Kidd Electric Co.

National Labor Relations Board - Board Decisions

Apr 29, 1994

313 N.L.R.B. 1178 (N.L.R.B. 1994)

1178
313 NLRB No. 205
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
No exceptions were filed to the judge’s dismissal of the 8(a)(1)
allegations.
Kidd Electric Company and International Brother-
hood of Electrical Workers, Local Union 342,
AFL–CIO. Case 11–CA–15283
April 29, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
On August 6, 1993, Administrative Law Judge Rich-
ard J. Linton issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Kidd Electric Company,
Greensboro, North Carolina, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order.
Jasper C. Brown Jr., Esq., for the General Counsel.
Richard M. Greene, Esq., of Greensboro, North Carolina, for
Respondent Kidd Electric.
Gary M. Maurice, Bus. Mgr. (IBEW Local 342), of
Kernersville, North Carolina, for Charging Party Local
342.
DECISION
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge. This is a
termination case (ostensibly a layoff of three electricians as
a regular reduction in force, or RIF). Agreeing with the Gov-
ernment that the three were laid off because they had become
‘‘troublemakers’’ for organizing on behalf of IBEW Local
342, I order Kidd Electric Company (KEC) to reinstate the
three discriminatees (Donald W. Burnside Sr., Arthur Wayne
Cobb, and Allan B. Younts) and to pay them backpay, with
interest.
The linchpin supporting the Government’s case is evidence
concerning remarks of the construction superintendent, Virgil
C. ‘‘Pete’’ Vass, which Vass made in a January 7, 1993 tele-
phone conversation with a certain ‘‘Tony.’’ Younts over-
heard Vass tell ‘‘Tony’’ that he would ‘‘get rid of the trou-
blemakers as soon as I can.’’ Six days later Vass laid off
Burnside, Cobb, and Younts as a RIF. On motion at close
of the General Counsel’s case-in-chief, I dismissed the
8(a)(1) allegation based on Vass’ telephone remarks about
troublemakers. I ruled that the remarks were insufficient to
show a connection to the union organizing. With the whole
record as context, however, I find that Vass’ remarks show
animus. They also disclose, I find, that Vice President Tony
G. Kidd instructed Vass to ‘‘get rid of’’ the three union or-
ganizers, that Vass promised to do so, and that 6 days later
he did so because they were organizing KEC’s employees at
the jobsite.
I presided at this 1-day trial on May 20, 1993, in Greens-
boro, North Carolina pursuant to the February 26, 1993 com-
plaint issued by the General Counsel of the National Labor
Relations Board through the Regional Director for Region 11
of the Board. The complaint is based on a charge filed Janu-
ary 19, 1993, and later amended, by International Brother-
hood of Electrical Workers, Local Union 342, AFL–CIO,
CLC (Union, Local 342, or Charging Party) against Kidd
Electric Company (KEC, Company, or Respondent).
In the Government’s complaint the General Counsel al-
leges that Respondent KEC violated Section 8(a)(1) of the
Act, 29 U.S.C. § 158(a)(1), on various dates in December
1992 and January 1993 when KEC, by Supervisor Robert A.
Biagini, interrogated Company’s employees and (with one
count as to Vass) threatened to impose various economic
penalties, including layoffs and discharge, because of their
activities on behalf of Local 342. The complaint also alleges
that KEC violated Section 8(a)(3) of the Act, 29 U.S.C.
158(a)(3), on January 13, 1993 when it laid off three em-
ployees: Donald W. Burnside Sr., Arthur Wayne Cobb, and
Allan B. Younts.
By its answer KEC admits some facts, denies violating the
Act, denies the statutory labor organization status of the
Union, and denies that Robert A. Biagini is a statutory super-
visor.
The General Counsel and Respondent KEC filed
posthearing briefs. The Government’s brief includes a pro-
posed order and notice to employees. After the hearing the
due date for receipt of briefs was extended to July 12, 1993,
a Monday. KEC’s certificate of service states that service of
its brief, dated July 12, was made that day by ‘‘overnight de-
livery.’’ KEC’s brief was received and filed in the Atlanta
office on Tuesday, July 13, 1993. Thus, KEC’s brief was
both served and filed 1 day late under 29 CFR 102.111(b).
The General Counsel has not objected. I have considered
KEC’s brief.
Unless otherwise indicated, references to dates are to the
relevant timeframe of October 1992 to May 1993.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and by Respondent Kidd Elec-
tric, I make the following
FINDINGS OF FACT
I. JURISDICTION
A North Carolina corporation engaged as an electrical con-
tractor in the building and construction industry, KEC cur-
1179KIDD ELECTRIC CO.
1 References to the one-volume transcript of testimony are by vol-
ume and page. Exhibits are designated GCX for the General Coun-
sel’s and RX for Respondent KEC’s. Probably because the transcript
is a bit large at 332 pages, the court reporting service divided it into
two volumes. I have restrung it into a single volume.
rently is performing inside electrical work at the University
of North Carolina at Greensboro. As established by amend-
ments to the pleadings at trial (1:9),1 KEC, during the past
12 months, purchased goods and materials valued at $50,000
or more direct from points outside North Carolina. Respond-
ent KEC admits, and I find, that it is an employer within the
meaning of Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATION INVOLVED
In its answer to complaint paragraph 6, KEC denied that
IBEW Local 342 is a statutory labor organization. No plead-
ings amendment, stipulation, or evidence ostensibly ad-
dressed this at the trial. Following close of the hearing the
parties have stipulated (G.C. Br. at 10 fn. 3; KEC Br. 3) that
IBEW Local 342 is a labor organization within the meaning
of Section 2(5) of the Act, and KEC moves, in effect, to
amend its answer to so admit. I grant KEC’s motion to
amend, and by now approving the stipulation, I make it part
of the record.
In addition to the parties’ stipulation, I note record evi-
dence demonstrates that employees such as Arthur Wayne
Cobb and Donald W. Burnside Sr. participate in the organi-
zation (Cobb has been the Union’s president for 2 years and
Burnside a member of the executive board) and, by virtue of
the organizing here in part in relation to obtaining higher
wage rates for the employees, I find that IBEW Local 342
exists, at least in part, for the purpose of dealing with em-
ployers concerning rates of pay. Accordingly, I find that
IBEW Local 342, as alleged and stipulated, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
1. Witnesses and credibility
Eight witnesses testified. The General Counsel called five,
and KEC three. Testifying as the Government’s witnesses
were the three alleged discriminatees (electricians or mechan-
ics, Donald W. Burnside Sr., Arthur Wayne Cobb, and Allan
B. Younts) plus electrician’s helpers Wayne Lee Johnson and
Jonathan Roos. Johnson and Roos testified under subpoena
while current employees of KEC.
Two of KEC’s witnesses are admitted management offi-
cials: Tony Garland Kidd, vice president and project man-
ager, and Virgil C. ‘‘Pete’’ Vass, job superintendent on the
project involved here. Robert Biagini, whose alleged status
as a statutory supervisor and agent is disputed, was KEC’s
third witness.
Burnside, Cobb, and Younts testified at the rebuttal stage,
and Vass took the stand again for the surrebuttal stage.
Having observed the witnesses closely, I find the Govern-
ment’s witnesses credible, and I do not believe KEC’s wit-
nesses. The witnesses called by the General Counsel testified
with apparent sincerity and straightforwardness. KEC’s wit-
nesses sometimes testified evasively, and appeared to be
making an effort to respond in a manner calculated to aid
their employer’s position rather than to give the facts. Their
demeanor was unpersuasive. I do not believe KEC witnesses
Biagini, Kidd, or Vass.
2. The project
The construction project here consists of adding some stu-
dent housing at the University of North Carolina’s Greens-
boro campus (UNCG). (1:20, 254). Nine three-floor build-
ings, identified as A through I, are being constructed, with
each building containing from 6 to 14 apartments, totaling
over 70 apartments, or units. (1:47, 275). The apartments are
for single students, and each apartment unit has four to five
students. Each student has a small (8 x 10) private bedroom,
but he or she shares a common bath, shower, kitchenette, and
living area with the other three or four students of that unit.
