Mark J. Leach Electrical Contractors

National Labor Relations Board - Board Decisions

Aug 27, 1980

251 N.L.R.B. 1100 (N.L.R.B. 1980)

1100 MARK J. LEACH ELECTRICAL CONTRACTORS
Mark J. Leach d/b/a Mark J. Leach Electrical
Contractors and International Brotherhood of
Electrical Workers, Local Union No. 5, AFL-
CIO. Case 6-CA- 11831
August 27, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On February 20, 1980, Administrative Law
Judge Stephen Gross issued the attached Decision
in this proceeding. Thereafter, Respondent and the
General Counsel filed exceptions and supporting
briefs, and Respondent filed a brief in response to
the General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge to the extent consistent herewith.
We agree with the Administrative Law Judge's
findings that Respondent violated Section 8(a)(1) of
the Act by threatening its employees, promising
benefits, creating the impression that employees'
union activities were under surveillance, and indi-
cating that it would be futile for them to seek
union representation. However, we find merit in
the General Counsel's contention that, in addition
to the above unlawful conduct found by the Ad-
ministrative Law Judge, Respondent also engaged
in an unlawful interrogation of employee Douglas
Myers sometime in September 1978.1 Myers testi-
fied without contradiction that on this occasion
Leach confronted Myers and asked him "what's all
this bullshit I hear, that you will vote for the union
if you get a chance to vote?" Myers responded that
he did not know anything about it and Leach said
"if you want to continue to work, stick with me." 2
This inquiry amounted to an unlawful attempt to
ascertain Myers' union sympathies in violation of
Section 8(a)(1) of the Act and we so find.
The Administrative Law Judge further found
that Respondent violated the Act by issuing writ-
ten warnings on November 21 to employees Ber-
nard Brooks, Dennis Pigford, Joseph Cekala,
Robert Ritz, and Douglas Myers, by laying off
Myers on that date, and by "indefinitely suspend-
' All dates refer to 1978. unless otherwise specified.
2 The Administrative Law Judge found that this latter statement con-
stituted an unlawful threat
251 NLRB No. 151
ing" or terminating Brooks, Pigford, and Ritz for
discriminatory reasons on November 30. However,
he found merit in Respondent's contention that, in
any event, Myers would have been laid off for lack
of work approximately 2 weeks after his November
21 layoff. Accordingly, he concluded that Myers
should receive backpay only for those 2 weeks, and
that Myers was not entitled to reinstatement along
with the other discriminatees. For the reasons set
forth below, we agree with the Administrative
Law Judge that the written warnings, layoffs, and
terminations violated the Act.3 However, we find
merit in the General Counsel's contention that the
Administrative Law Judge erred in concluding that
Myers would have been laid off in 2 weeks anyway
and thus was not entitled to reinstatement and full
backpay.
The record reveals that, from the inception of
the union organizational campaign, Respondent, by
threats, promises, and intimidation, sought to dis-
courage its employees from supporting the Union.
In this regard, on several occasions Respondent's
owner, Mark J. Leach, warned employees of the
grave consequences that would befall those who
supported the Union. Employee Bernard Brooks
testified without contradiction that on June 29
Leach told him that he would "find a way to fire
you and make it tough on you" and that he would
prevent Brooks from getting a job elsewhere by
giving him a bad reference. Brooks further testified
that Leach ended the conversation by stating that
"I could tell anybody I wanted, union friends or
anybody about the conversation and that he would
lie on a stack of Bibles that it wasn't true because
his company and the safety of his wife and kid was
[sic] in jeopardy." Employee Douglas Myers testi-
fied, again without contradiction, that in August
Leach told him that "if you want to continue to
work, stick with me" and also that Leach would
never give the union supporters "the satisfaction of
letting them [the Union] come in." Myers further
testified that on November 15, 2 days before the
election, Respondent's supervisor, Lawrence
Hussar, told him that "for my own good, if I
wanted to stay working, stick with Mark." Hussar
also implied that Respondent would lay off em-
ployees because of their union activity.
