Korellis Roofing, Inc.

National Labor Relations Board - Administrative Judge Opinions

Nov 12, 2003

13-CA-040945 (N.L.R.B. Nov. 12, 2003)

JD(ATL)—72—03
Hammond, IN

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE

KORELLIS ROOFING, INC.

and Case 13-CA-40945

CHARLES E. DIXON, an Individual

HyeYoung Banc-Thompson, Esq. for the
Government.1
Stephen M. Maish, Esq. for the Company.2
Charles E. Dixon, Pro Se.3

BENCH DECISION

Statement of the Case

WILLIAM N. CATES, Administrative Law Judge. This is a wrongful
discharge case. At the close of a two day trial in Chicago, Illinois on September 24,
2003, and after hearing closing argument by Government and Company Counsel, I issued
a Bench Decision pursuant to Section 102.35(a)(10) of the National Labor Relations
Board’s (herein Board) Rules and Regulations setting forth findings of fact and
conclusions of law.

For the reasons, specifically including credibility determinations, stated by me on
the record at the close of trial, I found the Company violated Section 8(a)(3) and (1) of
the National Labor Relations Act, as amended, (herein Act) by on or about November 11,
2002, discharging its employee Charging Party Dixon because the Company believed he
filed a grievance and assisted the United Union of Roofers, Waterproofers and Allied
Workers, Local Union No. 26. I rejected, as post hoc rationalizations, the various
asserted justifications by the Company, such as it was downsizing and moonlighting
activity by Charging Party Dixon. I concluded the Company failed to meet its burden of
establishing it would have discharged Dixon even in the absence of any protected
conduct on his part.

1 I shall refer to Counsel for General Counsel as the Government
2 I shall refer to Respondent as the Company.
3 I shall refer to Charging Party as Dixon or Charging Party Dixon.

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I certify the accuracy of the portion of the transcript, as corrected,4 pages 388 to
424 containing my Bench Decision, and I attach a copy of that portion of the transcript,
as corrected, as Appendix B.

Conclusions of Law

Based on the record, I find the Company is an employer engaged in commerce
within the meaning of Section 2(2) (6) and (7) of the Act; that it violated the Act in the
particulars and for the reasons stated at trial and summarized above and that its violations
have affected and, unless permanently enjoined, will continue to affect commerce within
the meaning of Section 2(2) and (6) of the Act.

Remedy

Having found the Company has engaged in certain unfair labor practices, I find it
must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act. The Company having discriminatorily discharged its
employee Charles E. Dixon, I recommend he, within 14 days from the date of the Board’s
Order, be offered full reinstatement to his former job, or if his former job no longer exists
to a substantially equivalent position, without prejudice to his seniority, or any other
rights or privileges previously enjoyed, and make him whole for any loss of earnings or
other benefits suffered as a result of the discrimination against him with interest.
Backpay shall be computed in accordance with F.W. Woolworth Co., 90 NLRB 289
(1950), and interest shall be computed in accordance with New Horizons for the
Retarded, 283 NLRB 1173 (1987).

On these findings of fact and conclusions of law and on the entire record, I issue
the following recommended:5

ORDER

The Company, Korellis Roofing, Inc., its officers, agents, successors and assigns
shall:

1. Cease and desist from:

(a) Discharging employees because they believe employees have filed
grievances or assisted the Union.

4 I have corrected the transcript pages containing my Bench Decision and the corrections are as
reflected in attachment Appendix C.
5 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Section 102.48 of the Rules,
be adopted by the Board and all objections to them shall be deemed waived for all purposes.
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(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their rights guaranteed them by Section 7 of the
Act.

2. Take the following affirmative action necessary to effectuate the policies
of the Act:

(a) Within 14 days of the Board’s Order offer Charles E. Dixon
reinstatement to his former position or if his former position no longer exists to a
substantially equivalent position without prejudice to his seniority or other rights or
privileges.

(b) Within 14 days of the Board’s Order remove from its files any
reference to Dixon’s unlawful discharge and within 3 days thereafter notify him in
writing this has been done and that his discharge will not be used against him in any
manner.

(c) Preserve, and within 14 days of a request, or such additional time
as the Regional Director may allow for good cause shown, provide at a reasonable place
designated by the Board or its agents all payroll records, Social Security payment
records, time cards, personnel records and reports, and all other records, including an
electronic copy of the records if stored in electronic form, necessary to analyze the
amount of any back pay due under the terms of this Order.

(d) Within 14 days after service by the Regional Director of Region 13
of the National Labor Relations Board, post at its Hammond, Indiana, facility copies of
the attached notice marked “Appendix B”.6 Copies of the Notice, on forms provided by
the Regional Director for Region 13 after being signed by the Company’s authorized
representative shall be posted by the Company and maintained for 60 consecutive days in
conspicuous places, including all places where notices are customarily posted.
Reasonable steps shall be taken to ensure that the notices are not altered, defaced or
covered by any other material. In the event that during the pendency of these
proceedings the Company has gone out of business or closed the facility involved in these
proceedings, the Company shall duplicate and mail, at its own expense, a copy of the
Notice to Employees, to all employees employed by the Company on or at any time since
November 11, 2002.

(e) Within 21 days after service by the Region, file with the Regional
Director for Region 13 of the National Labor Relations Board sworn certification of a

6 If this order is enforced by a Judgement of the 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 JUDGEMENT OF THE UNITED
STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR
RELATIONS BOARD”
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responsible official on a form provided by the Region attesting to the steps that the
Company has taken to comply.

