Consolidated Services

National Labor Relations Board - Board Decisions

Apr 9, 1976

223 N.L.R.B. 845 (N.L.R.B. 1976)

CONSOLIDATED SERVICES
I
Charles Edwin Laffey, d/b/a Consolidated Services
and United Steelworkers of America , AFL-CIO
and Earl E. Risner. Cases 25-CA-7121 and 25-
CA-7121-2
April 9, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
On December 15, 1975, Administrative Law Judge
Ivar H. Peterson issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and Respondent
filed cross-exceptions and a brief answering the Gen-
eral Counsel's exceptions and in support of its cross-
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor- Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge to the
extent consistent herewith.
1. The Administrative Law Judge found, and we
agree, that Respondent violated Section 8(a)(1) of the
Act by threats made during the election campaign.
Thus, the Administrative Law Judge, on the basis of
clear credibility resolutions, found that Respondent
violated Section 8(a)(1) through: (1) Foreman Jones'
statement to employee Heise that Risner was termi-
nated because he was a prime instigator of the
Union, (2) Jones' statement to employees that if the
Union did come in it was likely that their jobs would
be adversely affected, and (3) the statement of
Respondent's owner Charles Laffey at an employee
meeting that Respondent's operations would be ad-
versely affected if the Union came in. We do not,
however, predicate any 8(a)(1) finding upon other al-
leged comments and threats not specifically credited
by the Administrative Law Judge.
2. The complaint alleges that on February 21 and
March 24, 1975, Respondent laid off employees in
violation of Section 8(a)(3) and (1) of the Act. The
Administrative Law Judge found, and we agree, that
'Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board 's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all the relevant evidence convinces us that
the resolutions are incorrect . Standard Dry Wall Products, Inc., 91 NLRB
544( 1950), enfd . 188 F.2d 362 (C.A. 3, 1951). We have carefully examined
the record and find no basis for reversing his findings.
845
the layoffs were not violative of the Act. In addition
to the factors cited by the Administrative. Law Judge,
which primarily relate to the March 24 layoffs, rec-
ord evidence amply supports his conclusion that nei-
ther the February 21 or the March 24 layoffs violated
the Act.
As early as December 1974, Respondent's owner,
Charles Laffey, spoke with William Shirley, manager
of engineering for Apex International Alloys, Inc., a
company which accounts for approximately 95 per-
cent of Respondent's business, about the economic
conditions of Apex's business. Shirley indicated that
business had begun to decline, that its plans for ex-
pansion had been delayed, and that Apex might re-
duce the work it provided Respondent. Similar con-
versations continued at intervals through March 24,
1976. In one such discussion, Shirley suggested that
Laffey might want to lay off some employees or, at
least, attempt to line up other sources of work in view
of the probable reduction in work from Apex. In
mid-February 1975 Laffey received a letter dated
February 12 in which Shirley indicated that there
would be a substantial reduction in Apex work allo-
cated to Respondent and that, in the future, Apex's
work would be awarded increasingly on a competi-
tive bid basis. This new work allocation procedure
placed Respondent at a competitive disadvantage be-
cause of high shipping costs due to Respondent's dis-
tance from the Apex projects. Following receipt of
this letter, Laffey met with his employees to explain
the situation and to warn of pending layoffs. He in-
formed them that the layoffs would be made accord-
ing to seniority, but requested that employees with
no family obligations volunteer for early layoff. Sev-
en employees were laid off on February 21.
On the basis of the above, we find that the record
supports Laffey's explanation for the February 21
layoffs. We further find that those layoffs were
prompted by the already diminished amount of Apex
work Respondent received, as well as the anticipa-
tion of even further reductions in the future. Accord-
ingly, we affirm the Administrative Law Judge's con-
clusion that the February 21 and March 24 layoffs
were not discriminatory.
3. The Administrative Law Judge concluded that
Respondent's termination of Earl Risner was not a
violation of the Act. We do not agree. The Adminis-
trative Law Judge credits employee Gregory Heise's
testimony that Foreman Jones said, in reference to
Risner's termination, that Respondent "fired your
buddy . . . because he was head of the Union and a
troublemaker." In light of this credited testimony, we
find that Risner's discharge was motivated, at least in
part, by his exercise of Section 7 rights. It is well
established that a discharge motivated in part by an
223 NLRB No. 126
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee's exercise of Section 7 rights is a violation
of the Act even though another valid cause may also
be present.' Accordingly, we find that Respondent's
discharge of Risner violated Section 8(a)(3) and (1)
of the Act .3
Since we have found that Respondent discrimina-
torily discharged employee Risner because of his
union activities, we will order Respondent to offer
him full reinstatement to his former job or, if it does
not exist, to a substantially equivalent job, without
prejudice to his seniority or other rights and privi-
leges , with backpay computed on a quarterly basis
plus interest at 6 percent per annum as described in
F. W. Woolworth Company, 90 NLRB 289 (1950),
and Isis Plumbing & Heating Co., 138 NLRB 716
(1962), from the date of discharge to the date of a
proper offer of reinstatement.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that Respondent Charles
Edwin Laffey, d/b/a Consolidated Services, Knox,
Indiana, his agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Threatening or questioning its employees con-
cerning their concerted or union activity.
(b) Discharging or otherwise discriminating
against any employee for supporting the United
Steelworkers of America, AFL-CIO, or any other la-
bor organization.