Although Respondent claimed that, from the
very beginning of the union campaign in February,
the Union and its adherents were engaged in a
slowdown and deliberate "sabotage" on its work-
sites, including serious errors in construction which
3 Although the Administrative law Judge found that the warnings
were discriminatory, he found that such action iolated only Sec 8(aXI)
of the Act. Since Rspoindent' s discriminiation also constitutes a violation
of Sec 8(a)(3) of the Act, \we hereby correct this inadvertent error
MARK J. I.EACH EI.ECTRICAL CONTRACTORS I101
allegedly cost $30,000 to $40.000 to rectify, it os-
tensibly took no action against the alleged sabo-
teurs because its counsel advised that disciplining
employees prior to the election should be avoided.
However, approximately 1 week prior to the elec-
tion, Respondent's supervisor, Hussar, began keep-
ing a detailed daily log of the work performance of
the alleged discriminatees at the Canonsburg job-
site, and also met with Leach each evening to dis-
cuss the employees' work. This log described the
work performance of union adherents Brooks, Pig-
ford, Cekala, Ritz, and Myers as substandard, using
such nebulous terms as "Production very poor,"
"very little work," and "Production 20%." 4 In ad-
dition, the day after the election, Leach began
spending substantial time at the Canonsburg jobsite
on a daily basis, although he had previously spent
little time there.
On November 21, Brooks, Pigford, Cekala, Ritz,
and Myers each received written warnings from
Respondent for poor work performance. Myers
was also laid off the same day. ostensibly for lack
of work. Thereafter, according to Respondent's
notes, the employees' performance did not improve
and Respondent decided to issue "indefinite suspen-
sions" to Brooks, Pigford, and Ritz on November
30. 5 Subsequently, Respondent offered to and did
in fact meet with the Union concerning the suspen-
sions. 6
As noted above, the Administrative Law Judge
found that were it not for the union activities of
these individuals, they would not have been dis-
charged. We agree with this conclusion. Respond-
ent had on numerous occasions threatened to dis-
charge the union adherents and Leach indicated he
would "find a way" to accomplish this result.7 To
that end, shortly before the election, Respondent
began to scrutinize and record the employees'
work performance more closely than it had ever
4 Although Respondent also introduced into evidence typed transcripts
of notes concerning alleged absences, tardiness, and work errors dating
back to May, these notes do not reflect that Respondent kept detailed
logs of daily work performance at its jobsites until just prior to the elec-
tion.
5 In addition, these logs contain several other self-serving statements
For example. when allegedly warned for returning late from a coffee-
break, the notes indicate that the employees "acked [sic] indifferent" to
Hussar's warning. When Ritz was allegedly asked about an error involv-
ing the pouring of concrete, Hussar quotes him as saying, "I guess I have
caused enough trouble for today so I guess I better go home."
a Respondent's supervisor, Hussar. testified that, at this meeting, nion
Representative Mahoney agreed that Respondent had "'just cause" for
firing Ritz. Even if such a statement Were made, it is of slight evidentiary
value, since there is no indication as to the context in which it \was made
and it merely represents an opinion concerning incidents not within Ma-
honey's personal knowledge. More importantly, it is contradicted by the
overwhelming weight of the evidence
I In this regard, we disavow the Administrative Law Judge's comment
that Leach's threat to fire Brooks 5 months before his (Brooks') discharge
"was largely sounding off. Without any real iniention behind it
done in the past. 8 And although these employees
had been employed by Respondent for a substantial
time prior to the election without adverse com-
ment, their work performance was all of a sudden
constantly criticized and considered wanting in
nearly every respect. These employees were then
terminated several weeks after the Union had pre-
vailed in the election. Thus, the numerous threats
of discharge, the precipitous timing of Respond-
ent's close scrutiny and reports of job performance,
and the timing of the discharges themselves are suf-
ficient evidence to give rise to the inference that
the discharges were motivated by the employees'
union activity.
In its effort to rebut the General Counsel's case
and to show that the terminations were not unlaw-
fully motivated, Respondent contended that the
employees were terminated for engaging in a
"slowdown" and "sabotage" on Respondent's con-
struction projects. In addition, Respondent also in-
troduced evidence that in late November Brooks
and Ritz had feigned illness to go hunting and that
on one occasion Ritz had refused to perform an as-
signed task.