Dated at Washington, DC

___________________________________
William N. Cates
Associate Chief Judge

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JUDGE CATES: This is my decision. The issue presented
in this case is whether the Respondent's discharge of
employee Charles E. Dixon is in violation of Section 8(a)(1)
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and (3) of the National Labor Relations Act. And on the
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entire record, including my observation of the demeanor of
the witnesses and after considering the parties helpful
closing arguments, I make the following.
The company is an Indiana corporation with an office in
place of business in Hammond, Indiana. The company admits
and I find that it is an employer engaged in commerce within
the meaning of Section 2(2) and (6) and (7) of the Act.
The parties admit and I find that the United Union of
Roofers, Waterproofers and Allied Workers Local Union No.
26 is and has been at all material times here in a labor
organization within the meaning of Section 2(5) of the Act.
The Government contends that Mr. Dixon was discharged
specifically because the company believed that he had filed
a grievance and assisted the Union and engaged in concerted
activities and that the company took the action it did in
order to discourage employees from engaging in these type
of activities. The company, on the other hand, contends
that it had nothing to do with his Union activities or lack
thereof. That the company has been on a program for some
time of downsizing their operation because of the sluggish
economy and that there were a number of factors that
brought about the termination of Dixon and that the last
straw or the straw that broke the camel's back was his
performing an unauthorized side job. And that was the point
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that brought to a head the decision to terminate Dixon.
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Dixon is a seven year employee of the company and he
was fired on November 11, 2002. And about that fact there
is no dispute. For the last three or four years of his
employment, Dixon worked as a technician in the Service
Department under the supervision of Foreman Bruce Bailey.
The company installs or builds various types of roofs, such
as rubber, shingle, tile, gravel, heat welding and various
other types of roofing. While some of the co-workers of
the company may only be able to perform work on a limited
number of roof types, the Service Department employees are
expected to know how to service and/or repair any or all of
the types of roofs that are installed by the company.
The Service Department employees work year around in
all types of weather conditions and on all types of roofs in
need of repair. The company, which was established in 1960
by Union roofer, George Korellis, has from its inception
been a unionized company with its employees covered by a
collective bargaining agreement negotiated with the Union
by the Northwest Indiana Roofing Contractors Association an
employer trade representative group.
The party's most recent association negotiated
collective bargaining agreement is effective from June 1,
2000 until May 31, 2004. Dixon has been a member of the
Union for 19 years but has never held an official position
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with the Union.
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On or about July, August or perhaps September 2002,
Dixon was nominated along with five other individuals to
become a second business agent organizer for the Union.
The selection for that second business agent organizer
position has yet to be filled. During the same general
time period and perhaps for an extended time prior thereto,
Jeff Lussow was the Union Shop Steward at the company.
However, he was appointed in approximately mid 2002 to fill
in for a Union business representative that had suffered a
stroke and was there after elected as the Union's business
representative.
When Lussow became the business representative for the
Union, he resigned his position with the company and no
longer served as the Union Shop Steward for the represented
employees at the company. Business Representative Lussow
testified that while Dixon was never formally elected as
shop steward to replace Lussow, the employees looked at
Dixon as their Union Shop Steward. Dixon testified
employees brought their job related concerns to him.
Former employees Glenn Elkins and Jeffery Vaux
testified that after Business Representative Lussow left
the company, they and every one else of the employees at
the company assumed Dixon was the shop steward for the
employees.
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In the summer of 2002 the company had, among other
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jobs, two major roofing projects. One at the Harrison
School project and the other at the Valparaiso University
project. Lots of roofers were needed so Dixon, among
others, was assigned to work on one of these projects. At
the time the projects were getting underway, the students
were returning for classes in those particular schools.
And the parties contracting for the roofing service asked
the company not to fire up their hot tar kettles until
after the students had completed their class attendance for
the day. This was not feasible, however, and the company
with agreement with the university and the school did not
fire up their hot tar kettles until approximately 2:00 p.m.
in the afternoons.
As a result of this later time, the employees had a
late start time for their work day, which commenced around
10:00 to 11:00 a.m. and then worked until 6:00 to 7:00 p.m.
in the evening. The parties collective bargaining
agreement states the work day shall be from 8:00 a.m. to
noon and from 12:30 p.m. until 4:30 p.m. five consecutive
days per week with the work week starting at 8:00 a.m. on
each Monday and ending at 4:30 p.m. on the following
Friday.
All work was to be performed within the regular week
with overtime being paid at one and-a-half times the
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regular hourly rate. The employees could start earlier
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than 8:00 a.m. in the hot summer months to avoid
uncomfortable conditions without a penalty to the
contractor. However, the one and-a-half times regular
hourly rate was to be paid for work performed after eight
hours for any one working day as directed in the collective
bargaining agreement.
Dixon testified various employees complained to him
about the late start time without them being paid overtime
after 4:30 p.m. Dixon discussed the concerns of certain of
the employees and mentioned it to Business Representative
Lussow. On August the 23rd, 2002, Union Business
Representative Lussow wrote company president, Pete
Korellis, that the Union had been notified that the company
was working bargaining unit employees, “unusual,”
hours and if that was the case, the Union
would file a grievance.
A grievance was, in fact, filed on September 3, 2002
and referred on that date to the Joint Adjustment Board for
the scheduling of a hearing. The grievance was heard by
the Joint Adjustment Board on September 16, 2002 with a
decision that was adverse to the company. Then a letter was sent
dated October 4, 2002, addressed to the Northwest Indiana
Roofing Contractor's Association and the Union, in which the
company's attorney asserted certain irregularities in the
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Joint Adjustment Board's action.
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The Joint Adjustment Board, without conceding any
errors, agreed to hold a second hearing on the same
grievance. And that hearing was held on October 28th, 2002
again with a finding against the company. The company was
ordered to, by November 15th, 2002, pay time and-one-half
to those company employees that worked on the Harrison
School project and the Valparaiso University project after
4:00 p.m. daily.
Dixon testified that about one to two weeks before the
original grievance was filed on September 3, 2002, he met
with company president Korellis to see if the late start
overtime matter could be resolved gentleman to gentleman
without a grievance. Dixon testified company president
Korellis did not think the collective bargaining agreement
clearly and explicitly required the overtime payment and
the employees simply wanted to be paid.