(1:47, 292). At completion the nine buildings will be joined
and will form a ‘‘square’’ for security. (1:254.) The record
does not define the ‘‘square’’ to be made by the nine build-
ings, but in any event the nine buildings apparently will form
a quadrangle. As of the hearing the buildings had not been
completed nor the quadrangle closed. (1:253).
The witnesses agree that the general contractor must set
metal studs (as the wall framing, presumably) before KEC’s
electricians can begin their rough-in of installing conduit,
pulling wire or cable, mounting electrical boxes, and making
electrical joints by connecting the wires. (1:22, 57, 118, 155,
260). A key issue is whether, at the time of the January 13,
1993 layoffs, no more rough-in work was available to be
done because metal studs had not yet been installed in cer-
tain buildings by the general contractor.
3. Personnel
KEC’s officer in charge of the electrical contract on the
UNCG project is Tony G. Kidd. Vice President Kidd testi-
fied that he looks after project costs, including materials and
labor, and monitors productivity to determine whether work
is on schedule in relation to the man-hours on which KEC
based its bid for the electrical work. (1:209-210). Kidd testi-
fied that he visits the jobsite most every day, and usually
three to four times a day. (1:242).
Virgil C. ‘‘Pete’’ Vass was hired about April 1992 as the
job superintendent at the beginning of the project. (1:209-
210, 248-249). Vass testified that his duties include respon-
sibility for hiring and firing. (1:249). Kidd testified that he
leaves staffing to Vass unless productivity drops to the point
it interferes with KEC’s billing (to, presumably, the general
contractor). (1:210).
Kidd (1:210) and Vass (1:249) testified that Robert Biagini
was the first person hired after Vass. Although Biagini was
an electrician, there as yet was no need for an electrician,
and Biagini was hired in a helper/laborer’s position at about
$7.50 to $7.75 per hour. (1:211, 250, 296). When electrical
construction began around May, Biagini was reclassified to
electrician at $10.50 per hour. (1:212, 250–251, 296).
Alleged discriminatees Burnside (1:17), Cobb (1:161), and
Younts (1:116) were hired in mid-October 1992. Immediately
before and after the three were hired, KEC was at its full
complement of 22–23 persons on the project payroll. (1:217;
RX 3).
1180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4. Union organizing activity
Arthur Wayne Cobb, an electrician for 28 years (1:161),
has been president of IBEW Local 342 since June 1991.
(1:29, 175-176). Cobb’s office in the Union is an unpaid po-
sition. (1:176). Younts has been a member of the Union’s ex-
ecutive board for 2 years—also an unpaid position. (1:136).
Younts has some 20 years’ experience as an electrician.
(1:120). Also a member of the Union, Donald W. Burnside
Sr. has over 31 years’ experience as an electrician, beginning
his apprenticeship in 1961. (1:26-27). Burnside, Cobb, and
Younts are close friends. (1:64, 137). They have organized
together on other jobsites. (1:64).
Cobb hosted two organizing meetings at his home, the first
meeting being on November 12 and the second on December
9. (1:30, 120, 166-167). Burnside testified that about late No-
vember Robert Biagini, while conversing with him, began
complaining about pay for electricians in the Greensboro
area. Burnside told him of the forthcoming union meeting of
December 9, told him he was welcome to attend, and sug-
gested that he go and speak with Cobb about the Union.
(1:31, 60, 62). About 10 employees, including Burnside,
Cobb, Younts, and Biagini attended the second meeting, and,
Burnside testified, an unspecified greater number attended
the first meeting. (1:30, 59).
There is no dispute that Biagini attended the second meet-
ing and signed an IBEW 342 authorization card there. (1:30,
139, 167, 176, 178, 298, 310). After an evasive fashion,
Biagini denies that he initiated conversation on the topic with
Burnside by complaining about pay for electricians in the
Greensboro area. (1:313-314). I credit Burnside that he did.
B. Supervisor/Agent Issue
The parties litigated the status of Robert Biagini as a statu-
tory supervisor, with the General Counsel alleging and advo-
cating the affirmative, and KEC arguing the negative. As the
party asserting that a statutory exclusion (supervisor) applies
to worker Biagini so as to exclude him from the general
class of employee, the General Counsel has the burden of
persuasion. This is the Board’s longstanding rule. Adco Elec-
tric, 307 NLRB 1113, 1116 (1992).
Turning now to the question of supervisory status, I note
that Biagini’s situation is one of those borderline cases in
which he may be a statutory supervisor, but might not be.
I need not resolve the supervisor question because it is clear
he is KEC’s statutory agent. (The parties do not address the
agency status in their posthearing briefs.) Thus, Superintend-
ent Vass testified that he frequently used Biagini to convey
‘‘what I needed done;’’ (1:251); to ‘‘convey my words or my
wishes.’’ (1:270). Biagini confirms such and testified that he
carried out those instructions. (1:306). Thus, KEC, by Vass’
express assignments to Biagini, invested Biagini with the ac-
tual authority of agency to act on Superintendent Vass’ be-
half. Communication Workers Local 9431 (Pacific Bell), 304
NLRB 446 fn. 4 (1991).
This actual authority covered a range of activities, includ-
ing obtaining and laying out materials, checking on work, as-
signing anyone working with him the task of repairing any
work deficiencies found by Biagini (1:271-273, 275), and at
other times to transfer employees, at Vass’ instruction, from
one job or area to another. (1:284). Vass also had given
Biagini the responsibility to open and close the trailer, where
supplies were kept. (1:271, 275, 284). All this is without
looking to the more expansive versions given by the General
Counsel’s witnesses.
Finally, Vass asserts that when he was not at work on De-
cember 31, apparently deer hunting, he previously had di-
rected Biagini to let the employees take the afternoon off for
New Year’s Eve. (1:285-286). Biagini contradicts Vass, testi-
fying that he did it on his own. (1:300). Aside from that dis-
pute, the point here is that Vass claims he gave Biagini the
actual authority to grant the time off.
The extensive actual authority which Vass admittedly vest-
ed in Biagini also clothed Biagini with the apparent authority
to act as KEC’s agent. So pervasive were work assignments
by Biagini to the employees that Arthur Wayne Cobb testi-
fied he looked upon Biagini as a job foreman. (1:181). Don-
ald W. Burnside Sr. testified that while he saw Biagini two
to three times a day, he saw Vass no more than once every
2 to 3 days. (1:25). Significantly, Younts describes how
Biagini sometimes would use his independent judgment to
countermand Vass’ instructions. (1:157). At other times Vass
would tell Younts to see Biagini for work assignments.
(1:157-158). Clearly the employees reasonably believed that
whatever Biagini said or did reflected KEC’s policy and Su-
perintendent Vass’ directives. Accordingly, I find that at all
relevant times Biagini was acting as KEC’s statutory agent
by virtue of both actual and apparent authority. Because of
that agency status, KEC is responsible for Biagini’s actions.
Tyson Foods, 311 NLRB 552 fn. 2 (1993); Albertson’s, 307
NLRB 787 (1992).
C. Alleged 8(a)(1) Coercion
1. Eight of ten allegations disposed of at trial
a. Six withdrawn
Complaint paragraph 8 alleges 10 incidents of conduct by
Robert A. Biagini and Superintendent Vass (one only) inde-
pendently violating Section 8(a)(1) of the Act. At the close
of the Government’s case-in-chief, the General Counsel,
based on the absence of a witness in support of certain alle-
gations, moved to withdraw six of these, paragraphs 8(b)[two
incidents], (c) as to January 19, 1993, (d), (e) as to January
19, 1993, and (f). The items were allegations of mid-January
1993 threats by Biagini that employees had been or would
be laid off, subjected to unspecified reprisals, or the project
closed because of their union activities. I granted the General
Counsel’s unopposed motion to withdraw the six allegations.
(1:185-187).
b. Two others dismissed at trial
(1) December 17, 1992 interrogation by Biagini
KEC thereafter moved to dismiss the remaining allega-
tions. (1:188). I granted the motion respecting two. First,
paragraph 8(a) alleges that on December 17 Biagini interro-
gated employees concerning their activities on behalf of the
Union. Allan B. Younts testified in support. On KEC’s mo-
tion (1:198), I dismissed the allegation because the incident
reasonably would not tend to coerce. (1:200, 204).