(c) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following action necessary to effectu-
ate the policies of the Act:
(a) Offer Earl E. Risner immediate and full rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privi-
leges, and make him whole for his lost earnings in the
manner set forth in the Remedy.
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Post at its offices and place of business in
Knox, Indiana, copies of the attached notice marked
"Appendix .114 Copies of said notice, on forms pro-
vided by the Regional Director for Region 25, after
being duly signed by Respondent's representative,
shall be posted by Respondent immediately upon re-
ceipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director for Region 25, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
IT IS FURTHER ORDERED that the complaint be, and
it hereby is, dismissed insofar as it alleges violations
of the Act not specifically found.
2 Broyhill Company, 210 NLRB 288 (1974).
7 We are not, of course, finding that Respondent was prohibited from
discharging Risner for violating company rules, excessive absenteeism, or
poor work performance . We are , instead , merely finding that Risner 's termi-
nation was motivated in part by his union activities and was thus unlawful.
4In the event that 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 National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten employees concerning
their concerted or union activity.
WE WILL NOT discharge or otherwise discrimi-
nate against any employee for supporting the
United Steelworkers of America, AFL-CIO, or
any other labor organization.
WE WILL offer full reinstatement to Earl Ris-
ner to his former job or, if that job no longer
exists, to a substantially equivalent one, without
prejudice to his seniority or other rights and
privileges, with backpay plus 6-percent interest.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights under Section 7 of the
Act.
CHARLES EDWIN LAFFEY, d/b/a
CONSOLIDATED SERVICES
DECISION
STATEMENT OF THE CASE
IVAR H. PETERSON, Administrative Law Judge: The hear-
ing in this case was held in Knox, Indiana, on September
24 and 25, 1975, upon a complaint issued by the Acting
CONSOLIDATED SERVICES
Regional Director for Region 25 on July 22, subsequently
amended , based on charges filed by United Steelworkers of
America , AFL-CIO, herein called the Union , in Case 25-
CA-7121, on June 3 , subsequently amended on July 17,
and the charge filed in Case 25-CA-7121-2, by Earl E.
Risner , on June 18 , alleging that Charles Edwin Laffey,
d/b/a Consolidated Services , herein called the Respon-
dent , on various dates commencing on December 3 and
continuing to date , had interfered with , restrained, and
coerced its employees by warning them in February that
the plant would be closed and falsely asserting that the
Respondent's principal. customer would cancel its orders if
a union came in or if they did not refrain from becoming
or remaining members of the Union or giving it any assis-
tance or support ;' on about 'February 15, telling its employ-
ees that the Respondent had discharged employees because
they had assisted the Union ; on about February 13, by its
supervisor , James M. Jones , threatening employees with
discharge or other reprisals if they became or remained
members of the Union or assisted it; discharging Earl Ris-
ner on February 14 and laying off 7 employees on Febru-
ary 21 and on or about March 24 some 12 employees, and
has since refused to recall any of these employees to their
former or substantially equivalent positions , except that,
on or 'about June 9 , the Respondent did recall 2 employees,
William Spicer and Paul Berndt ; that the Respondent by
engaging in the foregoing conduct , because the employees
had engaged in protected concerted activity, sought to ob-
viate the results of a Board election and destroy the
Union's majority status.
The complaint further alleged that all production and
maintenance employees of the Respondent , including
truckdrivers , but excluding all office clerical employees,
professional employees , guards and supervisors as defined
in the Act , constitute a unit appropriate for the purpose of
collective bargaining within the meaning of Section 9(b) of
the Act , and that , on or about March 24 , a majority of the
employees in the foregoing unit, in a secret ballot election
conducted under the supervision of the Regional Director
for Region 25, designated the Union as their exclusive rep-
resentative for the purposes of collective bargaining, and
that , on or about April 1, the Union was certified as such
representative ; that at all times since March 24 and contin-
uing thereafter , the Union has been the exclusive represen-
tative of the employees in the foregoing unit within the
meaning of Section 9 (a) of the Act ; and that , commencing
on or about February 7, and continuing to date , the Union
requested the Respondent to bargain collectively with it
and that the Respondent refused to bargain collectively
with the Union by engaging in the conduct previously set
forth, in order to render bargaining with the Union futile
and impossible . By the foregoing conduct , it is alleged that
the Respondent violated Section 8(a)(5), (3 ), and (1) of the
Act.
In its answer , dated July 31, the Respondent admitted
certain allegations , including the allegations concerning the
termination of Risner and the layoff of other named em-
ployees on February 21 and March 24; however , it denied
that it had engaged in any unfair labor practices . Further,
the Respondent admitted the appropriateness of the unit
and the Union 's majority status therein , and that the
847
Union requested the Respondent to bargain collectively on
or about February 7; however, the Respondent denied the
remaining allegations.
Upon the entire record in the case, and after considering
the briefs filed with me by counsel for the General Counsel
and counsel for the Respondent, on October 30, I make the
following:
FINDINGS OF FACT
1. JURISDICTION
The Respondent is an individual proprietorship, doing
business under the trade name of Consolidated Services,
and at all times has maintained its principal office and
place of business at Knox, Indiana, where it is engaged in
industrial fabrication and machine repair and the manu-
facture of rotary dryers. The Respondent admits that it is
engaged in commerce within the meaning of the Act and
comes within the Board 's jurisdictional standards . It is also
admitted that the Union is a labor organization within the
meaning of Section 2(5) of the Act. There is no controversy
that Laffey and his wife are the owners of the business, and
that Jones is a foreman.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Layoffs
The record establishes that the Respondent's principal
customer, Apex International Alloys, Inc., accounted for
approximately 95 percent of the Respondent's business.