With respect to the alleged slowdown, as noted
above, Respondent introduced detailed notes writ-
ten by Hussar, who supervised the Canonsburg
project, ostensibly recording the daily work per-
formed by the employees on the jobsite. the elec-
tion, and continued to be kept for a short time after
the discharges at issue. With few exceptions, the
log stated that the employees' work production
was extremely poor, which Respondent attributed
at least in part to a deliberate slowdown intended
to hurt its business. However, the Administrative
Law Judge found, and we agree, that the employ-
ees did not in fact engage in such a slowdown. Al-
though there may have been some production
problems at the Canonsburg jobsite, the record
supports the Administrative Law Judge's finding
that much of the problem stemmed from factors
outside the employees' control, such as inexperi-
enced supervision and insufficient tools. Thus, the
record does not support Respondent's contention
that the employees were not performing a full
day's work at the Canonsburg jobsite, and Re-
spondent cannot rely on these nonexistent trans-
gressions to justify the discharges.
In addition to the above claim, Respondent intro-
duced evidence of certain mistakes in construction
dating back to May, which were allegedly made by
the discharged employees as part of a union effort
See Chrvsler Corporaiion (Missouri Truck Plan). 242 NL.RH 577
1979)
1102 I) DECISIONS OF NATIONAL IAI()OR RELAII()NS O()ARI)
to "sabotage" Respondent's business.9 Leach testi-
fied that Respondent was forced to expend be-
tween $30,000 and $45,000 to correct the errors
made by these employees, and that most of the
repair costs were necessitated by errors occurring
before the election."' Yet Respondent would have
us believe that no action of any kind was taken
against the offending employees, even with respect
to faulty work completed in June and discovered
in August, since its attorney counseled against any
disciplinary action "so close to a new election" in
November. Although the Administrative Law
Judge found that Respondent was genuinely, albeit
mistakenly, deluded into thinking that the Union,
through these employees, was out to destroy him,
we think it strains credulity to accept that an em-
ployer would permit some of its employees deliber-
ately to vandalize its construction projects at a cost
of tens of thousands of dollars in order to avoid the
appearance of impropriety prior to an election.
Rather, we believe that Respondent has contrived
to utilize past errors in construction, either real or
imagined, as ex post facto justification for unlawful-
ly motivated discharges effected several months
later.
Finally, Respondent offered evidence that in late
November employees Ritz and Brooks feigned ill-
ness in order to go hunting, and also that Ritz on
one occasion refused to perform an assigned task.
However, Respondent had already issued an un-
lawful warning to Ritz prior to these incidents and
did not originally rely on them as justification for
his termination. It took no action on November 21
after Ritz initially refused to perform an assign-
ment, undoubtedly because he backed off when
confronted by Leach. As far as his 1-day "feigned"
illness on November 27 is concerned, Ritz returned
to work on November 28 without a word being
said by Respondent. Similarly, Brooks' absence as
the ostensible justification for his discharge must be
viewed in light of the surrounding circumstances.
Respondent had previously threatened Brooks with
discharge for his union activity, had issued him a
discriminatorily motivated warning along with the
other employees I week before, and finally dis-
charged him at the same time as Pigford and Ritz.
I In several instances during his testimony, Leach hestitated to charac-
terize the employees' alleged conduct as "sabotage," preferring to call
these acts "deliberate mistakes." Whatever the characterization. Respond-
ent contends that the Union, through its prounion employees, was intent
on destroying its business.
In In this regard. Leach ',as less than candid with respect to when he
actually learned of these "mistakes" Leach testified that he did not learn
that a conduit was improperly installed by Hrooks and Ritz in the spring
of 1978 until May 1979 However, when confronted with the fact that his
supervisor, Hussar, had allegedly discovered this error among others
during the summer of 1978, Leach said he did not remember since
"there's a hundred different dates through the whole thing, I can't re
member them all clearly."
More importantly, however, Respondent at the
hearing relied heavily on Brooks' poor work per-
formance and "subatage" to support the discharge,
as it did with respect to the other employees.
Under these circumstances, Respondent has failed
to show that Brooks' discharge was more than tan-
gentially related to his 3-day absence. ''
In view of the foregoing, we conclude that the
evidence presented by Respondent is insufficient to
negate the General Counsel's showing of unlawful
motivation, and thus Respondent has failed to dem-
onstrate that, absent their union activity, these em-
ployees would have been discharged. Accordingly,
we agree with the Administrative Law Judge that
the discharges of Myers, Pigford, Brooks, and Ritz
violated Section 8(a)(3) and (1) of the Act.