1181KIDD ELECTRIC CO.
(2) January 7 threat by Superintendent Vass
The second complaint paragraph which I dismissed at the
hearing on Respondent’s motion (1:196-197), paragraph 8(e)
as to January 7 by Vass, alleges that on January 7, 1993, Su-
perintendent Vass threatened employees with termination if
they engaged in union activities. I describe the matter here
because the evidence figures later in my decision, as I noted
at the outset.
Younts testified that before lunch on January 7, 1993, he
went to KEC’s jobsite trailer to get some wire nuts to use
in splicing wire. KEC’s office is at the rear of the 45-foot
trailer, and the wire nuts are stored close to the office door.
As Younts entered the trailer and arrived at the parts area
near the office door he heard Vass’ voice through the closed
door to the office. Vass seemed to be talking to someone on
the telephone. Younts heard Vass say:
Tony, I will get rid of the troublemakers as soon as
I can.
After a pause Vass again spoke, saying ‘‘O.K. Whatever.’’
Hearing noise, as if someone were about to emerge from the
office, Younts left the trailer. Younts testified that he was not
aware of any ‘‘troublemakers’’ on the job. Vass never other-
wise identified the ‘‘Tony,’’ Younts testified, nor did he
identify the ‘‘troublemakers.’’ Younts concedes that he has
no direct knowledge that Vass’ promise to get rid of the
troublemakers had anything to do with the employees con-
nected with the job. (1:128-129, 146-149).
I granted KEC’s motion to dismiss on the ground there
was insufficient connection of the threat to get rid of the
‘‘troublemakers’’ to any employees or protected activity.
(1:196). In dismissing the 8(a)(1) allegation, I explained that
the evidence could be argued in support of the 8(a)(3) allega-
tion. Even so, Vass did not address this incident when he tes-
tified. I will consider it when I discuss the 8(a)(3) allegation.
2. Two remaining allegations dismissed
a. Interrogation on December 23, 1992
Complaint paragraph 8(a) alleges that on December 23,
1992, KEC, by Robert A. Biagini, interrogated its employees
concerning their activities on behalf of the Union. Respond-
ent denies. Arthur Wayne Cobb testified in support of this
allegation. I denied KEC’s motion to dismiss. (1:204).
Department in which Cobb was working and asked Cobb,
‘‘When are you Union guys going to do something?’’ Cobb
said that they could not do it by ‘‘ourselves,’’ that they need-
ed ‘‘their’’ help if they wanted anything done. The brief con-
versation apparently ended with Biagini’s saying that he did
not think a union could ever be brought in. About 2 weeks
later, in early January 1993, Biagini asked the same question
and Cobb responded as before. Cobb concedes that there was
nothing in Biagini’s manner of asking the question to suggest
that he was antagonistic toward the Union. (1:168-169, 179-
180). Biagini did not address this incident when he testified
on direct examination. In a brief reference on cross-examina-
tion he denies what possibly was this allegation, although he
could have been referring to other events. (1:311-312). In
any event, Cobb was a persuasive witness, but Biagini was
not. I credit Cobb.
This incident must be considered in light of the earlier
date, apparently December 15 or so, when Younts and Cobb
confronted Biagini over the report that Biagini had betrayed
the employees by informing Superintendent Vass about the
December 9 union meeting at Cobb’s home. Biagini admitted
he had told Vass. Fewer than 10 days later Biagini interro-
gated Cobb about when were ‘‘you’’ union guys going to do
something. Clearly the question was designed to get informa-
tion, and the circumstances were such as to indicate that
Biagini was asking on behalf of Superintendent Vass. Biagini
even sought to discourage the organizing by expressing the
opinion that it would fail.
Cobb was the president of IBEW Local 342, but the orga-
nizing, and his participation, had not been open and public.
Cobb did not react to Biagini’s question by asking if Biagini
would run with the answer to Vass (he even suggested that
the organizing could not proceed further if Biagini and others
did not help), and in fact said he did not feel threatened.
(1:179). However, the test is not whether the interrogation
succeeded in coercing Cobb, but whether the words and con-
text would reasonably tend to coerce an employee.
There is no evidence that KEC had unlawfully opposed
unionization, or even opposed it at all. The type of informa-
tion requested (when are the ‘‘Union guys’’ going to do
something) could be indicative of a violation because, in
light of background events, it is designed to inform manage-
ment of the Union’s plans. The question seems far less likely
to have come only from Biagini’s inquiring for his personal
interest that the Union’s organizing get off the ground. In-
deed, Biagini quickly added a note designed to discourage
any organizing.
Biagini’s company rank at KEC was that of, at most, a
first line supervisor. Construction unions represent foremen
and first line supervisors, and no doubt this explains why the
employees, who viewed Biagini as a construction foreman
(1:181-182, Cobb) or leadman (1:81, Johnson), invited him
to attend the December 9 union meeting at Cobb’s home.
The company rank factor points toward a finding of noncoer-
cion. Similarly, the location of the interrogation, at Cobb’s
workstation rather than the construction office, points toward
a finding of noncoercion.
While the manner of the interrogation was not hostile,
Biagini’s reference to ‘‘you Union guys’’ possibly reflects
that he had separated himself from the others and, in light
of background events, suggests that Biagini is inquiring on
behalf of Superintendent Vass. That would suggest coercion.
However, it can be inferred that Biagini had learned at the
December 9 meeting that Cobb and Burnside were officials
of IBEW Local 342. Based on that knowledge, his ‘‘Union
guys’’ would be nothing more than a factual reference to
their positions as officials of the Union. Also on December
17 Biagini told Younts that ‘‘you Union boys do a whole lot
better work than the others.’’ (1:121). It appears that Biagini
used the phrase as a factual, noncoercive reference.
So far as the record shows, Cobb’s response to Biagini
was truthful. No evidence discloses what plans the Union
had for its next step in the organizing. Presumably the orga-
nizing never reached the point that the Union could demand
recognition or file an election petition. The nature of Cobb’s
answer does not, I find, indicate either coercion or noncoer-
cion.
KEC denies responsibility for Biagini’s conduct, and the
record contains no direct evidence of the purpose behind
Biagini’s question. Of course, Biagini announced no purpose
1182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and gave no assurance that no reprisals would be taken even
if the employees supported the Union.
In light of all the circumstances, I find that Biagini’s ques-
tion did not rise to the level of coercion. Accordingly, and
having dismissed the December 17 incident at the hearing,
I now shall dismiss complaint paragraph 8(a) in its entirety.
b. Layoff threat of January 18, 1993
Complaint paragraph 8(c) alleges two incidents. At the
hearing the General Counsel withdrew as to the date of Janu-
ary 19, leaving the date of January 18, 1993. (1:186-187).
Thus, it is alleged that on January 18 KEC, by Biagini, ‘‘ad-
vised its employees that their fellow employees had been laid
off because of their activities on behalf of the Union.’’ I in-
terpret this statement to allege an implied threat that, as with
the three laid off on January 13, the other employees would
be terminated if they too were foolish enough to support the
Union. Electrician’s helper Johnathan Roos testified in sup-
port of this allegation. Biagini did not address this allegation
when he testified.
Roos, who was assisting electrician Terry Carver (1:104,
110), testified that the morning of January 18, as he and
Carver were preparing to begin work in the stairwell, third
floor, H Building, Biagini came by and remarked to Carver,
‘‘The Union boys are gone.’’ Carver replied, ‘‘What good is
a union now.’’ Carver and Biagini then laughed. Roos said
nothing. (1:102-104). Roos testified with a favorable manner,
and I credit him.
The exchange between Biagini and Carver, in the presence
of Roos, falls short of a threat, or implied threat, of dis-
charge by KEC. It appears to have been more of a mutual
expression, by like-minded individuals, of satisfaction at see-
ing the departure of three employees who supported the
Union. Nothing in the remark suggests that KEC, through
Superintendent Vass, terminated Burnside, Cobb, and Younts
because they supported the Union. I therefore shall dismiss
paragraph 8(c) in its entirety.
