondent completed installing a satellite disc that
added eight new channels to the services offered to
customers. As a result the Respondent experienced
an unusually large influx of installation work
orders. Rather than hire more unit employees, the
Respondent decided to subcontract the additional
installation work. Based on our decision in Otis El-
evator Co., 269 NLRB 891 (1984), we find that the
Respondent's decision to handle the increased
workload affected the scope of the business and
1 In adopting the judge's finding that the Respondent knew of employ-
ee union activity, we do not rely on his inference (based on the fact that
most employees attended a union meeting) Inasmuch as the record con-
tains sufficient direct evidence of employer knowledge
In the section of his decision entitled "Promise of Benefits," the judge's
spot-cite to Jamaica Towing is incorrect The correct citation is 236
NLRB 1700, 1700-1701 (1978)
Finally, in adopting the judge's finding that the Respondent, through
Supervisor Art Caron, violated Sec 8(a)(1), we find it unnecessary to
rely on Coach & Equipment Sales Corp, 228 NLRB 440 (1977)
2 The General Counsel excepts to the judge's inadvertent failure to
provide appropriate cease-and-desist language for his finding that the Re-
spondent discriminatorily laid off employees We find merit in the excep-
tion and modify the recommended Order accordingly
We also modify the recommended Order so as to require the Respond-
ent to expunge from its files any reference to the unlawful layoffs of em-
ployees Minnie, Gladue, and Nephew, and to notify them in writing that
this has been done and evidence of the unlawful layoffs will not be used
as a basis for future personnel actions against them See Sterling Sugars,
261 NLRB 472 (1982)
Finally, we modify the recommended Order to make clear that the res-
toration order applies to work discriminatorily subcontracted and does
not require undoing construction work already completed
was not a bargainable item. We therefore dismiss
the 8(a)(5) portion of the complaint.3
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified and set out in full below and
orders that the Respondent, Ausable Communica-
tions, Inc., Plattsburgh, New York, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees that their work will
be subcontracted out and that there would be lay-
offs because of employees' support for the Union.
(b) Promising employees better employment ben-
efits in order to discourage them from supporting
the Union.
(c) Threatening employees with a loss of seniori-
ty, company stock benefits, and other employment
benefits as well as job reclassification because em-
ployees supported the Union.
(d) Informing employees that employees were
laid off for engaging in union activities.
(e) Coercively interrogating employees concern-
ing their union activities.
(f) Creating the impression that employees' union
activities were being kept under surveillance.
(g) Informing employees that the Respondent
would never settle on a contract with the Union.
(h) Subcontracting out construction work in
order to discriminate against employees because of
their activities in support of the Union.
(i) Discriminating against employees by laying
them off for their activities in support of the
Union.
(j) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Make Michael Minnie, David Gladue, and
Thomas Nephew whole for any loss of earnings
they may have suffered by reason of the discrimi-
nation against them in the manner set forth in the
section of the judge's decision entitled "The
Remedy."
(b) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
3 Member Dennis relies on her concurring opinion in Otis in agreeing
with her colleagues that the Respondent did not violate Sec 8(0(5) by
unilaterally subcontracting installation work She would find that the sub-
contracting decision had only "an indirect and attenuated impact on the
employment relationship" and therefore fell within the definition of non-
mandatory Category I decisions 269 NLRB 891
273 NLRB No. 166
AUSABLE COMMUNICATIONS 1411
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(c) Return to the construction work subcontract-
ing policy and practices existing prior to the sub-
contracting action herein found unlawful and re-
store to bargaining unit employees the work discri-
minatorily subcontracted which is uncompleted.
(d) Expunge from company files any reference to
the unlawful layoffs of employees Minnie, Gladue,
and Nephew, and notify them in writing that this
has been done and the evidence of the unlawful
layoffs will not be used as a basis for future person-
nel actions against them.
(e) Post at its Plattsburgh, New York location
copies of the attached notice marked "Appendix."4
Copies of the notice, on forms provided by the Re-
gional Director for Region 3, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
4 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted F'ursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board"
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT create the impression of engaging
in surveillance of the union activities of our em-
ployees.