William Shirley, the manager of engineering for Apex, and
Anthony Rainaldi, the project engineer of the Apex Divi-
sion, testified that the Respondent's action in laying off
employees was occasioned by a cutback in the business of
Apex that occurred early in 1975.
Laffey testified that beginning about the middle of De-
cember he had had telephone conversations with Apex rep-
resentatives which "led me to believe that I was going to
have to have a layoff...." Under date of February 12,
Shirley wrote to Laffey stating that "changes in the expan-
sion program of Apex International Alloys, Inc. will result
in a substantial reduction of work allocated to Consolidat-
ed Services. No further Apex work shall be done on over-
time, unless specifically directed and approved by the writ-
er." During his conversations with Shirley in January, the
latter "kept exclaiming about how sales kept going down
and down and down and that the board of Apex was start-
ing to get nervous about expenditures as far as building
new plants that they had in the market," and that Shirley
indicated "it would be a good idea" for Laffey "to start
looking for work elsewhere." In this connection, Shirley
suggested to Laffey, as he testified, that unless he could get
work elsewhere "maybe I would want to let some of my
men go as far as Apex was concerned"; Laffey told Shirley
that he did not want to let the men go at that time inas-
much as "The men had petitioned for a union and that I
was afraid it was going to cause a problem with the men
and with Apex as far as me laying men off right directly"
after he had received a letter from the Union.
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to the March layoff, Rainaldi testified that,
during the morning of March 24, he had attended a meet-
ing at Apex headquarters which lasted until late morning
or early afternoon. Shortly after the meeting ended, Rain-
aldi telephoned Laffey and told him that he had just met
with officials of Apex and had been given orders to curtail
a California project on which Laffey was then doing some
work. Rainaldi told Laffey that he had been instructed to
stop all purchase orders and all work in progress. In view
of the Board election that had just been completed, Laffey
told Rainaldi that his timing was "poor" and asked Rainal-
di to send him a letter confirming their conversation be-
cause he felt he would have "union problems." Rainaldi,
under date of March 24, wrote to the Respondent advising
that "all work presently in process by Consolidated Serv-
ices for Apex International Alloys, Inc. will be temporarily
• ceased . No billing will be accepted nor payments made for
work after March 24, 1975." He expressed the hope that
the stoppage of work would "only last for two weeks," and
said that he would keep Laffey informed by telephone of
work being released and would confirm such advice in
writing. After receiving the telephone call from Apex, Laf-
fey informed his employees and, in an effort "to soften the
blow as much as I could," told them that they could work
a few more hours the following day in order to give them
"a chance to adjust to the situation." Rainaldi also testified
that the Respondent was not the only metal fabrication
firm affected by the decision of Apex, and that another
concern in Knox did not receive any more work from Apex
from March to June.
It is undisputed that when Rainaldi received instructions
to go ahead with the California project, on a reduced basis,
he contacted Laffey who in fact submitted bids on addi-
tional jobs and received some work, with the result that
about five employees were recalled from layoff. The only
inquiry Rainaldi made about the Union was during June
or July when, after having been interviewed by a Board
agent and after work had again been awarded to the Re-
spondent, he inquired of Laffey if he had "straightened
out" the union negotiations and whether the schedules of
Apex would be affected. Laffey told Rainaldi that there
would be no problem and that he "probably could contin-
ue just as he had expected to."
There is no controversy concerning the fact that Laffey
had received the February 12 letter from Shirley before he
spoke to meetings of employees and to them on an individ-
ual basis; indeed, Laffey posted the letter on the employ-
ees' bulletin board. In his brief, counsel for the Respondent
argues that it "would make no real business sense or even
common sense for Laffey to threaten layoffs because Apex
would cut back its business, when in fact Apex had already
advised Laffey that business was being cut back. More-
over, it does not logically follow that Laffey would inten-
tionally cut off his business with Apex and ruin his busi-
ness just to retaliate against the Union."
Counsel for the General Counsel produced witnesses
who testified concerning what was said by Laffey at the
two employee meetings. Gregory Heise, who went to work
for the Respondent in July 1974 as a welder, and who
signed a union card on February 4, testified that on ap-
proximately February 21, just prior to his layoff, at an em-
ployee meeting, Laffey "showed us some papers that were
sent to him by William Shirley and he passed it around. He
told us that he would have to cut down the work force
.." During the course of that meeting, so Heise testi-
fied, Laffey "said we didn't need a union, that we could
come and talk to him all the time and that, that's about all
I recall." At a meeting approximately a week earlier, ac-
cording to Heise, Laffey "told us that William Shirley
wouldn't give us any work if the Union came in, that he
would have to close his doors down because Mr. Shirley
gave him 97 percent of his work and there would be no
work left," and that Laffey further stated that he did not
care if the Union came in. Heise also stated that a day or
two before Risner was terminated he was present during a
conversation among Jerry Smalley, Jones, and Risner, dur-
ing which Smalley and Jones were engaged in an argument
and Jones "made a statement that the union wouldn't help
with that kind of work and he accused Jerry Smalley of
being a ringleader for the union"; at that point Risner
"stepped in and said that Jerry was not the one that started
the union, he was the one." The next working day after
Risner was terminated Jones told Heise, according to the
latter, that the Respondent "fired your buddy because he
was not an electrician and because he was head of the
union and a troublemaker."