D. The January 13 Layoff Decision
1. Introduction
a. Overview of positions
The complaint alleges that on January 13, 1993 KEC laid
off Donald W. Burnside Sr., Arthur Wayne Cobb, and Allan
B. Younts, and thereafter refused to reinstate them, because
of their activities on behalf of the Union. Admitting the ter-
mination, KEC denies all else. As described by Vice Presi-
dent Kidd (1:218, 224, 241-242) and Superintendent Vass
(1:256-258, 283), KEC’s position is twofold. First, a layoff
was necessary because work at the jobsite had reached a
slack point, and second, the three were selected because of
seniority (Kidd) or seniority, poor work habits, and attend-
ance (Vass).
b. Vice President Tony G. Kidd
Vice President Kidd testified that he decided a reduction
in force was necessary (1:241), and that Superintendent Vass
selected the individuals for layoff (1:224, 229, 230). Vass did
not discuss the selection in advance with him. (1:227, 230-
231). Work actually began slowing down before Christmas,
but he and Vass, and particularly Vass, wanted to hold off
until after Christmas before having a layoff. (1:229, 247).
Work was slack because KEC had caught up with the gen-
eral contractor. That is, KEC could not do the rough-in for
Buildings G, H, and I because the general contractor had not
yet installed metal studs in those buildings. (1:224, 242). As
earlier noted, there is no dispute that metal studs have to be
installed before rough-in work can proceed. The general con-
tractor did not get the metal studs installed in Building H
until 3 weeks before the hearing, or about April 29. (1:224).
Kidd testified that there was no problem with the three
laid off. While there had been an attendance problem, the
slack in the job was able to absorb their absences. But there
was no problem, at least none reported to Kidd, about the
quality of their work. (1:229-230, 243). From Kidd’s per-
spective, it was a matter of economics. KEC could not afford
to keep $10-an-hour electricians on the payroll doing vir-
tually nothing. Whatever work remained available could be
done by helpers. (1:224, 241, 245). Kidd explains that help-
ers’ pay ranges up to $8 per hour, while pay for electricians
ranges from just over $8 to $11 an hour. On this job, how-
ever, Biagini has been the top-paid electrician at $10.50 per
hour, and during November through January he was the only
one earning that rate. (1:222-223).
Kidd testified that as a ‘‘rule of thumb’’ the last employee
hired is the first to be laid off. (1:231). As of January 13,
and continuing as of the hearing, KEC was working 4-day
weeks of 10-hour days at this jobsite. (1:247). Even so, from
a 1993 high of 23 on the payroll for the week ending
Wednesday, January 13 (with the last previous high of 23
being the week ending Wednesday, October 21), employees
on the payroll dropped in the following weeks to 19, 15, 14,
and 13 before moving up to 16 the week ending April 21
and to 18 the week ending Wednesday, May 5, 1993. (RX
3). Thus, Kidd testified, from January on there has been a
general decline in the numbers of employees on the job with
no electrician hired after January until April 21. (1:227, 240,
241).
c. Superintendent Pete Vass
Superintendent Virgil C. ‘‘Pete’’ Vass testified that as of
January 1993 KEC had roughed-in Buildings A, B (second
floor only), C, D, and F. Rough-in on the second and third
floors of Building B were completed the week before the
hearing. Installation of the metal studs in Building G had just
begun in January 1993. Part of Building I, a bit less than
three apartments, was available for work. Buildings E and H
were not ready for roughing-in. Work had gotten so slack by
January that Vass had six employees rather than two working
in some apartments. As a result, ‘‘I cut my forces.’’ (1:256-
258).
Agreeing with Kidd, Vass testified that he did not discuss
his decision beforehand with Kidd. (1:258). Normally he
does not discuss with Kidd layoffs or problems with employ-
ees. (1:287). Later the day of the layoff Vass informed Kidd
that he had laid off the three. (1:287). Vass’ description ap-
pears to suggest that, contrary to Kidd’s testimony, he not
only made the selection decision but the economic decision
(to have a reduction in force) as well. However, the testi-
mony is not precise on this point because the questions did
not distinguish between the economic decision to reduce
forces and the secondary decision of whom to select.
1183KIDD ELECTRIC CO.
Contrary to Kidd’s assertion of no problem with the three
laid off, Vass testified that he selected Burnside, Cobb, and
Younts for two deficiencies, in addition to the fact they were
the last electricians hired (Kidd’s LIFO). First, and appar-
ently the main problem, they wandered around the jobsite
and were ‘‘never’’ at their work areas. (1:259, 263, 265,
279). Second, they had poor attendance. As to attendance,
Vass testified that Cobb was absent ‘‘several’’ times and
Younts was out probably more than any employee. (1:265-
266). Vass’ reason is unclear for lumping Burnside with the
other two on attendance. Vass concedes that Burnside’s at-
tendance was ‘‘pretty good,’’ and that he usually was at
work except for the days he missed after sustaining an on-
the-job injury. (1:266). Burnside fell at the jobsite on Decem-
ber 9, broke a rib, and was off work until Monday, January
5. (1:38, Burnside; RX 3). Younts concedes he missed some
10 days (1:150), or 2.5 weeks’ of work (at 4-day weeks).
Cobb testified that he was off work 1 week for surgery.
(1:167; RX 3).
d. The layoff
On Wednesday, January 13, 1993, at the close of a pay
period, KEC laid off the alleged discriminatees, Donald W.
Burnside Sr., Arthur Wayne Cobb, and Allan B. Younts. To-
ward the end of the day, after the three had been directed
by Biagini to meet Superintendent Vass in the parking lot,
Vass notified Burnside and Cobb that the three were laid off.
Younts was off work that day with a cold. Vass gave
Younts’ paycheck to Burnside and asked him to deliver it to
Younts. Later that afternoon Vass telephoned Younts and
told him of his layoff and that Burnside would deliver his
paycheck. This much is undisputed.
The dispute centers on what Vass said or did not say re-
specting a reason for the layoff. Burnside’s description is a
bit disjointed, but he appears to assert that Vass gave them
their checks and said, ‘‘That’s it.’’ When Cobb (perhaps be-
cause checks normally were distributed on Thursdays) asked
for the reason, Vass said, ‘‘That’s it. We came to the end.’’
Vass gave no reason, Burnside later asserts. (1:33). On cross-
examination Burnside, initially denying that Vass told the
two that the work was ‘‘caught up,’’ then testifies that Vass
answered Cobb, ‘‘We’re caught up,’’ and concedes that his
pretrial affidavit so states. (1:50-51).
According to Cobb, Vass just said ‘‘It’s that time.’’ When
Cobb asked why, Vass replied, ‘‘Well, somebody’s got to
go.’’ (1:170). He does not recall Vass’ saying the work was
‘‘caught up.’’ (1:184).
Younts testified that Vass called and said that it had come
that time on the job that he was going to have a layoff and
Younts and his ‘‘buddies’’ were the ones being let go.
Younts asked if this was a regular reduction in force and
Vass answered yes. (1:129).
According to Vass, he told them, ‘‘Gentlemen, we’ve
caught up with the building, as you know, and I’m going to
have to lay some people off.’’ They did not object and said
they understood. This presumably was the conversation with
Burnside and Cobb, for Younts, Vass recounts, was absent
that day. (1:259-260).
What actually was said on this occasion, I find, was a
combination of Burnside’s corrected version as corroborated
by the first half of Vass’ account. The bottom line is that
Vass, on a question by Cobb, told them that they were
‘‘caught up’’ with the work. I turn now to address KEC’s
reasons.
2. Discussion of KEC’s reasons
a. The evidence
KEC advances a layoff dictated by economics. The Gov-
ernment attacks the layoff decision itself by seeking to show
that there was no slack period in the work because the build-
ings were ready for more roughing-in. Evidence adduced on
the question of whether a layoff was needed focuses gen-
erally on status of the work at the jobsite. A finer focus is
on how many buildings needed further rough-in work. That
leads to the inquiry of whether metal studs had been installed
in any of the remaining buildings. If so, there was rough-in
work to be done.
Burnside testified that nearly half the buildings remained
to be roughed-in. (1:33-35, 49-50). As far as Burnside
knows, KEC never caught up with the metal studs being in-
stalled by the general contractor, or other subcontractor.