Dixon testified nothing was resolved in his meeting
with company president Korellis. Dixon testified that
approximately two weeks before he was fired, former company
owner, George Korellis, spoke with him at the office in the
presence of Rich Perez. According to Dixon, George
Korellis was upset about the late start time situation and
told Dixon that he, Dixon, was the Union's Shop Steward and
that this would never have taken place if he had not filed
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the grievance.
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On or about November 9, 2002, Dixon helped fellow
employee Chuck Livingston do an un-bid roofing job for the
mother of one of Livingston's friend. The collective
bargaining agreement addresses the issue of any employee,
“moonlighting,” in such a manner and
provides that either the company or the Union may file a
grievance against any such moonlighting work by any
individual employee.
Company President Korellis stopped by the project and
spoke with Livingston and although Dixon was on the back side
of the home, his truck was parked in full view. As soon as
company President Korellis left where the moonlighting work
was taking place, Dixon also left the work sight. Dixon
telephoned Union Business Representative Lussow. Lussow
stated company President Korellis had already telephoned
him about the situation.
Lussow testified company President Korellis telephone
him on November 9, 2002 and left a message on his telephone
that said, Jeff, this is Pete. Dixon and Livingstone are
doing a job on the side. There is the grievance on the
start time and his running for the second BA position.
Ponder it and give me a call back.
Union Business Representative Lussow saved the message
for a period of time but testified it was thereafter purged
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from his phone. Dixon testified he learned from his
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supervisor, Bailey, that he was to meet with company
President Korellis on Monday morning, November 11, 2002.
Dixon testified he met with President Korellis and Korellis
told him he was going to let him go, that they needed to
get away from each other and that the company was
downsizing.
Dixon testified he was shocked and although he could
not remember everything that he said, he did use some
profanity and may have even used the "f" word. Dixon
testified he telephoned company President Korellis that
afternoon, November 11th, 2002, and apologized for his
language and asked for a better explanation as to why he
was fired.
Dixon testified he met with company President Korellis
on Friday, November the 15th, 2002, at Korellis's office.
Dixon said he turned in some t-shirts he had that belonged
To the company along with the company’s telephone and the
company provided him his last paycheck. Dixon testified as
he was about to leave Korellis's office, Korellis asked
that he wait a minute and acknowledged he owed Dixon a
better explanation for his termination.
According to Dixon, Korellis told him that he fired him
because he was too vocal on Union issues, that he gave his
supervisor Bailey a hard time, that he made the company's
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safety coordinator look bad at safety meetings and that the
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Service Department's secretary, Sherry, did not like him.
Dixon protested that if he was such a bad employee, why had
the company not talked to him about his shortcomings.
On Saturday, November 15 or 16, whichever day Saturday
was, 2002, Dixon testified that he and company President
Korellis met at the International House of Pancakes in
Hammond, Indiana. Korellis told Dixon he had spoken with
his father and other management members and they were going
to give Dixon another chance as a roofer at the company at
the American Business Center Project under the supervision
of Supervisor Bishop the following Monday morning, November
17, 2002.
Dixon testified he told Korellis he needed to speak
with his wife about the offer and if he accepted the offer,
he would be at the project site on Monday morning in time
to commence work. But if he was not going to accept the
offer, he would call company President Korellis on Monday
afternoon. Dixon testified he declined the job because it
would have meant the loss -- Dixon explained he received
lots more hours of work as a service department employee
than he would have as just a roofer. Dixon testified he
had never been disciplined or warned about his job
performance or attendance.
Union Business Representative Lussow testified that
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when Dixon worked on his, Lussow's crew, Dixon was an
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excellent employee with no problems. Lussow testified that
any employee that made it to the service crew was the best
of the work force.
Lussow testified that former owner George Korellis had
an office at the company and came to work every day.
Lussow testified that George Korellis attends company
safety meetings. Dixon testified George Korellis attended
meetings with customers and visited various work sites.
Former employee Glenn Elkins testified he attended a
safety meeting of the company in April, 2003. Elkins
testified that all the employees wanted to start work
earlier in the morning than they were starting. According
to Elkins company president, Pete Korellis, stated he
didn't want another grievance filed, that the company would
go by the collective bargaining agreement on starting
times. Elkins testified former owner, George Korellis,
stated it didn't matter any more, that the trouble maker is
no longer here. Elkins believed George Korellis was
talking about Dixon.
Former employee, Jeffrey Vaux testified about the
April, 2003 safety meeting. He said start times were
discussed and that company president Pete Korellis wanted
the employees to agree by vote so that another grievance
could not be filed. Vaux stated company president Korellis
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did not want the problem to come up again. Vaux testified
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George Korellis stated the employees should not have a
problem voting on the start time because they got rid of
the trouble maker. Vaux testified, everyone laughed. Vaux
said, George Korellis could not have been referring to
anyone other than Dixon.
The company presented six witnesses in its defense.
The company asserts Dixon's discharge of November 11, 2002
did not violate the Act in any manner. As I indicated
earlier, the company contends it is and has been in the
downsizing mode due to the state of the economy.
Company president Pete Korellis testified he drew up a
tentative plan for downsizing on July 19, 2002 in which he
indicated that certain employees would be considered for
possible lay-off. Included in that July 19, 2002 potential
list for lay-off was employee Dixon. Company president
Korellis also listed possible equipment sales in his July
19, 2002 outline for possible downsizing. Company
president Korellis stated Dixon was terminated for a
variety of reasons related to attendance, work performance,
inability to get along with co-workers and other related
items, but that none of the reasons for his discharge
related to any Union activities or lack, thereof, on the
part of Dixon or any grievance filing by Dixon.
Company vice president of operation, Jeffrey Tharp has
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been with the company for 17 years with 12 of those years
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as superintendent for the company and the last four or so
years as vice president of operations. Tharp had
occasion to observe Dixon's work performance and sized
Dixon up as being loud, obnoxious and not wanting to follow
orders.
Tharp explained that in 1998 he was trying to tell
Dixon on the telephone how the architectural project
manager wanted the roofing job on the specific project done
in a very specific manner. Tharp stated that Dixon didn't
want to perform in the manner he was asked to and not
realizing that his telephone was still on stated of Tharp,
that he didn't have to listen to that fat fucker Tharp.
Tharp spoke with company president Peter Korellis about the
situation and told Korellis the company didn't need someone
like that working for them. Tharp stated Dixon was
transferred to the service department in 1998 but was still