Gene Patrick, who was hired by the Respondent in Sep-
tember 1974 as a forklift truckdriver and who signed a
union card on February 5 at the solicitation of Risner, tes-
tified that at a group meeting before he was laid off Laffey
"recognized that we had filed for a union and he said he
didn't think that the union would help us that much, that
we usually go along, brought all our problems to him be-
fore and he didn't see why we couldn't do it again." He
further related that between the time he signed a union
card and his layoff he and a fellow employee, William An-
derson, were in Laffey's office during lunch and that Laf-
fey stated that if the Union came in "Apex would cut their
work and the union would close him up, shut him down."
Patrick stated that Laffey did not threaten the employees
with discharge if the Union came in.
Joseph Heet, one of the alleged discriminatees, asked
whether he ever heard Laffey "threaten to fire you or any
other employee" because of the Union, answered in the
negative. Charles Meyers, another alleged discriminatee,
testified that he attended about four meetings held by Laf-
fey and that at the meeting held shortly before the election
Laffey explained that there would be a fair election and
that he "would not or could not discharge or discipline"
anyone for taking part in union activities and further stat-
ed that a union was beneficial in some ways "but he also
stated that he wanted to make sure they knew what they
were doing when they went into it." Asked whether Laffey
threatened any of the employees with respect to the Union,
he answered in the negative.
Edd Pack had worked for the Respondent from July to
September 1974 when he injured his back; he was released
by his doctor on February 17 for light duty. Regarding
returning to work, hesaw Laffey, who told him that he did
not then have any light work and, according to Pack, add-
ed that some employees were attempting to bring in the
Union and, in that connection, so Pack testified, "said if
CONSOLIDATED SERVICES
they brought the union in he would see everybody out in
the street and he didn't give a damn if they starved to
death." Later, when he received a full release, Pack tele-
phoned Laffey about going back to work. Pack related that
Laffey said he was closed down, and that "the union had
come in and he was going to beat it."
Concerning the foregoing conversations with Pack, Laf-
fey stated that he "vaguely" remembered Pack's visit "and
I remember him saying `I hear you are getting a union in.'
And I says, `Yes, I think we are."' Laffey denied that he
said that if the Union came in everyone would be out on
the street or that in the subsequent telephone conversation
there was any mention of the Union.
Laffey testified in some detail concerning the meetings
he had with employees. After he received the letter from
the Regional Office, he spoke to the employees and told
them he wished "to give them my views on a union as far
as its good and bad points. And I proceeded to tell them
that a union could be beneficial in some ways and unbene-
ficial in others." In addition, he advised the employees that
in negotiations with the Union, should it become their rep-
resentative, the benefits they then enjoyed would have to
be negotiated, that they would have to pay union dues, and
might be called out on sympathy strikes and asked to make
strike donations. He testified that he told them, "that I
personally didn't think they needed the union, I had always
tried to get along with them on a personal basis." He also
told them that with the union contract the younger em-
ployees and those inexperienced in welding, burning, and
millright work would probably be placed in classifications
under a union contract and thus he would not be able to
allow a laborer, as he was then doing, to weld or even burn,
since under a union contract if he placed such an employee
on that type of job he would normally have to pay him
union scale for that job, with added expense to him. Laffey
denied having made the statement attributed to him by
Heise to the effect that Shirley had stated that there would
be no work for the Respondent's shop if the Union came
in.
After receiving the letter from Shirley, Laffey held an-
other meeting in which he told the employees that he "had
had verbal conversations, now I had a written letter from
William C. Shirley confirming our previous conversations,
that up until that time I really expected Apex to go on with
their midwest plant and their expansion program in Cali-
fornia." Laffey denied that at that meeting he made a
statement to the effect that Shirley had stated there would
be no work for the Respondent if the Union came in or
that he threatened to close the plant if the Union succeed-
ed.
On the Friday before the election, Laffey again met with
the employees and explained to them that Board agents
would come in to set up the election and that "each man
would have a chance to do his own choosing on a secret
ballot in a closed booth, that each man no matter what had
been told him previous to that has a right to vote the way
he sees fit." He also related that he "told them that in a lot
of ways the union could probably benefit our company a
considerable bit." In addition, he testified that he told the
employees that "it made no difference to me anymore
whether the union was in or not, the only thing, that the
849
demands of the union have to be reasonable, otherwise
there was no way I could afford it, the shop would be
forced into bankruptcy in a matter of time." Laffey stated
that after receiving the call from Rainaldi he called the
employees together and "told them I had got the call from
Tony Rainaldi that as of that day all work was stopped on
the California project which happened to be the only thing
we had in the shop at that time." He also told the men that
they could come in the following day and work a few hours
or the whole day if they wished.
A few weeks after the last meeting with the employees, a
meeting was set up with Tobin of the Union, but the latter
canceled it. Thereafter, Laffey and his wife made several
attempts to reach Tobin; then, on June 23, the Respondent
wrote to Tobin requesting a meeting. However, inasmuch
as this meeting was arranged for the Monday of the hear-
ing, the Respondent canceled it on advice of counsel.