(1:50). Although he did not enter and inspect each of the re-
maining buildings (1:48), he testified that the building next
to the one they were working on at layoff had metal studs
and was ready for rough-in. (1:52, 54). Indeed, they still had
rough-in work to do on the building they were in. (1:53). At
trial Burnside was unable to match letters with buildings
without a set of (not present) prints. (1:49, 52-54). Burnside
testified that, so far as he knows, two other electricians (ap-
parently meaning two crews of a mechanic and a helper) also
were doing rough-in work. (1:35, 55).
Younts gave a similar percentage, about 45 percent, of
rough-in remaining. He gives the number of buildings re-
maining as three. A building by the parking lot was ready
for rough-in. (1:131-132). On cross-examination Younts con-
ceded, in effect, that he did not know which remaining build-
ings had the metal studs because it had not been his job to
make that inspection (1:154). Younts’ last day at work was
Monday, January 11. (1:153). Biagini told him his last day
at work that the following week KEC would begin roughing-
in one of the remaining buildings. (1:154). Younts testified
that as of January 13 he had about 4 days left of wire pull-
ing. (1:155). Presumably Younts means that there was that
much available to do then rather than how much would be
needed for the remaining buildings. Cobb did not describe
the status of the buildings.
Electrician’s helper Wayne Lee Johnson, called by the
General Counsel, testified that he and Burnside were rough-
ing-in kitchens on January 13. As of the layoff, there was
one building to be done, no more than 2 days’ work. (1:95).
Johnson did not identify the building, and apparently meant
that the 2 days’ work remaining was what was then available
to do. Earlier, however, he identified Building H as un-
touched, with three apartments on each floor. (1:76, 89). He
conceded, on cross-examination, that Building H did not
have the metal studs installed as of January 13 and that the
building was not then ready to be roughed-in. (1:90-91). In
fact, Johnson testified that as of the January 13 layoff KEC
had caught up with the metal studs and work had slowed.
(1:92).
However, Johnson testified that in the past when KEC
caught up with the metal studs KEC would have the elec-
tricians do odd jobs until the apartments were ready for
1184 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
roughing-in. (1:91). Vass agrees with this concept, but appar-
ently to the extent there is something to do. Thus, he testified
that Cobb, who normally made joints, assisted with the
rough-in the last few days because ‘‘we’d caught up.’’
(1:283-284).
Electrician’s helper Jonathan Roos testified that the project
had other work to be done other than roughing-in as of Janu-
ary 13. (1:108). He gives no specifics, however, and con-
cedes that other electricians remained on the jobsite. (1:108).
Earlier Roos testified that much of Building H had not been
roughed-in. (1:105). On cross-examination Roos initially tes-
tified that he thought the first floor, and possibly the second
floor, had not been studded, but then said he could not re-
member. (1:107).
b. Discussion
The testimony of the General Counsel’s witnesses is gen-
eralized and usually marked by an inability to identify spe-
cific buildings. None testified from a set of prints, and the
three alleged discriminatees apparently had not made a recent
visit to the jobsite. Much of the testimony indicates that the
witnesses did not know whether metal studs had been in-
stalled. I find that Kidd and Vass are more reliable witnesses
in this respect.
Some rough-in work may have been available for the days
following January 13. However, KEC had other crews on the
job to handle the work. That takes us to the next group of
topics. To conclude here, although the layoff is highly sus-
pect, I find that the evidence fails to show an artificial fac-
tual basis for KEC’s decision to reduce its payroll at the end
of the pay period on January 13, 1993.
E. KEC’s Selections for Layoff
1. Introduction
KEC contends that the three individuals laid off were se-
lected for lawful considerations—seniority, wandering, at-
tendance. The General Counsel must make a prima facie
showing that a motivating factor in the selection for layoff
of Burnside, Cobb, and Younts was their union activities.
The burden then shifts to KEC to demonstrate that the three
would have been selected even in the absence of union activ-
ity.
The Government attacks here primarily against the senior-
ity ground, arguing that junior employees were retained. The
General Counsel seeks to refute the stated ground of wander-
ing, but makes no effort to show that others wandered more
or had worse attendance records than Burnside, Cobb, or
Younts.
2. Seniority
Superintendent Vass testified that one of the reasons he se-
lected Burnside, Cobb, and Younts for layoff was that, ex-
cept for one other mechanic, they were ‘‘the last electricians
hired.’’ (1:259). The other electrician, or mechanic (1:217),
was Wayne E. Frazier, hired January 11, 1993. (1:218, 232,
267, 327, GCX 2 at 6.) Vass testified that he hired Frazier
for pulling heavy cable at the jobsite. (1:267, 327.) The work
of pulling heavy cable seems to be less than fully described,
and appears to involve something more than the occasional
(1:327) pulling of heavy cable off reels. In any event, al-
though Frazier expressed a desire to work no more than ‘‘a
few weeks’’ (1:267), he soon left, on January 21. (GCX 2
at 6). Following Frazier’s early departure Vass hired, as
Frazier’s substitute, a mechanic named Edward O. Collins Sr.
for an indefinite period on January 25. However, Collins left
after only 2 days. (1:268-269; GCX 2 at 8).
Vass testified that he did not offer the heavy cable pulling
job to any of the three because he did not think they were
capable of the job even though they had at times assisted in
pulling the cable. He never told them this because he had no
reason to do so. (1:267, 278). On rebuttal, Cobb testified that
he had done the work on many other jobs, and that a lot of
strength is required. (1:320). Cobb described the physical
portion, such as moving reels and lifting and pulling the
cable (1:320), but Vass mentions experience (1:267) and on
surrebuttal implies specialized knowledge having to do with
a ‘‘terminix switch gear’’ (1:327) not addressed by the other
witnesses.
Like Cobb, Burnside testified that he has pulled heavy
cable on other jobs, but he does not address the matter of
special skills or knowledge required. (1:323).
Younts testified that on several occasions during the first
week of January he assisted in pulling heavy cable at the
jobsite. (1:324-326). Younts apparently worked on the phys-
ical pulling that was needed at times. He did not address
anything having to do with special skill or knowledge associ-
ated with the project. Indeed, Vass testified that for the occa-
sional physical pulls, anyone available, mechanic or helper,
was drafted to assist—a half dozen at a time. (1:327).
During cross-examination at surrebuttal, Vass testified that
(on January 13) he did not ask any of the three to do the
heavy cable work because of their injuries or illnesses. Thus,
he did not want to expose Burnside to the heavy labor when
Burnside had just recently returned to work after being off
with a broken rib; nor Cobb who, in December, had been out
for surgery; nor Younts who that very day was off work sick
with a cold. (1:328).
Although Wayne Frazier was the only mechanic hired in
the days before the layoff, several helpers were hired. In-
deed, the General Counsel (Br. at 12) points to hires of elec-
tricians (mechanics) and helpers (also called laborers by Vass
and Biagini) from January 4 to 25, for a total of two elec-
tricians and five helpers. ‘‘This evidence clearly refutes Re-
spondent’s assertion that there was no work available in Jan-
uary.’’ (Br. 13). The General Counsel also asserts (Br. at 14),
no names specified, that there were several employees with
less seniority than the three alleged discriminatees. Except
for Wayne Frazier, the record does not show any mechanics
with less seniority than Burnside, Cobb, or Younts.
The General Counsel has highlighted only a portion of the
evidence respecting staffing. To put matters in perspective,
an inspection should include December 1992. And if we are
to look at January 25, then all of January should be consid-
ered. When hires and departures for December 1992 through
January 1993 are reviewed, the totals are as follows (GCX
2): 8 hires, 11 departures, not counting the 3 alleged
discriminatees. Monthly it was one hire and three departures
in December and seven hires and eight departures in January.
The figures separate to show that in December KEC hired
one helper on December 1 (Wesley Harris) and no mechan-
ics; three helpers left (Burnside’s son on December 16, Tim-
othy G. French on December 23, and Jeffrey Williams on
1185KIDD ELECTRIC CO.
December 30), but no mechanics left. In January two me-
chanics were hired (Wayne Frazier on January 11 and Ed-
ward O. Collins Sr. on January 25) as were five helpers (Carl
W. Carver on January 4, Keith Burkhalter Sr. and Theodore
Lee Loring on January 5, Michael Maynard on January 11,
and Edward O. Collins Jr. on January 25).