WE WILL NOT threaten employees with layoffs
for engaging in union activities.
WE WILL NOT inform employees that employees
were laid off for engaging in union activities.
WE WILL NOT interrogate employees concerning
their union activities or sympathies.
WE WILL NOT promise employees improved
medical or dental programs, extra holidays based
on an employee's birthday, or other improvements
in employment benefits in order to discourage sup-
port for International Brotherhood of Electrical
Workers, Local Union #781, or any other labor or-
ganization
WE WILL NOT inform employees that we will
never settle on a contract with the Union.
WE WILL NOT threaten to subcontract work, or
that employees will lose their seniority, stock bene-
fits, or other benefits and that jobs will be reclassi-
fied to discourage employee support for the Union.
WE WILL NOT subcontract our construction
work to discriminate against employees because of
their union activities.
WE WILL NOT discriminate against employees by
laying them off for their activities in support of the
Union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE have already offered reinstatement to Mi-
chael Minnie, David Gladue, and Thomas Nephew
and WE WILL pay them for any loss of pay they
may have suffered by reason of our discrimination
against them, with interest.
WE WILL return to the construction work sub-
contracting policy and practices existing prior to
our unlawful subcontracting of construction work
and restore to bargaining unit employees any such
work discriminatorily subcontracted which is un-
completed.
WE WILL expunge from our files any reference
to the unlawful layoffs of employees Minnie,
Gladue, and Nephew, and notify them in writing
that this has been done and that evidence of the
unlawful layoffs will not be used as a basis for
future personnel actions against them.
AUSABLE COMMUNICATIONS, INC.
DECISION
STATEMENT OF THE CASE
HAROLD BERNARD, JR., Administrative Law Judge.
These consolidated cases were tried before me in Platts-
1412
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
burgh, New York, on March 24 and 25, 1983, pursuant
to complaint allegations that Respondent, inter aha,
promised employees improved benefits, interrogated em-
ployees concerning union activities, created the impres-
sion of surveillance of employee union activities, threat-
ened employees with reprisals, subcontracted construc-
tion work, and laid off employees David Gladue, Mi-
chael Minnie, and Thomas Nephew because of employ-
ees' union activities, thereby discriminating against em-
ployees in violation of Section 8(a)(1) and (3) of the Act.
The complaint further alleges that Respondent unilateral-
ly subcontracted installation work on September 8, 1981,
without notice to the Union, thereby violating Section
8(a)(1) and (5) of the Act. Respondent's duly filed
answer denies all allegations of conduct violating the
Act.
All parties were accorded the opportunity to partici-
pate fully at the hearing, to examine witnesses, to intro-
duce evidence, to present oral argument, and to file
briefs.
On the entire record in this proceeding, including my
observation of the witnesses and briefs filed by counsel, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a New York corporation located in
Plattsburgh, New York, where it is engaged in operating
a cable television system. Respondent annually derives
gross revenues in excess of $1 million in the course of its
business and annually purchases products valued in
excess of $50,000, directly from points outside New
York. As admitted, I find Respondent is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act. Admittedly, the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act,
and I so find.
The Appropriate Bargaining Unit
The parties agree that the following bargaining unit,
for which the Union is the certified bargaining represent-
ative pursuant to certification on October 8, 1981, in
Case 3-RC-8090 is appropriate:
All employees employed by the Employer at its 68
Bridge Street, Plattsburgh, New York facility; ex-
cluding managerial employees, guards and supervi-
sors as defined in the Act
Respondent further admits the supervisory-agency
status under Section 2(11) and (13) of the Act of Manag-
er Charles Malone and Chief "tech" Arthur Cam n as al-
leged in the complaint, supported by the record and, ac-
cordingly, so found.