B. The Termination of Risner
Risner went to work for the Respondent some 2 months
before he was terminated on February 14. Counsel for the
General Counsel, in his brief, argues that Risner was "the
one employee who was instrumental in getting the union
campaign underway," made the first contact with the
Union, passed out union authorization cards, and held
union meetings in his home. He further points out that
Laffey admittedly was fully aware of Risner's activities on
behalf of the Union when he terminated him. He further
asserts that, by reason of the acts of the Respondent previ-
ously discussed, the Respondent was "vigorously opposed
[to] the unionization of its employees" and, when in a day
or two after Risner had put Jones on notice that it was he
and not Smalley who had organized the Union, that Re-
spondent terminated him. Counsel for the General Counsel
also notes that while Laffey told Risner that he was laid
off, subsequently, "in a vain attempt to support its actions
with regard to Risner, the Respondent has come up with all
kinds of `reasons' to fire Risner." In this respect I note that
the Regional Office was first advised that Risner was ter-
minated for unsatisfactory work. However, at the hearing,
the work of Risner as an electrician and welder was cited
as being unsatisfactory and, in addition, Laffey took the
position that Risner's attendance and failures to call in
when he was going to be absent were also contributing
factors in his termination. Counsel for the General Counsel
asserts that Laffey admitted that Risner's record with re-
spect to absences was really no worse than that of other
employees and better than some who were not terminated
or disciplined. With respect to Risner's alleged unsatisfac-
tory work as an electrician and welder, and his taking off
work to visit a bar, an incident which counsel states was
"fully explained" by Risner, had occurred long before Feb-
ruary 14. In consequence, Government counsel argues that,
if the Respondent really had good reasons for terminating
Risner, it would have done so considerably before Febru-
ary 14. Moreover, he notes that Risner was never warned
about his allegedly unsatisfactory work performance
which, he states "would indicate that his work was in fact
acceptable." Counsel further argues that, on the other
hand, "the timing of the discharge, occurring one or two
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
days after Supervisor Jones heard right from Risner's own
mouth that he was the one who instigated the Union cam-
paign," demonstrates that it was Risner's union activity
and not "anything relating to his work, that was responsi-
ble for his being fired." Finally, counsel states that Super-
visor Jones "admitted to employee Heise that they had in
fact fired Risner because of his Union activities." t
On the other hand, counsel for the Respondent, in his
brief, states that the Respondent "readily acknowledges
they knew of Risner's Union activity after he made a point
of telling Foreman Jones in or about the second week of
February." However, the Respondent argues that Risner
was terminated during his 60-day probationary period as
the result of a regular evaluation of his work which oc-
curred near the end of his probation. He argues that the
evaluation was prompted after Risner had an unexcused
absence on February 10, that the evaluation established
that Risner's work was unsatisfactory, that his absences
during probation were excessive, and that he misrepresent-
ed one of these absences. The combination of these factors,
so counsel asserts, led the Respondent to conclude that
Risner's employment should be terminated.
Counsel contends that Risner's lack of credibility is an
important factor in this case, inasmuch as he denied that
his work performance was unsatisfactory and that he mis-
represented an excused absence. In the first place, counsel
notes that on his employment application Risner, in re-
sponse to the requirement that he list his four most recent
employers, omitted Metal Prefab, by which he had last
been employed. Counsel points out that it "became clear"
why Risner did not list Metal Prefab on his application,
because Risner "had been drinking on the job and came
back after work, but during another shift, still intoxicated,"
and that he engaged in argument with the owner and in
other respects disrupted employees. Accordingly, Risner,
so it is contended, was terminated by Metal Prefab because
he had been intoxicated on the job. Risner denied that he
was terminated for intoxication; on the contrary, he testi-
fied that he quit. Counsel for the Respondent contends that
Risner's untruthfulness was demonstrated when Robert
Foust, an employee of Metal Prefab, testified in consider-
able detail regarding Risner's intoxication on the job and
his disruptive activities in the plant after finishing work.
Moreover, counsel points out that on January 16, Risner
clocked in at 6:59 a.m. and left work at 9 o'clock.
There is no dispute that Risner was given permission to
leave at 9 o'clock in the morning in order to take his child
to the doctor. It is Laffey's testimony that Risner said he
would then return to work. However, Laffey testified that
Risner was seen in a tavern that morning by an electrical
contractor used by Laffey. Risner later testified that he had
been drinking in a tavern that morning but that was occa-
1 In this regard , Heise testified that Jones told him , the day after Risner
was terminated , that "We fired your buddy because he was not an electri-
cian and because he was the head of the union and a troublemaker ." Jones
acknowledged he had a conversation with Heise after Risner was terminat-
ed. "something about his buddy got fired , but it was nothing to do with the
union definitely ." and testified that he told Heise , "Yes, I fired your buddy
... because of supposedly being an electrician and the work attitude he
had in the shop ." Jones denied that he ever accused Smalley of bringing the
Union in.
sioned by the fact that he was waiting for the doctor to
complete the examination of his child. Risner further testi-
fied that he took his wife and child home after the visit to
the doctor but, he later testified that he took his wife shop-
ping and then went to his mother's home and finally to his
own home. In this regard, Respondent's counsel, in his
brief, notes that it "must be remembered that Risner told
Laffey that he would be returning to work." But, on the
other hand, according to Risner's version, he could have
driven home in 20 minutes and then back to the doctor's
office with his child and wife by 10 o'clock in the morning.