January departures were four mechanics and four helpers,
the mechanics being Wayne Frazier on January 21, Edward
O. Collins Sr. and Charles F. Price on January 27, and Isaiah
Harris on January 28. The departing helpers were Lynn Terry
Chase on January 6, Wesley Harris and Theodore Lee Loring
on January 21, and Edward O. Collins Jr. on January 27.
In January before the January 13 layoff KEC had a net
gain of three helpers, but recall that three helpers had left
within the last 2 weeks of December. As already summa-
rized, one mechanic, Wayne Frazier, was hired shortly before
the layoff. Collins Sr. was hired on January 25 when Frazier
left. Thereafter the staffing level (RX 3) dropped to 14 by
February 24 and to 13 by April 7. (Kidd apparently states
that the staffing level includes everyone on the project, not
just mechanics and helpers. (1:221) Later in April some hir-
ing resumed so that by May 5 there were 18 on the payroll.
Kidd testified, without contradiction, that in the final stages
of construction that hiring would increase. (1:225).
Both Kidd (1:245) and Vass (1:270) make the point that
helpers are paid less than mechanics. Kidd testified that pay
for helpers ranges up to $8 an hour with the pay for mechan-
ics ranging from that point to $11. (1:222). Aside from
Biagini’s $10.50 (1:223), the other electricians named in the
record appear to have been paid a project standard of $10
per hour. Record figures for the helpers start at $5.50, for
several, and $7 to $8 for the ‘‘experienced’’ helpers such as
Timothy G. French, Wesley Harris, Carl Carver, and Edward
Collins Jr. (GCX 2).
At their January 13 layoffs the three received paychecks
apparently for the previous pay period. A final check was yet
to issue. Receiving a call on January 21 from Kidd that his
final check was ready, at the end of the day Burnside went
to the jobsite to get it. While there Burnside, seeing Vass,
asked Vass if he was hiring. ‘‘No, I’m not hiring,’’ Vass an-
swered. Burnside told him he was available for recall.
Burnside then took his check and left. (1:37-38). Vass did
not specifically address this point in his testimony. As we
have seen, January 21 was Wayne Frazier’s last day. Vass
does not explain why he did not that day at least discuss the
heavy cable job with Burnside. They could have discussed
whatever skill and experience is necessary and whether
Burnside’s rib was by that point fit for any heavy pulling.
3. Attendance
I shall not dwell on attendance. The General Counsel of-
fered no data to compare the attendance records of employ-
ees. Nothing in the record contradicts Vass’ testimony about
the attendance of the three alleged discriminatees. As already
noted, Vass describes Younts as having the poorest attend-
ance record of all employees. Younts admits to being out 10
days. As to Cobb, Vass asserts he was out ‘‘several’’ days.
(1:265-266). Cobb missed about the second week of Decem-
ber to have surgery. (1:167). He possibly missed all or part
of the week ending December 2. (RX 3). Other than time
missed because of his on-the-job broken rib, Burnside, in
Vass’ view, had ‘‘pretty good’’ attendance. (1:266).
Although KEC never issued any attendance warnings, oral
or written, to Cobb or Younts, and certainly not to Burnside,
there is no evidence that KEC had a written warning system.
Indeed, Kidd describes KEC’s records system as, in effect,
bare bones, with the ‘‘personnel file’’ consisting of the em-
ployee’s job application. (1:213-214). As we soon shall see,
Vass does on occasion orally caution an employee, but such
an event apparently is not memorialized by anything in writ-
ing or on computer. Finally, employer toleration of employee
conduct does not mean that such conduct is exempt from be-
coming a factor in a decision to lay off or to not recall. Evi-
dence showing disparity is important, but there is no dispar-
ity evidence here.
I find no surface taint in Vass’ inclusion of attendance as
a factor respecting Cobb and Younts. However, Vass’ initial
broad brush (1:259) does not exclude Burnside from the poor
attendance category, and he later (1:266) admits that
Burnside’s attendance was ‘‘pretty good, except for the time
he was out hurt.’’ I find that Vass’ general inclusion of
Burnside in the poor attendance category is tainted by a de-
sire to get rid of one of the union organizers notwithstanding
his rather good attendance.
4. Wandering
a. Facts
Superintendent Vass’ primary complaint about Burnside,
Cobb, and Younts is that they frequently wandered from
their work areas. Vass concedes that wandering by many em-
ployees to other buildings, where bull sessions would occur,
had become a general problem by early January. About the
first week of January, therefore, in addressing all employees,
about 20, at a safety meeting, Vass told them that ‘‘Christ-
mas is over,’’ that there was too much wandering to other
apartments, and that they were to stay in their work areas.
Vass had problems with several employees in the group re-
specting this, and not just the three. (1:263-264, 290). Younts
places the safety meeting as about early December. (1:134).
I find that it was early January based on Vass’ specific ref-
erence to Christmas.
Vass testified that after this general direction to the entire
group, which he hoped would resolve the problem (1:290),
he had occasion to orally warn each of the three on this
topic. (1:278-279). He spoke to Cobb in the first floor corner
unit of Building G in early January when Cobb should have
been in F Building making joints. Cobb was talking to an-
other employee on the occasion. Vass told Cobb he needed
to ‘‘get back to his workplace and stay there and do his
job.’’ Cobb defended on the basis he was just asking a ques-
tion. Working there was an electrician and a helper, but Vass
does not recall their names. (1:279-281).
With some minor difference on details, Cobb admits this,
although placing it about 2 weeks before he was laid off.
(1:320-322). It is unclear whether Cobb disputes that this oc-
curred after the group meeting. Crediting Vass, I find that the
incident occurred after the early January safety meeting.
I should note that Robert Biagini testified on cross-exam-
ination (he did not address the topic on direct) that on occa-
sion he had asked the three what they were doing out of their
work areas. He reported to Vass that the three were ‘‘float-
ing.’’ Vass acknowledged this with an ‘‘Okay.’’ Biagini
never memorialized this in writing, and he cannot recall any
1186 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
dates. (1:315-318). Cobb denies that Biagini even spoke to
him about being out of his work area. (1:322). It seems clear
that whatever report Biagini made, if any, occurred before
Vass’ general safety meeting in early January.
Vass testified that on one occasion after the early January
safety meeting he met Burnside emerging from Building E
when there was no work to be done there. He told Burnside
that he needed to stay in his work area. ‘‘We were just tak-
ing a break,’’ Burnside replied. (1:281).
Burnside testified that he would have to leave his work
area to go to the restroom and to obtain materials such as
junction boxes, pipe couplings and connectors, metal track,
and conduit straps. Instead of going to the trailer for sup-
plies, the electricians would go to a nearby apartment. Other
than for these two purposes, Burnside never left his work
area. (1:39, 47-48). Wayne Johnson, Burnside’s helper the
last 2 weeks before the layoff, confirms that Burnside left
only to get materials. (1:75, 78). On occasion workers from
other apartments would come share breaktimes with Burnside
in whatever apartment he was working. (1:40). Burnside de-
nies that any ‘‘supervisor’’ said anything to him about leav-
ing his work area and going to another work area (1:38-39)
or that either Vass or Birgini ever verbally (orally) warned
him for being out of his work area. (1:323). I credit
Burnside.
Vass only generally claims that after the early January
safety meeting he personally spoke to Younts about wander-
ing. (1:263-264). He gives no specifics. Younts denies that
anyone, including Vass or Biagini, ever spoke to him about
not visiting other apartments. (1:133-134, 324). I credit
Younts.
One other item, also bearing on animus, needs to be sum-
marized here. Helper Johnson testified that about early De-
cember on the first floor in Building A Biagini stopped and
spoke about work. Biagini then said that the Burnsides (fa-
ther and son) had better be careful if they wanted to keep
their jobs. (Recall that Burnside Jr. departed on December
16. GCX 2 at 4.) Biagini said nothing about Burnside’s
walking around the jobsite. Asked at trial whether he saw
any justification in Biagini’s remark, Johnson said he did not
know because he worked away from the Burnside crew and
could not observe them work. (1:76-78, 85-88).