As noted above, the Administrative Law Judge
further found that, even absent Myers' union activi-
ty, Respondent would have laid him off for lack of
work 2 weeks after his actual termination. In so
finding, he relied on testimony to that effect by
Leach, testimony which he found was supported
by one of the General Counsel's exhibits which
listed Myers as a "laborer." The Administrative
Law Judge found that, of the three "laborers" em-
ployed by Respondent in the fall of 1978, the other
two had been laid off on October 13 and 30, with
Myers' layoff occurring on November 21. On this
basis alone, he credited Leach's testimony that
Myers would have been laid off in 2 weeks due to
lack of any laborer's work. However, we find
merit in the General Counsel's contention that the
evidence clearly does not support the Administra-
tive Law Judge's finding in this regard.
Initially, it is clear that the Administrative Law
Judge's finding was predicated upon a misreading
of the above-mentioned exhibit. Contrary to his
finding, this exhibit lists four rather than three em-
ployees as "laborers," the fourth being Robert Ritz,
who we have found was discharged for discrimina-
tory reasons shortly after Myers' termination.
Thus, even assuming that Myers performed only la-
borer's work,'2 this type of work was apparently
1I The Administrative Lasw Judge viewed these incidents as constitut-
ing "some evidence that MJL[Leach] would have discharged at least one
or two of the four, and perhaps all of them, even had Leach not felt that
Local 5 and its adherents %sere out to destroy MJL." We agree with this
finding only to the extent that Respondent has shown that these incidents
in fact occurred. The Administrative Law Judge concluded, and we
agree, that the preponderance of the evidence does not support Respond-
ent's claim that it would have discharged the employees for these acts
absent their union activity.
11 Such an assumption is highly questionable, since the record indicates
that Myers performed "helper" work, as did the other employees who
were not electricians. Moreover, it is uncontradicted that Myers was in-
cluded in the bargaining unit, which consists of "all electricians, appren-
tices and helpers" employed by Respondent Finall, the record indicates
that employees were required to and did perform a variety of skilled
Continued
MARK J. LEACH ELECTRICAI. C()NTRACT()RS 1103
still available after his termination, since Ritz was
kept on the Canonsburg project after Myers'
"layoff" and was allegedly terminated almost 2
weeks later for poor work performance and not
lack of work. In this light, it is evident that the
Administrative Law Judge's finding that no work
was available for a laborer in December is, at best,
subject to serious doubt. More importantly, Re-
spondent's records indicate that activity at Canons-
burg increased several weeks after Myers' termina-
tion. These records show that, immediately after
the November 30 discharges, Respondent had more
employees than ever before on the Canonsburg
project' 3 and had them working overtime, includ-
ing at least one weekend. There is no indication
that the type of work being performed was differ-
ent from the work done prior to November 30,
which apparently required laborers. Moreover, Re-
spondent offered no evidence that, after November
30, all of the employees at Canonsburg perfomed
tasks different from those previously performed by
Myers or that such work was not within his capa-
bility. Thus, Respondent's own records belie its as-
sertion that, absent his union activity, Myers would
have been laid off in 2 weeks due to lack of labor-
er's work.
Finally, we note that, 2 days before the election
and less than 1 week before his "layoff," Supervi-
sor Hussar told Myers that if he wanted to stay
working he would "stick with Mark," implying
that he should vote against union representation.
No mention was made about any impending eco-
nomic layoff. On the contrary, Hussar alluded to a
layoff because of the employees' union activity,
and the evidence fully supports a finding that no
economic layoff was necessary or contemplated.
Accordingly, we find that, absent Myers' union ac-
tivity, Respondent would not have terminated his
employment either on November 21 or 2 weeks
later.
In view of the above, we shall provide in our
Order for reinstatement and full backpay for em-
ployee Myers.' 4
functions, regardless of their rate of pay or nominal classification. This
latter fact was a source of consternation to at least one employee, Ritz.
'3 We note that after the termination of Pigford, Brooks, and especial-
ly Ritz, it would seem that Respondent would have had an even greater
need than before for experienced employees.
1" In his recommended Order the Administrative Law Judge inadvert-
ently failed to require Respondent to expunge from its records all refer-
ence to the disciplinary action taken against the discriminatees and to so
notify these employees in writing. Since the Board customarily provides
such a remedy in like circumstances, we shall include this requirement in
our Order.