Risner testified that he was in the bar for approximately an
hour, or until about 11 o'clock. However, instead of taking
his family home and then returning to work which,
Respondent's counsel asserts, Risner "could have managed
by at least 12:00 noon and completed 3-1/2 more hours of
work," he admittedly took the rest of the day off. In view
of Risner's asserted "suspicious accounts on that day,"
counsel for the Respondent undertook to ascertain the
name of Risner's doctor and the accuracy of the date Ris-
ner allegedly visited him. This information was obtained
and showed that Risner's doctor had no record of any visit
by Risner's child on January 16; indeed, the only record
concerned a visit made I month after Risner was terminat-
ed. In consequence, counsel for the Respondent submits
"that in light of the above misrepresentations Risner's be-
lievability as a witness is in serious doubt."
The Respondent contends that the work performance of
Risner was unsatisfactory during his 60-day probationary
period. Risner initially denied that he was undergoing a
probationary period. However, on the second day he testi-
fied he stated that he had a 30-day probationary period.
On the other hand, Laffey, Foreman Jones, and other wit-
nesses testified that some employees were given a 60-day
probationary period. Counsel foi the Respondent, in view
of the above, submits that Risner did in fact have a 60-day
probationary period in which his work performance, as
well as that of other employees, was evaluated. Laffey testi-
fied without contradiction that, since starting business in
April 1975 he has hired substantially more than 100 em-
ployees and that he had terminated at least 17, including
Risner, during their probationary period. In consequence,
counsel submits that "considering Risner's poor perfor-
mance and unexcused absences, it can be seen why his
employment terminated in early February."
It is argued by counsel for the Respondent that the first
indication that the work of Risner would be unsatisfactory
came shortly after he was hired, on December 10, when
Laffey had to call in an outside electrician to complete a
job that Risner had undertaken. The testimony is that Ris-
ner had spent the whole day on the job when, in contrast,
the outside electrician completed it in 30 minutes. Risner,
who testified that he had had experience in electrical work
and carried an IBEW card, asserted that Laffey had or-
dered the wrong part and had endeavored to install it him-
self. On the other hand Laffey testified that this allegedly
wrong part was still on the machine and operated properly.
Laffey stated that Risner had taken the magnetic starter
apart, jammed it, and then cracked it. According to Jones,
Laffey then endeavored to put the part together.
On the following day, Jones remarked critically on
CONSOLIDATED SERVICES
Risner's work, telling him that it only took the outside elec-
trician about 30 minutes to repair the switch. In response,
Risner stated that even Laffey could not fix the switch. In
response, Jones told Risner that Laffey did not claim that
he was an electrician , as Risner had stated he was. Further-
more, counsel for the Respondent contends that the testi-
mony is undisputed that Jones assigned Risner the task of
wiring a press, with the result that Risner could not get the
press operating. Again, an outside electrician was called in,
who completed the job. Thereafter, Risner was assigned
another job but, after about 2 hours, Jones came to the
conclusion that Risner could not do it without the aid of
another employee. Jones then transferred Risner to anoth-
er job and later, because he observed that the job "wasn't
being done," assigned employee Dekoker to "help him out
and he fixed it."
Risner asked to do some welding work on Christmas
Day. The next day, Laffey criticized what Risner had done,
stating that the welds he had made were unsatisfactory
and, as Laffey testified , they were "garbage." Laffey told
Risner to cut out the welds and, after working for some 2
hours, Risner stated he had some important business to
attend to, and left the job. Employee Anderson finished the
welds.
In testifying, Risner denied that the welding work he did
was unsatisfactory and testified that he had not been crit-
icized. In this regard, counsel for the Respondent, in his
brief, states that Risner "is proven completely wrong; and
it is not even necessary to rely on Respondent's testimony
alone, for a fellow employee discredits Risner. Employee
Anderson testified and corroborated Laffey's testimony
that Anderson was assigned to arc out some welds and to
reweld Risner's December 25 work."
Testimony presented by the Respondent further indi-
cates that about the middle of January it took Risner about
24 hours to do a welding job of about 8 hours duration
and, moreover, that he improperly installed a handrail. It
appears that Jones told Risner that he had spent too much
time on that job and was therefore removing him. Jones
assigned another employee to finish it. According to em-
ployee Meyers, Risner had in fact spent too much time on
this work assignment.
Counsel for the Respondent summarizes the matter by
stating that in addition to his unsatisfactory work perfor-
mance Risner, in approximately 40 days of employment,
had been absent three times without an excuse (December
18, January , 9, and February 10), a fact verified by the
Respondent's personnel records. In connection with each
absence , Risner admittedly stated that he had not tele-
phoned the Respondent to report his absence.2
Counsel for the Respondent further contends that a con-
sideration was "Risner's lying to the company about his
`excused ' absence on January 16, when he was seen in a
tavern." Finally, counsel for the Respondent asserts that
2 In this regard , counsel for the General Counsel appears to contend that
other employees had worse absentee records and were not subjected to
discipline . However, it should be noted that Risner was in his probationary
period and , according to the Respondent , was terminated primarily on the
basis of his unsatisfactory work. There appears to be no evidence that other
employees were also in their probationary period when they had unexcused
absences and, in addition, that their work was unsatisfactory.
851
the incident that finally led to the termination of Risner
was his third unexcused absence on February 10. In regard
to this matter, Risner admittedly had no excuse and stated
that he was aware that the Respondent's rules at that time
required a call-in.