1 The General Counsel's unopposed motion to correct minor errors in
the transcript is granted
II. THE UNFAIR LABOR PRACTICES
A. Background
The time frame for events is the period beginning in
late summer 1980 and lasting through November 1981
Respondent installs cable television service in several
New York communities where it has secured the fran-
chise to do so, and maintains that service, which com-
prises some 235 miles of cable and 23 channels with a
work force numbering about 14 employees divided into 6
office clericals, 3 outside installers, 2 service technicians,
1 line technician, and 1 installer with a clerk in ware-
house inventory Manager Charles Malone, Chief Tech
Art Caron, and an officer manager comprised the super-
visory echelon at relevant times herein. By the time of
the hearing, in addition, Respondent had moved employ-
ee Ron Depo into an admittedly supervisory position as
line supervisor.
In the fall of 1980, the above employees were not yet
represented, there having been a Board election the pre-
vious June in which a majority cast votes against repre-
sentation
The record demonstrates that in the summer and fall
of 1980 Respondent was engaged in a large amount of
work, renewing franchises, making bids, purchasing new
equipment, including a construction trailer, supplies, and
hiring employees for anticipated stepped-up needs arising
from rebuilding a system in Plattsburgh, and building up
a system in the Cumberland Head project. Both employ-
ees Michael Minnie and David Gladue were informed by
Respondent when hired that there was a "lot of work"
to be done. Respondent's Exhibit 11 clearly indicates that
the workload, in fact, reached new highs in this period,
August through January 1981, as the number of back-
logged customer orders for installations, disconnects, and
service calls mounted
In addition, the record shows that Respondent (which
had, in the past 4 years, performed construction work—
involving digging with its own equipment and the like—
such as setting up and framing poles and laying cable
with its own employees as well as outside contractors)
"formed" a construction crew in January 1981. This
crew, up until the events noted below, engaged in con-
struction work according to undisputed employee testi-
mony, as well as Respondent's own business records 2
B. Employee Union Activity
Following an earlier discussion between service tech
Russell Caron and installer David Gladue 2 weeks before
about getting together to discuss employment matters, all
the shop employees met at Russell Caron's home in early
March, where they discussed the need for help in secur-
ing better pay and benefits and clarification concerning
their job classifications. The employees decided to con-
tact a union representative for such purpose On March
17 a meeting was held pursuant to such decision, at 7
p.m., at the Union's hall on North Beacon Street, attend-
2 In fact, it is instructive to note that Respondent's employees per-
formed in-house construction work in the years 1981, 1979, 1978, and
1977
AUSABLE COMMUNICATIONS 1413
ed by all shop employees except one, four office clerical
employees, and two union repi esentatives. During the
course of the 2-hour-long meeting, there was discussion
concerning the benefits available to employees from
union representation. All the shop employees there
signed cards authorizing the Union to be their represent-
ative for purposes of collective bargaining with the Re-
spondent
C Respondent's Knowledge Concerning Employee
Activities
As shall further appear, there is no question that the
employees' union activity became quickly known to Re-
spondent. The fact that the entire work force—except
one employee—attended the March 17 meeting above
warrants such a conclusion. In addition, the Union sent
Respondent, by letter dated March 24, notice that:
The employees of Ausable Communications, Inc ,
have selected the I.B.E.W as their bargaining rep-
resentative. A petition for recognition will be filed
at the appropriate time.
The letter was received by Respondent on March 25.
Events on the following day, March 26, further sharply
illustrate Respondent's knowledge in this regard.
D. Respondent's Animus
On that day, March 26, employees Michael Minnie,
David Gladue, Russell Caron, and Ron Depo—who later
became an admitted supervisor by the time of this hear-
ing—were working at the North County Shopping
Center when Respondent's chief tech and admitted su-
pervisor Art Caron approached the group while employ-
ees were clearing out rocks and cleaning up the area.
