Elion Concrete, Inc.

National Labor Relations Board - Board Decisions

Jul 13, 1990

299 N.L.R.B. 1 (N.L.R.B. 1990)

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2 No 88-2196 (4th CV Aug 16, 1989) (unpublished)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