During the week of February 10, Laffey and Jones met
to discuss Risner's record. It was the view of Jones that
Risner could not take orders and was not able to perform
the job. He accordingly recommended that Risner be ter-
minated. The testimony of the individuals involved in this
termination is that the union activities of Risner were not
discussed and, indeed, there is no indication that the Re-
spondent had knowledge of these activities when it decided
to end Risner's employment. Accordingly, Risner was told
on February 14 that he was terminated.
C. Refusal To Bargain
Under date of February 7, Staff Representative Tobin of
the Union wrote to Laffey advising him that a majority of
the production and maintenance employees at the Knox
plant had authorized the Union to represent them, request-
ed that a meeting be held "for the purpose of negotiating
and executing a contract dealing with wages, hours and
other terms and conditions of employment for said em-
ployees," and stated that he was prepared to submit to an
unbiased check of the authorization cards. On February
10, the Union filed a representation petition with the
Board. Under date of February 14, Laffey wrote to Tobin
stating that he had discussed Tobin's letter with representa-
tives of the Board and felt Tobin was "being presumptious
[sic]" in his statement, requested that Tobin "allow this
petition to follow the due process of law" and stated that
he had informed employees of the status of the petition. An
election was held on March 24 and the Union was certified
as the collective-bargaining representative on April 1. It is
the contention of the Respondent that it never refused to
bargain but that, "It is the Union that refused to bargain
with the Company!"
Shortly after the election, Tobin called a Mr. Rosen-
baum, who had been at the election as a representative of
the Respondent, because he had learned that the employ-
ees had been laid off and sought to find out what was
happening at the plant. He asked Rosenbaum to set up a
meeting for the purpose of discussing what he felt was con-
duct by Laffey amounting to an unfair labor practice in
laying off the employees after the Union had won the elec-
tion. Tobin testified that he had a meeting with Laffey
sometime in August. On cross-examination, Tobin ac-
knowledged that he canceled a meeting that was set up for
a date shortly after the election but that it was not for the
purpose of negotiating a contract because, so Tobin testi-
fied, it "was meaningless to try to set up negotiations with
everybody on layoff." Tobin denied that it was the purpose
of the Union to refrain from negotiations, testifying that in
fact "a letter was sent to the Company asking for negotia-
tions and a meeting was set up for this past Monday which
the Company canceled."'
Tobin subsequently received a letter from the Respon-
J Tobin testified on September 24.
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent, dated June 23, in which the Respondent stated that it
had repeatedly tried to get in touch with him, beginning
about 10 days after the election , at which time "we both
agreed on a meeting for April 11, 1975. But on April 10,
1975 you called and said because of court obligations
would we please wait for another phone call to set up an-
other meeting." The Respondent went on to state that he
had never heard from Tobin and had tried to get in touch
with him on frequent occasions but had been unable to do
so. The Respondent stated that it could not "understand
why we have been presented with the charge of refusing to
negotiate when you're the one who has broken the original
meeting and now we haven 't heard from you, and we can't
seem to get in touch with you."
On July 21 the Respondent wrote to Tobin , recalling
that it had written to him on June 23 and made many
attempts to get in touch with him. Laffey went on to state
that he had received no acknowledgment of the June 23
letter, and asked Tobin "just who it is that is refusing to
negotiate? Let it be stated that Consolidated Services is
ready , willing, and open for and to any meetings with you
for the purpose of negotiating a contract." Laffey wrote
that if Tobin's "sole purpose" was to close the Respondent,
"let it be understood the result will be detrimental only to
the men you claim to represent, rendering them jobless at a
time when the country is in a bad economic state ." Laffey
continued by stating that he would not be the only one
hurt as he had "other irons in the fire that are in no way
connected with Consolidated Services ," but that Tobin's
"petty attitude , misrepresentations, and even harassment
of our nearly only customer" by the Board in Tobin's be-
half, was "making the bankruptcy of Consolidated Services
to appear to be the only course open to us ." He further
noted that the only Apex job in the shop at that time would
be finished in about a week or a week and a half, that
thereafter "the only jobs that will be entering our shop for
Apex will be small and inconsequential ones , if any, until
this union mess is cleared up and out of the way," and that
the Respondent could not resume full operation until Apex
.,can be assured that Consolidated Services is again run-
ning smoothly ." Laffey concluded that Tobin had "already
cost the men and their families the benefit and security of
a good group insurance plan because you have placed us in
such an unstable position in the eyes of Apex that the work
will be only released to us in dribbles which is not enough
of a dribble to warrant the employ of the required 10 em-
ployees to qualify our shop for a group insurance plan."
On July 23 Tobin wrote to the Respondent ; however, he
failed to suggest a date for a meeting . On August 1, the
Respondent wrote to Tobin suggesting that Wednesday,
August 13, was a convenient date for a meeting and asked
that if Tobin was unable to meet on that date to notify the
Respondent "as soon as possible in writing when would be
a more acceptable time for you ." The parties did meet on
August 13 at the Respondent's offices . Tobin testified that
at that time he "asked for certain information and as of
today have not received this information" and that a meet-
ing was arranged for Monday, September 22, in the event
the information he had requested was supplied prior there-
to. The information Tobin had requested concerned rates
of pay and other such matters . On September 10 Laffey
replied that a meeting on September 22 for negotiations
was satisfactory and advised that a bid he had submitted
on a job previously was unsuccessful. He stated that the
information Tobin had requested would be made available
on September 22 at the time of the meeting. On September
18, Laffey wrote to Tobin that "due to court preparation
for Wednesday, September 24, we will be unable to keep
the date of September 22, 1975 set by you for negotiations"
and suggested an alternate date of September 29. However,
apparently Tobin did not receive the letter prior to his leav-
ing for the meeting on September 22.
