Elmo Greer & Sons

National Labor Relations Board - Board Decisions

Sep 30, 1993

312 N.L.R.B. 703 (N.L.R.B. 1993)

703
312 NLRB No. 117
ELMO GREER & SONS
1 There is no exception to this dismissal.
2 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
Elmo Greer & Sons, Inc. and William Watkins.
Case 9–CA–29227
September 30, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On November 4, 1992, Administrative Law Judge
James L. Rose issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations 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 only to the extent consistent
with this Decision and Order.
The complaint alleges that on July 15, 1991, the Re-
spondent’s foreman, Bentley, implied in a conversation
with Charging Party Watkins that the Respondent in-
tended to terminate Watkins if he did not cease his
union activities and that, on the following day, the Re-
spondent laid off Watkins in violation of Section
8(a)(3). As to the first allegation, the judge credited
Bentley’s testimony that he told Watkins that General
Superintendent Pennington was ‘‘on my ass’’ about
Watkins’ accidents. Watkins had had several accidents
during the course of his employment, including tipping
over a bulldozer for the second time earlier that day.
Bentley had previously counseled Watkins about his
accidents on several occasions. On the day in question,
Bentley told Watkins that Pennington might fire him
on that account. The judge discredited Watkins’ testi-
mony that Bentley told him Pennington was looking
for an excuse to fire him (Watkins) and that he had
better drop the Union. Instead, the judge credited Bent-
ley’s denial that he said anything to that effect and
therefore dismissed the 8(a)(1) allegation.1 The judge
further concluded, however, that the Respondent vio-
lated Section 8(a)(3) when it laid Watkins off. The
judge applied a terse Wright Line analysis.2 He found
that laying off one man while keeping the rest of the
crew at work was unusual and had not been satisfac-
torily explained. He noted that although Bentley testi-
fied there was not enough work for four men, the seed
crew received help from the fencing crew and Bentley,
in a departure from past practice, spent about half his
time working as a crewmember.
The Respondent in its exceptions asserts that the
judge erred in finding a violation in the Watkins’ lay-
off and argues that the complaint should be dismissed
in its entirety. We find merit in the Respondent’s ex-
ceptions.
The Respondent is engaged in highway construction
in Kentucky and surrounding States with a normal
work force of about 250 to 300 employees, which is
augmented during busy times. The Respondent is a
member of the Highway Contractors’ Inc., which nego-
tiates with the Steelworkers Union on behalf of its
members. The collective-bargaining agreement covers
the unit of employees basically engaged in preparing
the roadbed and building the highway, but does not in-
clude those employees who put up guard rails, erect
fences, or perform seeding operations. Watkins was
employed on the seeding crew. Watkins had been em-
ployed by the Respondent on and off for several years.
He had been laid off on earlier occasions, and in 1990
had quit and been off for several months. After return-
ing to work, he suffered an off-the-job injury which
kept him out of work until April 1991. In July 1991
members of the seeding crew, including Foreman
Bentley, discussed among themselves contacting the
Union because of a lack of health insurance. Watkins
contacted the union steward, who came to the jobsite
on two occasions and, apparently, talked primarily to
Watkins. The second time was on July 15. That same
day Watkins tipped over a bulldozer for the second
time and had the discussion with Foreman Bentley re-
ferred to above in which Bentley told him that he
might be fired because of the accident.
Assuming for the purposes of discussion that the
General Counsel established a prima facie case, we
find, contrary to the judge, that the prima facie case
was rebutted by the Respondent. Accordingly, we dis-
miss the complaint.
On July 16, according to Bentley’s uncontested testi-
mony, Superintendent Pennington decided that one em-
ployee should be laid off from the seeding crew. There
was about another week and a half’s work left on the
project. The seeding crew was running up against the
back of the fencing crew and, if they continued as they
were doing, the Respondent would have had to lay off
the entire crew sooner. Superintendent Pennington
originally had identified employee Hatton for layoff
because he thought Hatton was the last man hired.
Bentley, however, told Pennington that Watkins was
the last man hired and that if anybody was to be laid
off, it should be Watkins because the Respondent al-
ways tried to lay off by seniority. Pennington then
agreed and Bentley notified Watkins that evening.
The judge reasoned that the layoff of one man while
keeping the rest of the crew at work was unusual and
that there was no evidence that the Respondent ever
laid off just one man and kept the rest of the crew.
The judge’s discussion in this regard appears to be de-
rived from the testimony of employee Hatton. But Hat-
ton’s testimony concerned layoffs before bad weather
or in the winter when the Respondent did not work.