more of a problem that he was worth and that he told
company president Korellis they didn't need to keep Dixon.
Tharp testified Dixon did not get along well with the
other workers in the service department. Tharp testified
company president Korellis telephoned him on November 9,
2002 and told him he had just caught Dixon moon-lighting on
a side job and that Dixon had done enough. Tharp told
Korellis it was fine with him to fire Dixon. Tharp said
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that was the final straw with respect to Dixon, along with
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his lack of respect for his co-workers and his attendance
and work performance problems.
Service department administrator Sharon Osborne
testified she interacted with Dixon on a daily basis and he
was loud, obnoxious and a know-it-all. Osborne stated
Dixon thought he knew everything and that no one else knew
anything. Osborne testified she had heard Dixon use
profanity on November 11, 2002, the day he was discharged.
Service department ten year employee James A. Booker
testified he worked many jobs with Dixon in the service
department and that Dixon was a very good roofer, but that
he belittled people and wanted everything done his way.
Booker said Dixon carried his weight as far as the work was
concerned but he would gripe and say, that he didn't need
this shit, he could get a job anywhere. Booker said
Dixon's use of profanity was about on average with what the
other roofing employees used. Booker testified Dixon used
a lot of profanity on November 11, 2002 when he was
discharged. Booker testified Dixon was saying, fuck this,
fuck that, and that he didn't need this job. Booker did
not hear company president Korellis use any profanity on
that occasion.
Service manger Bruce Bailey was Dixon's immediate
supervisor in the service department at the company.
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Bailey testified Dixon had an attendance problem, that
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occasionally he would be a few minutes late and on other
occasions, maybe twice a month, Dixon's alarm would not go
off and he would come to work late. Bailey said this
happened the entire time Dixon was in the service
department. Bailey stated Dixon was a very good roofer,
but that Dixon was unhappy because the service
representatives were not paid a foreman's wage.
Bailey stated that one worker, namely James Booker, did
not like to work with Dixon. Dixon had said Booker was not
a good worker. Bailey said he
mentioned these matters concerning Dixon, to company
president Korellis. Bailey also testified that the matter
of the work start and the grievance related to the work
start was discussed in safety meetings.
Company president Korellis testified he and his wife
currently own the company founded by his father, George
Korellis. Korellis owned the company at the time Dixon
started to work for the company. Korellis testified he
started receiving complaints about Dixon even before Dixon
was transferred to the service department.
Korellis stated that vice president of operations, but
then superintendent, Tharp complained that Dixon was a
difficult employee, that he didn't follow instructions,
that he talked down to his supervisor and that his fellow
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employees didn't like him.
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Korellis testified that after Dixon was transferred to
the service department he received complaints from service
manager Bailey that Dixon was difficult to deal with, that
he missed more time than other employees, and that one
occasion Dixon verbally attacked Bailey. Korellis said he
overheard a telephone call from Dixon to Bailey complaining
about, the fucking shit of the service technicians not
getting foreman's pay. Korellis testified he told Dixon
that such language was inappropriate and he didn't want to
hear it anymore.
Korellis testified he began in July, 2002 to seriously
consider down-sizing his company. Korellis said that he
agreed with the statement of one of his employees that the
company was getting bigger and sloppier.
Company president Korellis testified that on November
9, 2002 he received a telephone call from his father,
George Korellis, that George Korellis thought he observed
some of the Korellis employees doing a side job near the
company's office. President Korellis drove by and observed
Chuck Livingston on the ground and he thought he also saw
Dixon. Korellis said he told Livingston he didn't go
looking for this type thing, but when they did it right
next to his office, what did he expect from them. Korellis
said he thought it was hypocritical for someone that hoped
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to be the next BA for the Union to be out doing side jobs.
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Pete Korellis stated he telephoned Union Representative
Lussow and left a message saying two guys were doing a side
work next to his shop and asked what they were going to do
about it. Company president Korellis testified that Union
Business Representative Lussow called him back and said
they would have to check in to whether the job was bid or
not. Company president Korellis talked the situation over
with service manager Bailey and vice president of
operations Tharp. Tharp would like to see Dixon gone and
Bailey said it was fine with him, that he had had it with
Dixon.
Korellis said he made the decision on Saturday,
November 9, 2002 to terminate Dixon, and told Dixon on
Monday, November 11, 2002. Korellis met with Dixon on
Monday and told him he was letting him go, that it was too
much work to keep him. Korellis told Dixon he needed the
company's telephone to which Dixon responded, not until he
had gotten his money. Dixon then began to say, he could not
believe this, and according to president Korellis started
saying, fuck this, fuck that. So he asked Dixon to leave
the company's property.
Korellis stated he did not use any profanity and never
at any time gave as a reason for Dixon's termination that
he was too vocal for the Union. Company president Korellis
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also testified that Dixon's discharge had nothing to do
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with the grievance that was filed related to the start
times for the employees at the company. Company president
Korellis testified he was in no way upset about the
grievance and that he had no idea nor did he care who filed
the grievance. Korellis said he welcomed the grievance
because the parties needed to get the contract language
interpreted or clarified so that he would better know how
to bid the jobs.
Former company owner, George Korellis, testified that
he had no conversations with Dixon or in Dixon's presence
where the subject matter of the grievance being filed was
attributed in any manner to Dixon. Company president
Korellis testified that on Wednesday, November 13, Dixon
asked in a very calm manner if they could work out the
situation in any manner. Dixon talked about his family and
Korellis stated he did not like to be put in a position
like this.
Korellis testified he met with Dixon at the
International House of Pancakes on Saturday, November 16,
2002 and offered Dixon a field roofer's job with the
company at the same hourly rate and the same hourly
benefits. According to company president Korellis, Dixon
agreed to report for work on Monday, November 18, 2002, but
failed to show for work.
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Company president Korellis testified his father, George
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Korellis, came to work every day and acted as a "glorified
gopher" for the company. He delivers and picks up checks,
obtains construction permits, goes with the residential
appraiser to do appraisals and attends most company
meetings.
Former company owner George Korellis testified that he
maintained an office at the company and insisted that he
had not retired, that he had simply slowed down
considerably since selling any part of the company he owned to
his son, company president Pete Korellis. Former company
owner, George Korellis, said that based on his gray hair
and his long experience with the company that employees as
well as management and supervision sought his advice on
matters related to work, and when they did, he provided it.
This case, as in most cases, requires credibility