Minnie testified that Art Caron asked, "Who is going to
be your shop steward?" David Gladue testified that,
when no one replied, Caron pressed further with his
questioning and stated, "Come on, we know all about
it." When Minnie professed ignorance, Caron replied
that he and the Company were both aware of all the
union meetings that had been taking place and that he
knew who the ringleader was because an employee who
attended the meeting had handed in a four-page report to
Caron and Malone listing the names of those who attend-
ed the meeting, and describing what had been said and
what had taken place. As an acknowledged supervisor,
and second in command, Caron's knowledge was, in ad-
dition to the other factors showing Respondent had
knowledge of employee union activities, further proof in
such regard. Bartenders Local 19, 240 NLRB 240, 246
(1979), enfd. 636 F.2d 1227 (9th Cir. 1980). Minnie testi-
fied further that Caron turned to Ron Depo and Russell
Caron and said it would hurt them more (than Minnie
and Gladue, only hired recently) because they would
lose their stocks with the Company, their seniority
would be thrown out the window, everyone would be
reclassified, and the construction crew would be done
away with as construction work would be contracted
out. Minnie recalled that Caron stated employees would
lose their benefits and would be working without a con-
tract because the Company would not settle on a con-
tract.
During the 45 minutes involved in the discussion, em-
ployee David Gladue recalls Caron admonishing em-
ployees, stating, "Come on you guys, all you're domg
doing yourselves in," and that Caron continued by
saying, "I've been with this Company for quite a few
years and I know the way they operate—they'll never
settle [a contract] with you. What's going to happen is
that they will lay off people, and they'll reassign your
job position. You'll lose your seniority." When Caron
also stated that Depo and Russell Caron would lose their
stocks and was told by an employee that such stocks
could not be taken away, he stated they would lose their
rights to acquire company stock in the future. Gladue
further corroborates Minnie's account of Caron's refer-
ence to construction work recalling that Art Caron
stated, "Since we were going union, they [the Company]
would probably contract out all the work and get rid of
a few people." Russell Caron testified:
He [Art Caron] told us it was going to be very
rough on us if we tried to go union because the
company was anti-union and he was against the
union himself. Because he said if the union gets in
there's going to be a lot of people going down the
road. Including probably myself And he said it
would include losing stocks for people who had
been there a long time, I didn't have any. So I
didn't have any stocks to lose. But he said they'd
lose stocks, benefits and seniority. And that they
were going to contract the construction out. To
subcontractors.
Although Ron Depo (by the time of the hearing a super-
visor) testified on behalf of the Respondent and was
present during the alleged statements by Art Caron, he
was not questioned by Respondent as to these statements;
nor was Art Caron, Respondent's then second in com-
mand and the person reported to have made the state-
ments called by Respondent to testify. Both factors war-
rant the conclusion that such testimony would not be
contrary to the testimony of Minnie and Gladue, whose
accounts were further corroborated by the testimony
given by Russell Caron at this hearing. Considering such
facts, as well as the credibly tendered and completely
uncontradicted testimony, it is concluded that on March
26, the day after Respondent received the Union's letter
informing it that employees had designated the Union as
their bargaining representative and that a petition for
"recognition [sic]" would be filed, Respondent, through
Art Caron, unlawfully interrogated employees concern-
ing their union activities—(viz, the selection of a shop
steward), unlawfully created the impression that the
union activities of employees were being kept under
close surveillance by Respondent (a conclusion based
upon Caron's reference to a four-page report on employ-
ee activities being in Respondent's hands and that Re-
spondent knew all about the union meetings and what
took place there); and unlawfully threatened employees
with a loss of stock ownership, job reclassification, loss
of seniority and other benefits, subcontracting of con-
1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
struction work, and layoffs and that Respondent would
refuse to bargain in good faith with the Union so that
employees would not be working under a collective-bar-
gaining agreement even if they did select the Union as
bargaining representative. By such conduct, Respondent
violated Section 8(a)(1) of the Act in the described re-
spects. El Rancho Market, 235 NLRB 468, 471 (1978)
(employer told employees he would not sign a contract);
Computer Sciences Corp., 236 NLRB 266 (1978) (employ-
er telling employees he would never negotiate contract
with union); Brodart, Inc , 257 NLRB 380 (1981) (em-
ployer found to have unlawfully created impression of
surveillance by telling employees he knew they were at-
tending union meetings); see also to the same effects, E.