Indeed, the judge did not reconcile Hatton’s further
704 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
testimony in accord with that of Bentley that 1 week
after Watkins was laid off, Hatton himself was laid off
while the rest of the seeding crew spent a few days at
another project. Thereafter, the rest of the crew, in-
cluding Foreman Bentley, was also laid off.
The judge also found that after Watkins’ layoff,
Bentley spent about half his time working as a crew-
member and that that was a departure from past prac-
tice. He concluded, therefore, that there was in fact
work for the entire crew after Watkins’ layoff. We
note that the judge’s statement fails to take account of
Hatton’s testimony, discussed above, that, he was laid
off while the rest of the crew continued to work. We
also find that the judge misconstrued Bentley’s own
testimony.
Bentley testified that as a matter of normal routine
he performed some seed crew work such as operating
the straw bar, the dozer, the lime truck, or the straw
truck. When asked whether he worked alongside the
seed crew at the Louis County project, Bentley testi-
fied that he usually ran a seed sower; most of the time
he ran a straw blower. When asked how much of his
workday he spent running the seed sower and the
straw blower, he answered, ‘‘oh, about half a day, I
guess.’’ Thus, although it appears that he spent some
additional time working with the crew at Louis Coun-
ty, Bentley’s testimony does not support a conclusion
that there was full-time work for an additional em-
ployee; indeed it suggests the converse.
The judge found that if Watkins’ layoff had been
due to lack of work then he would have been recalled
by the summer of 1992, and he inferred from this evi-
dence an intent to discharge Watkins. We note, how-
ever, that there is no allegation of a discriminatory
failure to recall Watkins during the summer of 1992.
Further, when the Respondent’s counsel, after examin-
ing Seed Crew Foreman Bentley about activities of the
seed crew in 1991, asked about Bentley’s experience
with the seed crew since January 1992, counsel for the
General Counsel objected on the ground that it was not
relevant to issues raised by the complaint.
Although at least Bentley was aware of the seed
crew’s discussions concerning a lack of health insur-
ance with the union steward, there is no evidence in
this record to suggest union animus. Indeed, the only
independent allegation in that regard was dismissed by
the judge on credibility grounds. We find that the lay-
off of Watkins as the junior member of the crew was
in accord with past practice, as was Hatton’s layoff
shortly thereafter as the next junior crewmember. Bent-
ley’s testimony that the seed crew at that time was
‘‘running up against the fencing crew’’ and would
therefore otherwise require earlier layoffs of the entire
crew is uncontradicted.
We conclude based on the foregoing, and assuming
that the General Counsel presented a prima facie case,
that the case was rebutted by the Respondent, which
demonstrated that Watkins was laid off for lawful eco-
nomic reasons and not for engaging in union activities.
ORDER
The complaint is dismissed.
Eric V. Oliver, Esq., for the General Counsel.
James U. Smith, Esq., of Louisville, Kentucky, for the Re-
spondent.
William Watkins, pro se.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. This matter
was tried before me on June 10, 1992, at London, Kentucky,
on the General Counsel’s complaint which alleged that on
July 16, 1991, the Respondent laid off the Charging Party
from his employment in violation of Section 8(a)(3) and (1)
of the National Labor Relations Act.
The Respondent generally denied that it engaged in any
unfair labor practices. Although admitting that the Charging
Party was laid off on the date alleged, the Respondent con-
tends the layoff was the result of a lack of work. The Re-
spondent further contends that this complaint is barred by
Section 10(b) of the Act.
On the record as a whole, including my observation of the
witnesses, briefs, and arguments of counsel, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
It is alleged, admitted, and I find that the Elmo Greer &
Sons (the Respondent or the Company) is engaged in high-
way construction and road building out of its London, Ken-
tucky facility and in furtherance of this business, it annually
purchases and receives at London, Kentucky, directly from
points outside Kentucky, goods valued in excess of $50,000.
At all times material, the Respondent has been an employer
engaged in interstate commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
It is admitted, and I find, that United Steelworkers of
America, Local 14581, AFL–CIO–CLC (the Union) is a
labor organization within the meaning of Section 2(5) of the
Act.
The charge here was filed on January 14, 1992, and
mailed to the Respondent by certified mail on January 16,
1992. Because the Charging Party was laid off on July 16,
1991, the Respondent contends this matter is barred by the
limitation period of Section 10(b).