Counsel for the Respondent argues that, apart from the
"obvious fact" that the Respondent "has never refused to
meet and bargain with this Union, the real significance of
this chain of events involving Laffey's efforts to bargain is
that it is further proof of the Company's good-faith effort
to deal with the Union, and, at the same time, it demon-
strates that the Company had no union animus." Further,
he argues that it "seems highly improbable" that the Re-
spondent would intentionally lay off employees in order to
defeat the Union and would then "turn around and plead
with the Union to come to the bargaining table." Accord-
ingly, counsel for the Respondent urges that the complaint
be dismissed in its entirety.
D. Discussion and Conclusions
My assessment of the evidence, despite some conflicts in
testimony, leads me to the conclusion that the
Respondent's supervisory personnel made some unlawful
statements to employees; however, I am of the opinion that
it did not engage in discriminatory conduct with respect to
the layoffs or the termination of Risner, or unlawfully re-
fuse to bargain with the Union. My reasons for so finding
follow.
While the versions of what Foreman Jones stated to em-
ployees differ in some respects, I am persuaded that in
substance he did tell the employees that if the Union did
come in it was likely that their jobs would be adversely
affected. Moreover, I believe that Foreman Jones did state,
as testified by Heise with regard to the conversation con-
cerning the termination of Risner, that the latter had been
terminated, in part, because he was a prime instigator of
the Union. I am of the further opinion that, in the office
conversation at which Heise, Patrick, and Anderson were
present, Laffey made a remark to the effect that if the
Union came in his operations would be adversely affected.
In this connection, I note that, although Laffey denied hav-
ing made that statement, employee Anderson, called as a
witness by the Respondent, was not questioned concerning
this and, counsel for the General Counsel comments that
this failure to interrogate Anderson about this matter was
due "presumably because his testimony would not have
supported Mr. Laffey's denial."
As to the layoffs, undenied and objective evidence dem-
onstrates to my satisfaction that Apex, which accounted
for over 90 percent of the Respondent's business, had expe-
rienced a substantial downturn in its operations, a fact
which had been communicated to the Respondent consid-
erably prior to the actual layoffs. The record further shows
that Laffey made efforts to stay in business after the Union
CONSOLIDATED SERVICES 853
was certified. Thus, he sought work from Apex after March
24 and was successful in obtaining a few additional orders
in June and July. Upon receiving the first order, Laffey
begain to call back employees . This was done according to
need, which meant that welders were initially required.
Laffey went to some pains to communicate with the laid-
off employees, as is shown by the fact that two, Spicer and
Berndt, were notified by certified letter on June 3 and re-
ported shortly thereafter; employee Dekoker was sent a
certified letter on the same date but declined the job, sub-
sequently returning to work on September 18; on June 9
Smalley was sent a certified letter but it was returned and
Laffey then contacted the Board's office to obtain
Smalley's correct address, and Smalley reported for work
shortly before the second letter was sent to him.
Turning now to the termination of Risner , there is no
question that he had been active in initiating union activi-
ty, to the knowledge of the Respondent. It is undisputed,
however , that Risner, when terminated , was still in his pro-
bationary period, that shortly theretofore he had had an
unexcused absence , and that on several occasions it had
been necessary for the Respondent to assign another em-
ployee to complete work that he had begun or done. In
addition, Risner had failed to show on his application, as
clearly required, that his last employer was Metal Prefab.
There is testimony, which Risner denied, but which I cred-
it, that he was terminated from that job for reasons that
reflect adversely upon him. Finally, Risner's conduct on
January 16, when he obtained permission to leave in the
morning in order to take his child to the doctor, plainly
indicates that he was unreliable and, indeed, not above
uttering falsehoods . It seems . evident to me that Risner
spent a considerable length of time in the tavern and that
he did not, as records demonstrate, take his child to visit
the doctor. Under all the circumstances, while the timing
of Risner's termination so shortly after Respondent be-
came aware of his union activity renders the Respondent's
action in terminating him suspicious, and without over-
looking the contention of counsel for the General Counsel
to the effect that if the Respondent "truly had good
grounds for discharging Risner , it would have done so long
before February 14," on balance I nevertheless come to the
conclusion that he was terminated for reasons not violative
of the Act.
On the question of the Respondent's alleged refusal to
bargain with the Union, it seems plain to me that the Re-
spondent made every reasonable effort to engage in negoti-
ations with the Union. Indeed, it seems evident that the
Union was primarily responsible for any delay in meeting
for negotiations and, further, that it was primarily interest-
ed in the layoff of employees. Therefore, I conclude that
the record does not establish that the Respondent unlaw-
fully refused to bargain with the Union; accordingly, this
allegation will be dismissed.
111. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth above have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Charles Edwin Laffey, d/b/a Consolidated Services,
is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act and United Steelworkers
of America, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
2. By making threats to and questioning its employees
concerning their activities in behalf of the Union, the Re-
spondent violated Section 8(a)(1) of the Act.
3. The Respondent has not engaged in any conduct vio-
lative of Section 8(a)(3) and (5) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
It having been found that the Respondent has engaged
in unfair labor practices, it will be recommended that it
cease and desist therefrom and take certain affirmative ac-
tion designed to effectuate the policies of the Act.
[Recommended Order omitted from publication.]