I. du Pont de Nemours & Co., 257 NLRB 139 (1981);
Major Cab Co., 255 NLRB 1383 (1981) (unlawful interro-
gation where employer asked employees whether or not
they had started union activities); Holly Manor Nursing
Home, 235 NLRB 426 (1978) (unlawful interrogation to
question employee as to who was on bargaining commit-
tee); Hendricks County Rural Electric Membership Corp.,
236 NLRB 1616 (1978) (interrogation of employees as to
identity of hardcore union advocates found unlawful);
Jays Foods, 228 NLRB 423 (threat to subcontract if em-
ployees persisted in union activities found unlawful),
Meyer Jewelry Co., 230 NLRB 944 (1977) (threatened loss
of profit-sharing benefits if union came in found unlaw-
ful); Coach & Equipment Sales Corp., 228 NLRB 440
(1977) (foreman's statement to employee friend they
would both be jobless if union won election held unlaw-
ful); and Anchorage Times Publishing Co., 237 NLRB 544,
551 (1978) (threats of layoffs and subcontracting if union
became employees' bargaining representative).
Shortly afterward, placed by employee Gladue as 2 or
3 days later, and on April 1 by Minnie, Art Caron told
employees coming in from work that two or three em-
ployees would be laid off, again stating that all construc-
tion work was going to be contracted out. Gladue testi-
fied without contradiction that Caron gave as the reason,
"Since you guys petitioned for a union there's going to
be a layoff."
E. The Layoffs
On April 3 Minnie and Gladue returned to the shop
for lunch and were told to report to Manager Malone's
office at 3 p.m. They had been told earlier that morning
by Art Caron that there was no longer a construction
crew and that construction work was being contracted
out Wanting to know more about why Malone wanted
to see him, Minnie went to Art Caron and asked whether
there was, in fact, to be a layoff. Caron told Minnie that
when Miami (Respondent's home office is located in
Miami) heard about the union talk and the union meet-
ings, they wanted to fire his brother Russell Caron be-
cause he was the ringleader. Caron continued, according
to Minnie, by saying, inter aim that "[he] said that at one
time they were thinking about firing the whole construc-
tion crew" which consisted of Minnie, Gladue, Russell
Caron, and Ron Depo.
In any event, when Gladue and Minnie reported to
Malone, they were informed that they were laid off due
to lack of work. Employee Thomas Nephew was also
laid off that same afternoon and was given the reason
that construction work was going to be "farmed out."
As Nephew was cleaning out his truck and securing his
personal belongings, Art Caron approached him and
said:
I told everybody a long time ago, he said, not to
start organizing a union this early. Simply because
there were going to be people who would get hurt
by it. Certain people are going to go down the
road. Don't feel too bad [he said] I'll probably be
the next one Along with a few others.
Based upon the foregoing, it is found that on April 1
Respondent, through Art Caron, further threatened em-
ployees with layoff due to their union activities, and that,
on April 3, Respondent, through Caron, attributed the
cause of employee layoffs in a conversation with
Nephew to their union activities, in further violation of
Section 8(a)(1) of the Act. Home Lumber & Supply Co,
237 NLRB 322, 325 (1978).
F. The Alleged Cause for Layoffs
Respondent alleges that the layoffs of Gladue, Minnie,
and Nephew were caused by a long-established company
policy against performing construction work with its
own employees and that it did not learn about Arthur
Caron's construction crew doing such work until March
31 at which time, during a conversation with the compa-
ny vice president, Malone testified, "[lit came out
through me or Arthur Caron that I had some employees
on payroll doing some construction work." Later, on
April 3, during a conference telephone call with Miami
officials, Malone testified the decision was made to let
three of the least senior employees go as a result of the
policy-dictated decision to cease construction work with
company employees and subcontract it out.