The Respondent acknowledges that for purposes of deter-
mining the 10(b) period, the first day is the day after the
event, or July 17. MacDonald’s Industrial Products, 281
NLRB 577 (1986). The Respondent further acknowledges
that service of a charge is the day when it is put in the
United States mail. St. John Medical Center, 252 NLRB 514
(1980).
Counsel for the Respondent contends, however, that this
matter is time-barred because more than 180 days elapsed
705ELMO GREER & SONS
between July 17, 1991, and January 16, 1992. Although true,
180 days is not 6 months. Section 10(b) specifically states
the limitation period to be ‘‘six months.’’ The charge here
was filed within and served on the last day of the 6-month
period following the event alleged. Accordingly, the Re-
spondent’s defense that the limitation period of Section 10(b)
had run is rejected.
II. THE FACTS
The Company is engaged in highway construction in Ken-
tucky and surrounding States. Its normal work force of about
250 to 300 is augmented during busy times to 450 to 500.
The Company is a member of the Highway Contractors, Inc.,
which negotiates with the Union on behalf of its members.
The collective-bargaining agreement covers a unit of employ-
ees who, basically, are engaged in preparing the road bed
and building the highway. Excluded are other employees.
Among the employees excluded from the bargaining unit
are those who work on the seeding crew. At all times mate-
rial, the seeding crew consisted of four employees and a
foreman, Edward Burton Bentley.
The seeding crew comes onto a project at the end, follow-
ing the fencing crew. As the name implies, the seeding crew
plants grass on the median strips and right-of-ways. This
work is somewhat seasonal and the crew moves from project
to project, depending on the state of completion.
William Watkins, the Charging Party, has worked for the
Respondent since 1984; however, he had a break in service
from mid-July until October 1, 1990. This was caused by his
quitting his employment. He was twice called to return to
work because the Company needed another person on the
crew and he had experience and necessary skills. The first
time he declined, the second he accepted. After returning, he
suffered an off-the-job injury which kept him out of work
until April 1991.
In July members of the seeding crew concluded that they
were being mispaid, their rates being set by some kind of a
board pursuant to a prevailing wage law. They took this up
with Bentley who referred them to the Respondent’s general
superintendent, Junior Pennington. He told them the scale
board was wrong.
Shortly thereafter, members of the seeding crew discussed
among themselves, but apparently in the presence of Bentley,
that they ought to contact the Union because of their lack of
health insurance. These discussions took place at night, ap-
parently at the place where all but Billy Hatton were staying.
Hatton drove home each night. The others, including Bent-
ley, stayed near the job.
Pursuant to the employees’ discussions, Watkins contacted
the Union’s steward, who came to the jobsite twice. The first
time was on or about July 11, the second was Monday, July
15. The steward talked primarily to Watkins.
On July 15, Watkins had another accident, and for the sec-
ond time tipped over a dozer. Although no damage was
done, Bentley did tell Watkins ‘‘Junior is done already on
my ass and he will be after your ass if you have another ac-
cident.’’ Watkins testified that Bentley said that Pennington
was looking for an excuse to fire him and that he had better
‘‘drop the Union.’’
According to Bentley, the next day Pennington said to lay
off one man, naming Hatton because he was the junior em-
ployee. Bentley told Pennington that Watkins was junior, be-
cause of his break in service, and Pennington said to lay him
off.
The rest of the crew then went to another job and worked
a couple weeks then, according to Bentley, Hatton was laid
off and the rest of the crew worked another week or so. Hat-
ton testified that the entire crew was laid off when he was
and they were off work about 6 weeks. In any event, when
the crew returned to work, Watkins was not recalled. Bentley
testified that Pennington said if they needed more help, they
could get it from the fencing crew.
Though the Respondent contends that Watkins is merely
on layoff, to the time the hearing he had not been recalled.
III. ANALYSIS AND CONCLUDING FINDINGS
A. The 8(a)(1) Allegation
It is alleged that on July 15, 1991, Bentley implied that
the Respondent intended to terminate an employee (Watkins)
if he did not cease his union activities.
Inasmuch as this event allegedly occurred more than 6
months before the service of the charge, it is barred by Sec-
tion 10(b) of Act. Accordingly, no order based on this al-
leged threat can be issued.
However, because this incident is also offered as evidence
of the Respondent’s discriminatory motive in laying off Wat-
kins, findings concerning it must be made.
Both Bentley and Watkins testified to the discussion they
had following the dozer accident on July 15. Watkins testi-
fied that Bentley told him that Pennington was looking for
an excuse to fire him and that he had better drop the Union.