resolutions. And in arriving at my credibility resolutions
I state that I carefully observed each of the witnesses as
they testified and I have utilized those observations at
arriving at the facts that I rely on, herein. I've also
considered each witness's testimony in relation to other
witness's testimony, and in light of the exhibits that have
been presented in this case. If there is any evidence that
might seem to contradict the credited facts that I shall
set forth and rely on, I have not ignored such other
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evidence, but rather have discredited or rejected it as not
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reliable or trustworthy. I have considered the entire
record in arriving at the facts, herein.
I shall first set forth the facts and then I will apply
those facts that I find to be the facts to the applicable
case law and then I will arrive at a conclusion with
respect to the ultimate issue of whether Dixon's discharge
violated the Act. I will only be looking at whether Mr.
Dixon's discharge violated the Act. I will not be looking
at any other matter.
In arriving at the credibility facts that I rely on, I
start with a building block of testimony and then weave the
evidence that I believe to be credible into that. The
testimony that set the tone for my credibility findings in
this case was given by service manager Bailey. Bailey
acknowledged that there were discussions of a start time and
the grievance related thereto, in the safety meetings.
Having that basic framework, I am persuaded that it was an
issue of considerable importance to the employees as well
as management and that it was, in fact, discussed.
For example, I credit Dixon's testimony that he visited
with company president Korellis approximately a week or two
before the grievance was filed to see if there could be any
resolution of this start time problem without any further
action needing to be taken.
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I am persuaded of the credibility of that for a number
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of reasons. I am fully persuaded that a number of
employees complained or spoke to Dixon about the situation
of having to start work later than normal on the Harrison
School and the Valparaiso University projects, that the
employees believed, rightly or wrongly so, that they were
entitled to time and a half pay after 4:30 p.m. per the
collective bargaining agreement between the parties.
I am persuaded, as testified to by at least two of the
General Counsel's witnesses, that the employees viewed
Dixon as the defacto job steward after the departure of the
former designated job steward, Lussow. I am persuaded that
Dixon discussed those matters with company president
Korellis and that the two of them were unable to arrive at
any resolution of it because, as Dixon testified, the
employees simply wanted to be paid per the contract and
company president Korellis believed that the contract was
not explicit enough to warrant the employees being paid for
overtime after 4:30 p.m. in the afternoons on those two
work projects.
A grievance was filed, there's no question about that.
And it was heard by the Joint Board. The Joint Board
rendered decision number one, unfavorable to the company.
And at the request of the company's attorney regarding what
the company perceived as irregularities in the original
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hearing and decision of the Joint Board, the company's
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attorney asked for another hearing. And another hearing
was granted, and again the issue was decided by a vote of
six to two against the company.
With the decision coming down the second time around on
or about the first of November directing that the company
pay the overtime payments to the employees by November 15,
2002. It is against that backdrop that I am persuaded that
this was an issue of great concern, not only to the
employees who didn't like starting late and wanted to be
paid when they started late, and the company that they
wanted to get this matter behind them and have an
interpretation or a ruling on this matter so that there
wouldn't be future grievances filed against the company
with respect to starting time.
I am persuaded that the issue of start time did not end
with this grievance that found the company was to pay the
employees for this additional time that they worked after
4:30. It appears that a number of the employees, if not a
majority or all of them, wanted to start their work day
even earlier than the collective bargaining agreement
called for, but the company, through its president
Korellis, believed that he could not do so without running a
foul of the contract.
So I am persuaded that this continued to be a problem
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between the employees, the company and by the nature of its
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position, the Union.
I find nothing sinister about the fact that employees
Chuck Livingston and Dixon were doing a moon-lighting or
side job on November 9. The company had no control over
that, they didn't plan that Mr. Dixon and Livingston would
be down moon-lighting on a job that, according to the
collective bargaining agreement, they could not be
performing.
I am persuaded that former company owner George
Korellis just happened to observe that these two
individuals, or whom he believed, there were individuals
out performing moon-lighting work. I am persuaded that he
called his son, president Korellis, and said you might want
to look into this.
I am persuaded that Korellis did, in fact, look into it
and determine that Livingston and Dixon were performing
work that constituted moon-lighting and that such was
addressed in the collective bargaining agreement that
employees, or for that matter even the company, would not
engage in any moon-lighting work.
And I am persuaded that the company made a decision at
about that time to discharge Dixon and that it did, in
fact, and no one disputes that fact that he was discharged
on November 11, 2002. I am persuaded that during the
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discharge, the initial discharge interview, that company
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president Korellis told him he was letting him go and that
employee Dixon was, using his words, shocked and that he,
in fact, did use profanity as a result of being told that
he was discharged. I am persuaded that his profanity was
vocal and loud because Dixon conceded that he used
profanity. You have company president Korellis testifying
that he used profanity and other employees overhearing his
using profanity.
I am persuaded that Dixon did, as he testified, called
the company later and apologized for his profanity and
asked that he be provided additional or better reasons for
his termination. I am persuaded that Dixon and company
president Korellis met and I am persuaded they met on a
Wednesday. Whether they met on a Wednesday or Thursday is
of no great significance as far as the outcome of this
case. I am persuaded that cooler heads were prevailing at
that time and that company president Korellis outlined to
Dixon the reasons for his discharge.
I fully persuaded that he outlined to him that he had
trouble getting along with secretary Sharon Osborne, that
he had given his supervisor Bailey a hard time, that he had
made the safety officer look small at a safety meeting, and
that he was too vocal in his support of the Union.
The reason I conclude that, even in the face of company
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president Korellis' vigorous denial, is that it fits into
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the overall pattern of concern that was happening between
the employees, the company and the Union. There was this
irritant of the starting time, where the Union had
protested even by a grievance that the company couldn't
start late without paying overtime. And then the other
side of the coin that a number of the employees wanted to
start even earlier but could not because company president
Korellis felt he could not do so because of the contract.
I am persuaded that former owner George Korellis is, as
alleged in the complaint, an agent of the company for the
following reasons. There is no dispute that former owner,
George Korellis, still maintains an office at the company.