Analysis Concerning the Layoffs
Respondent's defense for laying off the three employ-
ees is not supported by the record To begin with,
Malone testified he did not know Art Caron's crew was
doing construction work prior to March 31, but he also
testified that during the meeting with the company vice
president on March 31, it came out for the first time
either through him or Art Caron that such work was
being done The only way it could have come out
through either Malone or Caron that such was happening
is if Malone did know about it beforehand. In addition,
there is abundant evidence in this record tending to es-
tablish that Malone knew construction work was, in fact,
being done. As first in command of overall operations, it
is reasonable to infer Malone knew what work was being
performed In fact, under examination, Malone admitted
that his supervisors informed him concerning the work
being done. Malone's duties, according to his own testi-
mony, included overseeing the billing for work per-
formed by all employees and this would have included
billing for the construction work being performed by Re-
spondent in the Cumberland Head project. In addition,
there is undefiled employee testimony in the record that
AUSABLE COMMUNICATIONS 1415
Malone gave employees Instruction on using the con-
struction trailer while employees were loading cable
prior to leaving for work at the Cumberland Head
project, which job involved, as well known, construction
work. It is readily apparent that Respondent knew that
construction work was being performed all along. The
only reason it advanced so frivolous a basis for the lay-
offs, as described above, on the heels of employee union
activities was to cloak the only basis appearing in the
record for such action and that is to discourage employ-
ees from supporting the Union. Moreover, Respondent
failed to explain why such precipitous action as immedi-
ate layoffs was warranted against satisfactory workers
who could have remained on call that weekend, and
beyond, to complete what the record shows was at least
enough work to warrant retention beyond April 3. It is
well established that unsupported reasons for employee
terminations under such circumstances, including em-
ployee union activity, employer knowledge, and union
animus, especially when coupled with clear violations of
employee rights guaranteed under Section 7 of the Act,
all occurring at the advent of employee efforts to seek
union representation, provide the basis to infer an unlaw-
ful motive under the Act C & D Transfer, 258 NLRB
586 (1981); Burk Bros. v. NLRB, 117 F.2d 686, 687 (3d
Cir. 1941), A. J. Krajewski Mfg. Co. v. NLRB, 413 F.2d
673, 675-676 (1st Cir. 1969); and Shattuck Denn Mining
Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966). Fur-
thermore, it follows from the foregoing that, in order to
carry out the unlawfully designed layoffs, Respondent,
the record shows, subcontracted the construction work
formerly performed by its employees to other companies,
as treated further below
Respondent's motives for subcontracting the construc-
tion work and laying off three employees are further
confirmed by the testimony credibly offered by employ-
ees at this hearing, who uniform] y described the repeated
threats communicated to them by Respondent's second
in command, Arthur Caron, that Respondent intended to
subcontract the work involved and lay off employees be-
cause employees had filed a petition seeking union repre-
sentation. Caron was in overall charge of all outside
work and there can be no doubt that, when Caron in-
formed Nephew after the layoffs that his earlier predic-
tions of layoffs had come true, any question concerning
Respondent's proven motive for the layoffs was put to
rest.
Respondent, during the course of this proceeding, and
in brief, suggested that Arthur Caron actually favored the
Union and, further, Implied that the testimony of Gladue,
Minnie, and Nephew bore the taint of self-interest attrib-
utable to alleged discriminatees in Board proceedings so
that their testimony, as well as the statements attributed
to Arthur Caron, who was discharged by Respondent
following the layoffs, is not reliable. I consider Respond-
ent's contentions wholly without merit because the fact
that a witness is an interested party in litigation standing
alone does not and should not invite disbelief as to such
testimony and, further, because none of these three wit-
nesses displayed any lack of credibility during their testi-
mony on any central issue in this case Regarding Re-
spondent's contention that Caron was actually in favor of
having a union it must be concluded that, assuming ar-
guendo this to be true he must, it follows, have been re-
flecting Respondent's motives, apart from his own, when
he ascribed the layoffs and subcontracting as Respond-
ent's retaliation for the employees' union activities Ac-
cordingly, were I to conclude—which I do not—that
Respondent had established this unsupported allegation,
it would not lend support to the defense raised in this
case.