Bentley denied this, or anything to its effect. And he seemed
credible in doing so.
Bentley testified that Pennington was ‘‘on my ass’’ and
would be on Watkins’ as well if he had another accident.
Watkins had had several during the course of his employ-
ment, including twice tripping over the dozer. Bentley’s ver-
sion of this discussion was credible and plausible.
I therefore conclude that Bentley did not threaten Watkins
with discharge should he continue his union activity. Such,
however, does not negate a discriminatory motive when Wat-
kins was laid off.
B. The Layoff of Watkins
There is evidence that when the union steward came to the
jobsite and talked to Watkins, this was observed by Bentley.
And Bentley did not deny seeing the steward talk to Watkins
on two occasions, including the day before Watkins’ layoff.
Beyond that Bentley testified that the crew discussed the
Union because they were concerned about the lack of health
insurance. Thus the union activity of Watkins and the seed-
ing crew employees was known by their supervisor and, I
infer, by Pennington.
Within in a few days after the employees began discussing
the Union and talked to the Union’s steward, Pennington in-
structed Bentley to lay off one man. This turned out to be
Watkins, who was indisputably the junior employee on the
seeding crew. However, because he could drive a truck and
operate the dozer, he had skills which Hatton did not.
Although all the seeding crew employees were involved in
discussing the Union, clearly Watkins took a leading role,
contacted the Union’s steward and talked to him at the job-
706 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
site. This was known to Bentley, and I infer, to Pennington
in absence of any evidence to the contrary.
Although the seeding crew is laid off from time to time
when work runs out, there is no evidence that the Respond-
ent ever laid off just one man and kept the rest of the crew
working. Although the testimony is general and vague, it ap-
pears, and I find, that the Company’s practice is to have a
four-man seeding crew with a foreman who spends substan-
tially all his time with supervisory duties; and, when a layoff
is necessary due to lack of work, the entire crew is affected.
Sometimes when work is resumed, at first the foreman and
two employees are called back.
On this record, I conclude that the layoff of one man
while keeping the rest of the crew at work is unusual. Al-
though Bentley testified that there was not enough work for
four men, he also testified that the crew was helped by em-
ployees on the fencing crew. And he testified that after Wat-
kins’ layoff, he spent about one-half his time working as a
crew member, which was a departure from the practice.
From this I conclude that there was in fact work for the en-
tire crew subsequent to the layoff of Watkins.
This unusual layoff by the Respondent, within days of the
employees’ union activity, leads me to conclude that the
General Counsel established prima facie that the layoff of
Watkins was discriminatorily motivated. That their interest in
the Union was the causative factor is further supported by
the fact that this activity came shortly after the employees,
with Watkins leading, protested their pay.
Therefore, the burden was on the Respondent to prove that
it would have laid off Watkins even in the absence of his
and the other employees’ union activity. Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved NLRB v. Transpor-
tation Management Corp., 462 U.S. 393 (1983). I conclude
that the Respondent did not carry its burden.
Pennington did not testify. Bentley did not explain why it
was necessary to lay off one man and then get help from the
fencing crew. He did testify that with a four-man crew, they
would have pushed against the fencing crew, but this was
rather general and unpersuasive testimony. He offered no
facts or other evidence to support it. There is simply no evi-
dence why in mid-July 1991 the Respondent decided to use
a three-man rather than a four-man seeding crew. Absent
some evidence of why Pennington determined to change the
basic crew manning, I conclude he would not have done so
if the employees had not demonstrated an interest in the
Union.
If the layoff of Watkins had simply been due to lack of
work, as the Respondent contends, then it would be expected
that at least by the summer of 1992, he would have been re-
called. He was not. This suggests that the Respondent’s in-
tent was to discharge Watkins. Because no reason was given
I must conclude that the intent was to discriminate against
him because of his and others’ union activity. Accordingly,
I conclude that the Respondent violated Section 8(a)(3) of
the Act.
REMEDY
Having concluded that the Respondent engaged in unfair
labor practices, I recommend that it be ordered to cease and
desist therefrom and take certain affirmative action.
Because the Respondent laid off William Watkins in viola-
tion of Section 8(a)(3) and (1) of the Act, I recommend that
it be ordered to offer him reinstatement to his former job and
to make him whole for any loss of wages or other benefits
he may have suffered as a result of the discrimination against
him, with interest. F. W. Woolworth Co., 90 NLRB 289
(1950); New Horizons for the Retarded, 283 NLRB 1173
(1987).
[Recommended Order omitted from publication.]