Asked on cross-examination whether he had told
Burnside’s helper [no name specified] that he thought they
were ‘‘floating around’’ and would be in trouble if they kept
it up, Biagini answered, ‘‘No, I never told them that they
were in trouble or anything. I just asked them why they were
here when they weren’t supposed to be there.’’ (1:315).
On brief the General Counsel argues that the statement
Johnson attributes to Biagini ‘‘represents a clear threat of
discharge since Biagini was well aware of Burnside’s union
activity at that time. . . . Biagini’s statement . . . reflects
the strong animus Respondent had toward the three alleged
discriminatees who were attempting to organize the job. It is
submitted that the statement should be found violative of
Section 8(a)(1) of the Act as well.’’
The General Counsel improperly requests an unfair labor
practice finding. First, the General Counsel stated on the
record that he was not seeking to amend the complaint re-
specting the matter. (1:78). That is, at most it would be used
to show animus. Indeed, the General Counsel suggested that
it was only a preliminary matter. (1:78). Second, the General
Counsel makes no contention the matter was fully litigated.
In fact it was not fully litigated. The question the General
Counsel asked Biagini on cross-examination was not ob-
jected to, but it is not at all clear that the question related
to the early December statement which Johnson attributes to
Biagini.
I deny the General Counsel’s motion for an unfair labor
practice finding. Moreover, although I credit Johnson, I find
the evidence insufficient to find animus because Biagini
never stated whether he was talking about work problems
(such as wandering), union activities, or something else.
b. Discussion
Other than where I have found otherwise, I credit
Burnside, Cobb, and Younts. Except for his January con-
versation with Cobb, Vass, I find, never spoke to any of the
three about being away from their work areas. Similarly, I
find that Biagini never spoke to them about the matter either.
It was not until early January that Vass deemed he had a
problem which warranted his addressing employees. He con-
cedes that several employees were doing the wandering. His
remarks at the January safety meeting were, I find, his first
statement on the topic to anyone. The complaint does not al-
lege that KEC’s restricting employees to their work areas
was designed to inhibit union organizing.
The record does not show whether Cobb, thought that the
rule Vass announced at the January safety meeting did not
apply if someone was seeking materials. As seeking mate-
rials would be a likely excuse, and as Biagini’s job including
furnishing materials, it seems unlikely that Cobb would have
misunderstood Vass’ announced order for employees to stay
in their work areas. Factually, therefore, I find that Cobb vio-
lated Vass’ rule on that January occasion. Discounting most
of Vass’ testimony, however, I later must decide whether
Vass seized on this as a pretext to mask an unlawful motive.
F. Analysis and Conclusions
1. Employer knowledge and motivation
a. Facts
Biagini admits that the morning after the December 9
union meeting, or the morning of December 10, he told Su-
perintendent Vass that he had attended a union meeting at
Cobb’s house. This occurred in a ‘‘normal’’ conversation as
they were drinking coffee. According to Biagini, he gave no
further details, not even to say that employees were organiz-
ing, and Vass asked no questions. After that occasion, ac-
cording to Biagini, he had no further conversation with Vass
or KEC officers concerning union organizing. (1:298-299,
311-312). Aside from testifying evasively, Biagini did not
testify with a favorable demeanor. I do not credit him.
Superintendent Vass places the conversation with Biagini
the morning of Monday, December 14. (1:261, 277-278). Ac-
cording to Vass, Burnside was not at work (Kidd’s records
summary, RX 3, shows that Burnside was absent on Decem-
ber 16, not December 14), and Vass asked if Biagini had
seen him. Biagini said he had seen him over the weekend at
a union meeting at, as Vass recalls, Younts’ home. Vass
claims that Biagini did not identify all the attendees, or de-
scribe the purpose of the meeting. That supposedly is the
only conversation which Vass has had on this project with
1187KIDD ELECTRIC CO.
Biagini or anyone about union. And on January 13 when he
laid off the three, he did not know they were involved in
union activities, but he did know that they ate lunch together.
(1:261-263, 276-277). Vass testified with an unpersuasive de-
meanor, and I generally do not believe him.
b. Discussion
As I discussed earlier, at the hearing I granted KEC’s mo-
tion to dismiss complaint paragraph 8(e), an 8(a)(1) count al-
leging that on January 7, 1993, Superintendent Pete Vass
threatened employees with termination if they engaged in
union activities. That was the telephone conversation, recall,
which Younts overheard in the trailer. Younts heard Vass
promise ‘‘Tony’’ that he would ‘‘get rid of the troublemakers
as soon as I can.’’ Not finding enough in Younts’ account
to show that Vass was referring to Burnside, Cobb, and
Younts when he promised ‘‘Tony’’ to ‘‘get rid of’’ the
‘‘troublemakers,’’ I dismissed the allegation. (1:196). In dis-
missing the allegation, I assured the General Counsel that he
could include the incident in his argument in support of the
8(a)(3) allegation because then ‘‘all circumstances will be
considered.’’ That is to say, as of the motion to dismiss I
did not have the benefit, if any, of the all the evidence which
would follow.
Although KEC was on notice that I would consider this
incident in relation to the discharge allegation, neither Kidd
nor Vass referred to this allegation in their testimony. Thus,
my dismissal of the 8(a)(1) allegation as to this event does
not insulate KEC from my considering this incident when I
weigh the evidence on the 8(a)(3) layoff allegation. More-
over, one reasonably would expect that Vass and Kidd, when
testifying, would explain, deny, or admit the attributed ‘‘trou-
blemakers’’ conversation. They did not. Their failure to deny
or explain, I find, constitutes an admission that the conversa-
tion occurred, and that Burnside, Cobb, and Younts were
‘‘troublemakers’’ because of their union organizing at the
jobsite.
First, some law about motions to dismiss and waiver. As
earlier noted, when the General Counsel rested the Govern-
ment’s case-in-chief, KEC moved to dismiss, among other
allegations, the 8(a)(3) layoff allegation. (1:205-207). I de-
nied the motion. (1:207). At that point KEC was faced with
making an election: it could rest on its motion, or it could
proceed with its case-in-chief. It could not eat its cake and
keep it too. A respondent or defendant tests the sufficiency
of its motion to dismiss by resting on it. See, for example,
American Bakeries Co., 280 NLRB 1373, 1374 (1986). If a
respondent or defendant, rather than resting on its motion,
proceeds with its own case-in-chief, then it waives its motion
to dismiss and the trier of fact weighs all the evidence in the
entire record in reaching a decision on the merits. U.S. Post-
al Service Board of Governors v. Aikens, 460 U.S. 711, 103
S.Ct. 1478, 31 FEP Cases 609 (1983); Greco & Haines Inc.,
306 NLRB 634 (1992); Reed v. State, 794 S.W.2d 806, 809
(Tex. Crim. App. 1990). By proceeding here rather than rest-
ing, KEC waived its motion, and I have weighed all the evi-
dence in the entire record in reaching my decision.
Now having the benefit of the entire record, including ob-
serving Kidd and Vass testify (they generally testified
unpersuasively), I find that on January 7, when Younts over-
heard Superintendent Vass speaking over the telephone to
‘‘Tony,’’ Vass was speaking to KEC’s vice president, Tony
Garland Kidd. I further find that when Vass promised Kidd
that he would get rid of the ‘‘troublemakers,’’ Vass was re-
ferring to union activists Burnside, Cobb, and Younts. The
only evidence of any trouble or troublemakers on the job
other than the organizing which Cobb, Younts, and Burnside
were spearheading was the alleged wandering. However, the
wandering became such a general problem with so many em-
ployees that Vass spoke about it to all employees at the early
January safety meeting. That is, Burnside, Cobb, and Younts
were not the focus of the wandering problem. To ‘‘get rid
of’’ the wandering troublemakers Vass would have had to
lay off many more than the three. I therefore find that his
telephone reference to ‘‘troublemakers’’ was not to wander-
ers on the job.