Finally, I note that Supervisor Ron Depo, who was
present during the threats made by Arthur Caron and
who was called to testify as a witness for Respondent,
did not testify in contradiction of the accounts rendered
by Nephew, Minnie, and Gladue. For these additional
reasons, as well, i.e., the admissions by Respondent's
second in command as reported by employee witnesses,
and underned by Supervisor Depo, I find that the Gener-
al Counsel has proven by a clear preponderance of the
evidence that Respondent laid off the three employees
and subcontracted the construction work in retaliation
for employees' efforts seeking union representation there-
by discriminating against employees in violation of Sec-
tion 8(a)(3) and (1) of the Act. Valley Oil Co, 210 NLRB
370 (1974); see also Herman Bros. v NLRB, 658 F 2d
201, 210 (3d Cir. 1981), quoting NLRB v. Ferguson, 257
F.2d 88, 89 (5th Cir 1958).
G. Promise of Benefits
The Union filed a representation petition on May 12,
which eventually led to an election being scheduled on
June 18. About 2 weeks beforehand, Respondent's vice
president of personnel Richard Vura, an admitted agent
of Respondent, conducted a meeting of all Respondent's
employees at the company office building, lasting about
2 hours During the meeting, according to the testimony
of employees Kenneth Bashnew and Russell Caron, Vura
told employees that the Company was against unions and
definitely did not want one. He also showed two films to
employees, one concerning the Company's expansion
into new fields, and the other, a film depicting "rough-
house" employee tactics used trying to get a union in a
plant.
According to Russell Caron, Vura told employees he
knew that there were a few problems employees had
with the Company but that he felt "we" could work
them out Vura then stated that the Company was look-
ing into trying to get a better medical benefit plan, a
better dental deductible, and another holiday based on
the employee's birthday Bashnew corroborates Caron's
account, recalling Vura talking about a reduced deducti-
ble or doing away with it as "not really fair" and possi-
bly adding an additional holiday. Vura was not called to
deny the employee accounts or explain why, at the
advent of a pending election, employees were promised
improved employment conditions and new benefits—or
even to deny the complaint allegation that such promises
were unlawfully motivated. Absent any such explanation
or denial, and given the undemed testimony, it is con-
cluded that Respondent announced its intention to im-
prove employment conditions and promised such new
benefits as part of an ongoing pattern of preceding con-
1416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duct herein found unlawful in order to discourage em-
ployee support for the Union in the shortly forthcoming
election, thereby violating Section 8(a)(1) of the Act. Ja-
maica Towing, 236 NLRB 1700, 1705 (1978), and Harvey's
Resort Hotel, 236 NLRB 1670 (1978)
H Unilateral Subcontracting of Installation Work
It is undisputed that between the date of the election,
June 18, and certification of the Union as collective-bar-
gaining representative, on October 8, Respondent sub-
contracted installation work usually performed by bar-
gaining unit employees to other companies in September,
without prior notice to the Union. 3 Although the
Union's official certification as bargaining representative
between June and October was still pending due to elec-
tion results involving the resolution of challenged ballots,
Respondent made such unilateral changes (viz, the sub-
contracting of bargaining unit work) under the legally
established risk that if the Union were to become certi-
fied, such changes would be in violation of Section
8(a)(5) of the Act. Mike 0' Connor Chevrolet Co., 209
NLRB 701, 703 (1974), revd. on other grounds 512 F.2d
684 (8th Cir. 1975). As noted therein:
Such changes have the effect of bypassing, under-
cutting, and undermining the union's status as the
statutory representative of the employees in the
event a certification is issued. To hold otherwise
would allow an employer to box the union in on
future bargaining positions by implementing
changes of policy and practice during the period
when objections or determinative challenges to the
election are pending
It is clear from the record that the installation work
subcontracted out by Respondent was, in the past, per-
formed by unit employees. Moreover, it is plain that unit
employees, had the work not been contracted out, could
have benefited by the increase in such which Respondent
advanced as the necessity behind its decision to subcon-
tract, say, by working overtime at increased pay rates,
the hiring by Respondent of additional unit employees