I am persuaded that any employee observing that this
individual still has an office at this facility must at
least have some authority and speak with some agency status
on behalf of the company.
I am persuaded that George Korellis' function with the
company is not as minimal as company president Korellis
would indicate that it was, that the former owner was
simply a "glorified gopher". Company, former company owner
George Korellis was very quick to point out that he had not
retired from this facility, that he had merely slowed down
considerably, that he still provided advice to the work
force as well as management, that he obtained permits for
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the construction projects that the company performs.
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Even assuming that obtaining a permit is not that
great a task; that you simply take a contract that the
company has to a local governing authority and obtain a
permit to do the work, employees observing or knowing of
this could, in my opinion, not help but conclude that
former owner George Korellis still maintained authority and
a position of influence with this company, this company
that he founded and previously owned.
I am persuaded that George Korellis’ going with the
designated appraiser to residential properties to assist in
performing the appraisal and preparing a bid is functioning
in a manner that anyone observing as an employee would
conclude that he still had influence with this company.
I am persuaded that George Korellis' visiting the work
projects, which he said he did on a daily basis, and that
he tried his best to speak with each of the employees and
the managers on a daily basis. And I am persuaded that his
visiting with the employees and with management was more
than just to say, good morning and how is your wife and
family doing, because former owner Korellis points out, he
has a lifetime of experience in this work and that
employees and management openly and actively solicit and
he provides his advice.
I am persuaded that he meets the test for determining
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whether an individual is an agent of the employer and that
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test is the Common Law Agency Principle Test that an
individual of the employer would, under all the
circumstances, be reasonably believed by employees that he
reflected company policy and was speaking on behalf of
company management.
Stated differently, the test is whether under all the
circumstances, employees would reasonably believe that the
individual in question was reflecting company policy and
speaking and acting for management. I am fully persuaded
that George Korellis meets those requirements and that he
is an agent of the company within the meaning of Section
2(13) of the Act.
Having concluded that he is an agent, I shall now
address whether he made any comments that would in any way
indicate any animus on the part of the company toward Dixon
and any Union or concerted activity of a protected nature
that Dixon may have engaged in.
As I outlined earlier, employees Vaux and Elkins
testified about an April, 2003 safety meeting in which they
testified that George Korellis was present and that again,
the subject of start time was a subject of the conversation
in that safety meeting. Based on the testimony of Vaux and
Elkins the employees were again, perhaps attempting to
start work at an earlier time than was called for in the
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collective bargaining agreement and that the company,
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through its president Korellis, did not want to run a foul
of the collective bargaining agreement again and obtain
another grievance.
I'm persuaded that this came up and that company
president Korellis, as testified to by Vaux, wanted some
way to get around this problem that the employees, the
company and the Union contract presented with respect to
start time. And that president Korellis wanted them to
engage in some sort of a vote and support a starting time
and agree not to run a foul of the collective bargaining
agreement.
I am also persuaded that George Korellis with his long
years of work experience with this company and his long
wisdom and knowledge of the operation of the company and of
the type of work they performed, that he did not sit
quietly by in these meetings, as he would indicate, and
make no comments; but simply listened. I am persuaded that he
indicated that the employees could vote on this matter
because they had already gotten rid of the trouble maker.
I credit Vaux's testimony, as corroborated by Elkins,
both Elkins and Vaux testified that they believed that
former owner Korellis was making reference to Dixon. In
fact, Vaux testified that everyone laughed and everyone
assumed that it was Dixon that George Korellis was making
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reference to.
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Now having found those facts as I have outlined, I
shall apply the law as I believe to be applicable in this
case to those facts to ascertain if the discharge of Dixon
violated the Act.
In a case called Wright Line, W-r-i-g-h-t, second word,
L-i-n-e, 251-NLRB-1083, the Board set forth its causation
test for cases alleging violations of the Act that turn, as
does the case herein, on the employer motivation.
First, the government must
persuade the Board that anti-Union sentiment was a
substantial or motivating factor in the challenged employer
conduct or decision. And once this is established the
burden then shifts to the employer to prove its affirmative
defense that it would have taken the same action even if
its employees had not engaged in any protected activity.
How does the government meet that burden? Government
counsel must demonstrate by preponderant evidence one, that
the employee was engaged in protected activity; two, that
the employer was aware of the activity; three, that the
activity was a substantial or a motivating reason for the
employer's action; and four, that there was a causal
connection between the employer's animus and its discharge
decision.
The government may meet its Wright Line burden with
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evidence short of direct evidence of motivation. That is,
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it may demonstrate it by inferential evidence arising from
a variety of circumstances such as Union animus, timing or
pretext.
Furthermore, it may be found that where an employer's
proffered non-discriminatory motivational explanation is
false, even in the absence of direct evidence of
motivation, the trier of fact may infer unlawful
motivation. More than that, motivation of Union animus may
be inferred from the record as a whole where an employer's
proffered explanation is implausible or a combination of
other factors circumstantially may support such an
inference. Simply stated, direct evidence of Union animus
is not required to support such an inference.
Has the government met its burden in this case of
establishing a prima facia case? The answer, in my
opinion, is yes. There is no question that Dixon, based on
the credited evidence, engaged in activity that is protected
by the Act. He discussed and fellow workers discussed with
him whether or not the company was abiding by the party's
collective bargaining agreement. The Supreme Court has
held that when employees attempt to enforce a collective
bargaining agreement, they are engaging in activity that is
protected by the Act.
Secondly, the credited testimony indicates that Dixon
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visited with company president Korellis approximately one
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to two weeks before an actual grievance was filed on the
start times to discuss with company president Korellis
whether or not the start time issue could be resolved
without any grievance being filed.
The activity just outlined indicates that Dixon engaged
in activity that is protected by the Act. Was the company
aware of his protected activity? And again, the answer is
clearly yes. By the credited testimony, Dixon visited with
president Korellis to discuss the protected conduct that he
and his fellow workers had engaged in.
There is no question that a grievance was filed. And
in as much as Dixon had visited with company president
Korellis about the situation, it is reasonable to conclude