Vass never otherwise directly indicated that he considered
union organizing to be trouble or union activists to be trou-
blemakers. Indeed, although Cobb listed his union member-
ship on his job application, Vass said nothing about it and
hired Cobb on the spot. (1:172-173). However, a union mem-
ber is not someone unusual on a construction job. But when
an employee becomes active in organizing that employer,
perspectives may change. Moreover, even if Vass was in-
clined to tolerate a union member on the job, there is no evi-
dence Vice President Kidd was so inclined. I need not specu-
late on this. Finding that the telephone conversation oc-
curred, it simply is a matter of determining who Vass was
describing as troublemakers. It was not those wandering on
the job. The only other ‘‘trouble’’ on the job was the union
organizing. Contrary to Vass’ denial, I find that Biagini’s re-
port to Vass on December 14 included the fact that the meet-
ing at Cobb’s home over the weekend was about union orga-
nizing among KEC’s employees at the jobsite. That organiz-
ing, I find, was the trouble, and I find that Vass, in speaking
with Vice President Kidd on January 7, used the term ‘‘trou-
blemakers’’ as a code word for the union activists, Cobb,
Younts, and Burnside. Six days later Vass kept his word by
‘‘getting rid of’’ the three.
I also find it more Freudian by Kidd, rather than a poor
choice of words by him as he was discussing the staffing
levels, when Kidd testified (1:217) that on January 13 ‘‘we
got rid of’’ Burnside, Cobb, and Younts. I find that Kidd’s
unwitting use of that particular phrase, rather than using a
term of layoff, ties directly to his January 7 telephone con-
versation with Vass. In that telephone conversation, I find,
Kidd instructed Vass to ‘‘get rid of’’ the union ‘‘trouble-
makers.’’ Vass promised that he would, and he did shortly
thereafter. The Board frequently has found ‘‘troublemakers’’
to be an epithet used to signify distaste for union activists.
See Kinder-Care Learning Centers, 299 NLRB 1171, 1175
fn. 27 (1990).
At his peril a man disregards the ancient wisdom instruc-
tions. Some 4,200 years ago, Ptahhotep (Pharaoh Isesi’s vi-
zier) delivered this instruction among his teachings: ‘‘Do not
scheme against people.’’ Miriam Lichtheim, 1 Ancient Egyp-
tian Literature 64 (1975, Univ. of Calif. Press).
2. Prima facie case not rebutted
As discussed, KEC had knowledge of the union organizing
and of the leaders Cobb and Younts. Burnside was identified
with the leaders because he invited Biagini to the December
9 meeting, attended that meeting himself, ate lunch with the
other two, and was their ‘‘buddy.’’ KEC also had expressed
1188 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
animus (troublemakers) and a promise to ‘‘get rid of’’ the
union troublemakers. Timing is an important factor here, for
in only 6 days following Vass’ promise to Kidd to get rid
of the troublemakers, he did so. Pretext is shown respecting
KEC’s failure to follow its past practice of retaining its me-
chanics during slack times and work them on odd jobs until
the regular roughing-in became available. I do not credit
Kidd’s denial that there was nothing for them to do. The fact
that KEC was busy hiring employees in early January dem-
onstrates that in fact KEC did have work to do. Although
they were helpers, for the most part, they also participated
in some of the roughing-in work. Their retention on the pay-
roll, even if a layoff were necessary, deprived the three
discriminatees of work. I do not credit Kidd or Vass that the
difference in wage rates was an important factor in their re-
tention and the layoff of the three. The overriding factor, I
find, was KEC’s desire to get rid of the three union trouble-
makers.
Pretext is also shown respecting Burnside on the matter of
Vass’ including him in the category of poor attendance. Fal-
sity is also present in Vass’ January 21 statement to Burnside
that Vass was not hiring when in fact he clearly knew that
he would be hiring a replacement for Wayne Frazier and did
so 4 days later.
I therefore find that when KEC laid off the three on Janu-
ary 13, a motivating factor was their organizing activities on
behalf of IBEW Local 342. In short, I find that the Govern-
ment has shown a prima facie violation of the statute. When
the Government has made that prima facie showing, the bur-
den shifts to the Respondent, KEC here, to demonstrate by
a preponderance of the evidence, in the nature of an affirma-
tive defense, that it would have laid off the three even in the
absence of any union activities. I find that KEC failed to
carry its burden.
For the most part, the stated reasons for selection have
been found to be pretexts. Poor attendance did not apply to
Burnside, yet he was lumped into that category. He was in-
cluded, I have found, because KEC viewed him as one of
the organizers, and indeed he was even though he is not an
officer of IBEW Local 342. Although Vass did speak once
to Cobb about wandering, after the January group meeting,
I find that he did not do so to the other two. Vass’ effort
to lump the other two into that category with Cobb as having
been spoken to after the January safety meeting demonstrates
that Vass was stretching in order to get all three on this
ground. In other words, Vass used it as a pretext. Absent the
union activities, Vass would not have selected any of the
three for layoff, even if a layoff would have occurred.
Overall it is clear that KEC seized on whatever available
pretexts existed to mask its desire to ‘‘get rid of’’ the three
union activists. I find that, consistent with KEC’s past prac-
tice, Burnside, Cobb, and Younts, absent their union activi-
ties, would have remained on the payroll, pulling heavy
cable and performing odd jobs for a few days until the other
rough-in became available. To the extent that any layoff
would have occurred on January 13, recently hired helpers
would have been laid off. I find that KEC has failed to carry
its burden to show that it would have terminated the three
even in the absence of any union activities. Accordingly, I
find that, as alleged, KEC violated Section 8(a)(3) and (1)
of the Act by terminating them on January 13, 1993. KEC
must reinstate them and make them whole, with interest.
CONCLUSION OF LAW
By terminating Donald W. Burnside Sr., Arthur Wayne
Cobb, and Allan B. Younts on January 13, 1993, Respondent
KEC has engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(3) and (1) and 2(6)
and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily discharged em-
ployees, it must offer them reinstatement and make them
whole for any loss of earnings and other benefits, computed
on a quarterly basis from date of discharge to date of proper
offer of reinstatement, less any net interim earnings, as pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
The UNCG construction project involved here no doubt
will have been completed by the time this decision, if af-
firmed, becomes final. The question arises, however, whether
the three discriminatees (Burnside, Cobb, and Younts) would
have been transferred to any other construction project where
KEC may have been working or about to work. A related
question is when backpay would have ended at this job (in
the absence of a transfer policy) absent the discrimination
against the three. Under standard Board policy, such ques-
tions are deferred to the compliance stage. Trans Tech Elec-
tric, 293 NLRB 711 fn. 1 (1989). The policy applies to the
construction industry. Fluor Daniel, 304 NLRB 970, 981
(1991) (job applicants); Dean General Contractors, 285
NLRB 573 (1987) (dischargee), as well as to other industries.
Daka Inc., 310 NLRB 201 and fn. 2 (1993); Mark Industries,
296 NLRB 463 fn. 3 (1991); Dean General Contractors,
supra at 575.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, Kidd Electric Company, Greensboro,
North Carolina, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Laying off or otherwise discriminating against any em-
ployee for supporting IBEW Local 342 or any other union.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Donald W. Burnside Sr., Arthur Wayne Cobb,
and Allan B. Younts immediate and full reinstatement to
their former jobs or, if those jobs no longer exist, to substan-
1189KIDD ELECTRIC CO.
3 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
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.’’
tially equivalent positions, without prejudice to their seniority
or any other rights or privileges previously enjoyed, and
make them whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them, in the
manner set forth in the remedy section of the decision.
(b) Remove from its files any reference to the unlawful
terminations and notify the employees in writing that this has
been done and that the terminations will not be used against
them in any way.
(c) Preserve and, on 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.
(d) Post at all of its jobsites or other hiring facilities within
a 75-mile radius of Greensboro, North Carolina, copies of the
attached notice marked ‘‘Appendix.’’3 Copies of the notice,
on forms provided by the Regional Director for Region 11,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, 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 vio-
lated 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 representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT lay you off or otherwise discriminate
against any of you for supporting IBEW Local 342 or any
other union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer Donald W. Burnside Sr., Arthur Wayne
Cobb, and Allan B. Younts immediate and full reinstatement
to their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their se-
niority or any other rights or privileges previously enjoyed,
and WE WILL make them whole for any loss of earnings and
other benefits resulting from their January 13, 1993 termi-
nations, less any net interim earnings, plus interest.
WE WILL notify each of the three that we have removed
from our files any reference to his discharge and that the dis-
charge will not be used against him in any way.
KIDD ELECTRIC COMPANY