thereby enhancing the seniority status of present employ-
ees, their employment longevity, and the like, had Re-
spondent fulfilled its duty under law and contacted the
Union beforehand with notice of its intentions. It is,
moreover, quite clear that a mere increase in orders for
installation work—one of Respondent's established serv-
ices—would in no way act to prevent Respondent from
according the Union such notice. Further, even assum-
ing, as argued by Respondent on brief, that an increase
in orders for installations constituted a valid economic
basis for its action, it is well established that subcontract-
ing pursuant to alleged economic reasons but without
notice to the Union and an opportunity to bargain about
the subject nevertheless violates the Act. ACF Indus-
tries, 234 NLRB 1063 (1977); Appalachian Construction,
235 NLRB 685 (1978), Ramos Iron Works, 234 NLRB
3 In view thereof, it is unneccesary to decide whether portions of a
telephone conversation regarding settlement of this matter are admissible
to prove a violation
896 (1978); Equitable Gas Co., 245 NLRB 260 (1979); Pay
'N Save Corp., 210 NLRB 311(1974); and see also Madi-
son South Convalescent Center, 260 NLRB 816 (1982). I
therefore conclude that Respondent violated Section
8(a)(5) and (1) of the Act by unilaterally subcontracting
installation work in September without notice to the
Union.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section II,
above, and found to constitute unfair labor practices in
violation of Section 8(a)(1), (3), and (5) of the Act, oc-
curring in connection with Respondent's business oper-
ations as set forth in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act and is the exclusive certi-
fied collective-bargaining representative of employees in
the appropriate bargaining unit as described above in sec-
tion I within the meaning of the Act
3. By engaging in the conduct described in section II,
above, Respondent engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(1) of
the Act.
4. By subcontracting all construction work and laying
off employees Michael Minnie, David Gladue, and
Thomas Nephew, Respondent violated Section 8(a)(3)
and (1) of the Act.
5. By unilaterally subcontracting installation work, Re-
spondent violated Section 8(a)(5) and (1) of the Act.
THE REMEDY
Having found that Respondent engaged in the unfair
labor practices set forth above, I will recommend that it
be ordered to cease and desist thereform and to take cer-
tain affirmative action designed to effectuate the policies
of the Act.
It having been found that Respondent discriminatorily
laid off employees Minnie, Gladue, and Nephew on
April 3, 1981, but, as conceded by the General Counsel,
that Respondent has already offered them reinstatement,
it shall be recommended that Respondent be ordered to
make them whole for any loss of pay they may have suf-
fered by reason of Respondent's discriminatory actions
by payment to them of a sum equal to that which they
would have normally received as wages from the date of
their termination until Respondent offered them rein-
statement, less any net earnings in the interim. Backpay,
with interest, is to be computed on a quarterly basis in
the manner prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), and Florida Steel Corp., 231 NLRB 651
AUSABLE COMMUNICATIONS 1417
(1977). 4 I will also recommend that Respondent be or-
dered to make available to the Board, on request, payroll
and other records in order to facilitate checking the
amount of backpay due them and other rights they may
be entitled to receive.
Regarding the unlawful subcontracting of construction
work, it shall be recommended that Respondent be or-
dered to return to its former subcontracting policies ex-
isting prior to the discriminatory subcontracting of con-
struction work at which time it unlawfully increased the
amount of such subcontracting to include work previous-
ly performed by unit employees and to resume said oper-
ations and restore to such employees said work. Regard-
4 See generally Isis Plumbing Co, 138 NLRB 716 (1962)
ing the unlawful subcontracting of installation work, it
shall be recommended that Respondent be ordered to re-
store all such work to the unit until it accords the Union
an opportunity to bargain with it over such decision and
its effects and otherwise fulfill its bargaining duties under
Section 8(a)(5) of the Act.5
A broad remedial order will be recommended due to
the serious character and widespread scope in Respond-
ent's unfair labor practices to better assure employees
their rights as guaranteed under Section 7 of the Act.
[Recommended Order omitted from publication.]
5 See American Cyanamid Co, 235 NLRB 1316 (1978), enfd 592 F 2d
356 (7th Or 1979), Pay 'N Save Carp, supra, and Equitable Gas Co,
supra