that the company could assume that Dixon had some
participation in the grievance that was actually filed.
Did the protected activity of Dixon play a substantial
or motivating reason in the company's discharge of Dixon?
In establishing a prima facia case before addressing the
company's burdens I am fully persuaded that the government
has established that it was a reason for the employer's
action.
I base that on a number of factors; one of wish is that
company president Korellis told Dixon that he was too vocal
in support of the Union. Former company owner George
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Korellis told Dixon that he was the one that had filed the
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grievance. And I'm also persuaded that the timing of
Dixon's discharge would indicate that it was a motivating
reason for the discharge of Dixon. Was there a causal
connection between the activity of Dixon, as outlined, and
his discharge? I am fully persuaded there was.
Now I turn to the company's burden and address the
issue of whether it met its burden of establishing that it
would have discharged Dixon even in the absence of any
protected conduct on this part. The company advances a
number of reasons for its actions. It says that Dixon had
never been a satisfactory employee, that he was
loud, boisterous, obnoxious and difficult to deal with.
The company presents evidence that he belittled,
ridiculed and tried to embarrass his supervisors and/or
fellow workers. And that when he was observed doing moon-
lighting work, that was the straw that broke the camel's
back and that this long record of his attendance, his job
performance, his inability to get along with co-workers,
his inability to get along with management, finally had
come to a head and that it was necessary, proper and not
unlawful, based on the company's contention, to discharge
Dixon at that point.
I reject the company's defense for at least a number of
reasons. Number one, if Dixon's attendance and work
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performance were so egregious, why did the company tolerate
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it for a period of perhaps seven years, only to bring it to
a head when the matter resolving the grievance in final
form came about? If Dixon was such an egregious employee,
why had he not been given warnings that were documented?
If Dixon's use of profanity was a reason for terminating or
a part of a reason or a culminating reason for Dixon's
discharge, why was he not discharged when company president
Korellis clearly said he heard him using what he considered
extreme profanity to his immediate supervisor Bailey? That
is, company president Korellis said, I overhead him on the
telephone use this profanity. Why didn't he discharge him
then if profanity was a problem?
Why did not company president Korellis, or someone on
behalf of the company, follow the collective bargaining
agreement and file a grievance regarding Dixon and
Livingston's unauthorized moon-lighting on a project for
Livingston's mother's friend? If the moon-lighting was a
problem in the discharge of Dixon, why was only Dixon
discharged and not Livingston also? It's clear they were
both on the job, and in fact, the evidence would tend to
indicate that Livingston was the one that created or
brought about the project.
The only additional factor that indicates a reason for
Dixon's discharge was that the company perceived, as
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alleged in the complaint, that he had either filed or had a
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moving position in filing the grievance and that he was too
vocal in his stands on the Union.
Therefore, I find that the discharge of Dixon violated
Section 8a(1) and (3) of the Act as alleged in the
complaint.
The matter does not end there, however. The company,
through its president Korellis, met with Dixon on or about
November the 19th, the 18th or the 19th, at the International
House of Pancakes in, I believe, Hammond, Indiana. The
exact location is not critical to the determination of this
issue; in which company president Korellis offered Dixon
reemployment with the company as a field roofer at the
exact same hourly wage rate and at the exact same hourly
benefit rate that he would have had as a service employee.
Whether you take company president Korellis' version
that Dixon said he would be there on Monday and didn't show
or whether you take Dixon's version that he told him, if
I'm going to take your offer I'll be there Monday morning,
and if not, I won't be at the American Business Machine
project. Doesn't make any difference, the offer would be
the same and the rejection would be the same. The question
is, does this constitute a substantially equivalent
position that Mr. Dixon previously had that company
president Korellis offered to him?
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I look at a number of factors in arriving at a
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conclusion on that. Dixon had, in the past, been taken
from his service department job and sent to a roofing job.
The most recent example, at least on this record, is that
Dixon was placed on the Harrison School and/or the
Valparaiso University Project. I believe the evidence will
show that Dixon was on the Valparaiso University Project.
So it would indicate the Dixon had performed work as a
field roofer.
The other side of the coin is that Dixon testified, and
I don't believe it was contradicted on this record, that he
did not consider it to be the same job for a number of
reasons. One, that as a roofer in the field you're exposed
to the elements; that is you suffer the heat in the summer
and the cold in the winter. He testified that service
employees received more hours of work on an annual basis than
would field roofing employees for, among other reasons,
weather conditions would intervene and even if there was
work to be performed, it could not be performed on certain
occasions.
Dixon also testified that in the summer as a service
technician you got to ride in the comfort of an
air-conditioned vehicle between projects and in the winter
you were sheltered from the cold and the storm as you moved
from job to job in the vehicle.
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Does the field roofing position equal a substantially
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equivalent position as to a service department employee?
One other factor must be looked at before I arrive at
that answer. And that is again, I believe it is
uncontradicted on this record, that service department
positions were sought after by the employees.
Lussow, for example, testified that it was the cream of
the crop that made it to the service department because, as
employee Dixon testified, you had to be able to perform
repairs on any type of roof that the company may have
installed or that may be seeking repairs to. That is, the
service technician would have to be familiar with and know
how to do repairs on shingle, tile, tar, metal, concrete,
gravel, whatever type roof there was. So that factor has
to be weighed in as to whether or not it is a substantially
equivalent position.
I am persuaded that it is not a substantially
equivalent position primarily because of the potential for
the loss of earnings that was testified to by employee
Dixon, that is that the number of hours that the service
employees were able to work during a 12 month period of
time would exceed the hours that a field roofing employee
would be able to obtain. The fact of the addition comfort
and the working conditions are additional factors that
weigh in whether it is a substantially equivalent position.
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But the potential for earnings and the fact that it was
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the sought after position in this company persuades me that
it is not a substantially equivalent position to offer a
former service employee a field roofing job. I shall order
that the company restore Dixon to his former position or a
substantially equivalent position and that it make him
whole for any loss of wages he may have suffered and that
it post an appropriate notice addressing the unfair labor
practices that I find have been committed by this company.
It has been a pleasure being in Chicago, Illinois and
this trial is closed.
(Whereupon the above matter was concluded.)

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“APPENDIX B”

NOTICE TO EMPLOYEES

Posted by the Order of the
National Labor Relations Board
An Agency of the United States Government

The National Labor Relations Board has found that we violated Federal labor law
and has ordered us to post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.

WE WILL NOT discharge our employees because we believe they filed
grievances and assisted the United Union of Roofers, Waterproofers and Allied Workers,
Local Union No 26 and to discourage employees from engaging in these activities.

WE WILL NOT in any like or related manner interfere with, restrain or coerce
employees in the exercise of the rights guaranteed them by Section 7 of the Act.

WE WILL offer Charles E. Dixon full reinstatement to his former job or if his
former job no longer exists to a substantially equivalent position without prejudice to his
seniority or other rights or privileges previously enjoyed; and, WE WILL make him
whole for any loss of earnings and other benefits resulting from his discharge less any net
interim earnings, plus interest.

WE WILL remove from our files any reference to the discharge of Charles E.
Dixon, and WE WILL notify him in writing that his discharge will not be used against
him in any manner.

KORELLIS ROOFING, INC.
(Employer)

Dated:_________________ By: ________________________________
(Representative) (Title)

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The National Labor Relations Board is an independent Federal Agency created in 1935 to
enforce the National Labor Relations Act. It conducts secret-ballot elections to determine
whether employees want union representation and it investigates and remedies unfair
labor practices by employers and unions. To find out more about your rights under the
Act and how to file a charge or election petition, you may speak confidentially to any
agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov

200West Adams Street, Suite 800, Chicago, IL 60606-5208
(312) 353-7570, Hours: 8:30 a.m. to 5 p.m.

THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM
THE DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR
COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE
ABOVE REGION’S COMPLIANCE OFFICER, (312) 886-3036
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Page(s)

Line(s)

DELETE

INSERT
388 1-21 Entire Lines 1-21
388 24 8A.1 8(a)(1)
388 25 3 (3)
389 7 “an” after “is”
389 25 authorized unauthorized
390 14 roof roofs
393 14 quote, unusual “unusual”
393 15 close quote
393 21 “was sent” after “letter”
393 23 “in which” after “Union”
395 5 quote, moonlighting
close quote
“moonlighting”
395 10 while although
398 9 meeting meetings
400 2 and as
400 3 occasional occasion
400 10 no not
402 10 mentioned These
matters to

402 11 Dixon
403 9 in appropriate inappropriate
404 18 “he” after “say,”
406 9 “he” after “company”
406 15 required requires
407 15 was were
409 9 early late
411 5 We had conceding conceded
412 25 Constructions construction
413 9 Korellis is Korellis’
413 22 opening openly
415 17 simply listen but simply listened
416 9 persuade that the Board
417 15 fascia facia
417 17 credited protected
418 18 fascia facia
419 5 that it there
419 11 difficult,
419 25 was were
420 13 “not” after “did”
421 4 A (a)
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Continued:

Page(s)

Line(s)

DELETE

INSERT
421 11 issue. In issue; in
421 11 “Dixon” after “offered”
421 12 preemployment reemployment
421 23 “had” after “Dixon” and
422 15 “basis” after “annual”
423 2 you I

81