In addition, we do not agree with the Administrative Law Judge that a
broad order is not warranted in this case Rather, we conclude that Re-
spondent's discriminatory termination of a substantial portion of its small
work force, coupled with its numerous other unfair labor practices both
before and after the representation election, clearly "demornsrate[s] a
general disregard for the employees' fundamental statutory rights " Hick-
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Mark J. Leach d/b/a Mark J. Leach, Electrical
Contractors, Monongahela, Pennsylvania, his
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating his employees concerning their
support for a labor organization.
(b) Threatening his employees that he will cease
doing business, through bankruptcy or otherwise, if
his employees select the International Brotherhood
of Electrical Workers, Local Union No. 5, AFL-
CIO, or any other labor organization, as their col-
lective-bargaining representative.
(c) Threatening to discharge or blacklist any em-
ployee because of his membership in or support for
a labor organization.
(d) Creating the impression that the union activi-
ties of his employees are under surveillance.
(e) Promising benefits to any employee for op-
posing any labor organization.
(f) Uttering statements reasonably tending to lead
employees to believe that it would be futile for
them to seek to be represented by any labor organi-
zation.
(g) Issuing disciplinary warnings to any employ-
ee by reason of that employee's membership in or
support for a labor organization.
(h) Suspending, laying off, or otherwise terminat-
ing the employment of any employee, by reason of
that employee's membership in or support for a
labor organization.
(i) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Rescind his written warning notices issued to
Bernard Brooks, Dennis Pigford, Joseph Cekala,
Robert Ritz, and Douglas Myers and expunge from
his records those written warnings and all other
reference thereto.
(b) Advise Bernard Brooks, Dennis Pigford,
Joseph Cekala, Robert Ritz, and Douglas Myers in
writing that the warning notices have been rescind-
ed and the records of these notices have been ex-
punged.
(c) Offer Bernard Brooks, Dennis Pigford,
Robert Ritz, and Douglas Myers immediate and
full reinstatement to their former positions or, if
these positions no longer exist, to substantially
mort PIrds. Incr, 242 Nt.RB 1357 (19'9) Accordingl, a bread order is
warranted n this case and we shall so provside
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
equivalent positions, without prejudice to their se-
niority and other rights and privileges previously
enjoyed, and make them whole for any losses they
may have suffered by reason of their unlawful ter-
minations, in the manner set forth in the section of
the Administrative Law Judge's Decision entitled
"The Remedy," as modified above.
(d) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security records, ti-
mecards, personnel records and reports, and all
other documents necessary to analyze and compute
the amount of backpay due under this Order.
(e) Post copies of the attached notice marked
"Appendix."' 5 Copies of said notice, on forms pro-
vided by the Regional Director for Region 6, after
being duly signed by Respondent's authorized rep-
resentative, shall be posted by him immediately
upon receipt thereof, and be maintained by him for
60 consecutive days thereafter, in conspicuous
places, including all places where notices to em-
ployees are customarily posted. Respondent shall
take reasonable steps to insure that the notices are
not altered, defaced, or covered by any other mate-
rial.
(f) Notify the Regional Director for Region 6, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
l' In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board"
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that I
have violated the National Labor Relations Act, as
amended, and has ordered me to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choiceTo engage in
activities together for the purpose of collec-
tive bargaining or other mutual aid or pro-
tectionTo refrain from the exercise of any or
all such activities.
I WILL NOT interrogate my employees con-
cerning their support of International Brother-
hood of Electrical Workers, Local Union No.
5, AFL-CIO, or any other union.
I WILL NOT threaten my employees that I
will cease doing business, through bankruptcy
or otherwise, if my employees select IBEW,
Local 5, or any other union, as their collec-
tive-bargaining representative.
I WILL NOT threaten to discharge or black-
list any employee because of his support for
IBEW, Local 5, or any other union.
I WILl. NOT do or say anything to create the
impression that the union activity of my em-
ployees is under surveillance by me.
I WILL NOT promise benefits to any employ-
ee for opposing any union.
I WILL NOT make statements that will lead
my employees to believe that it would be
futile for them to seek to be represented by a
union.
I WILL NOT issue disciplinary warnings to
any employee because of membership in or
support of IBEW, Local 5, or any other union.
I WILL NOT suspend, lay off, or otherwise
terminate the employment of any employee be-
cause of membership in or support of IBEW,
Local 5, or any other union.
I WILL NOT in any other manner interfere
with, restrain, or coerce my employees in the
exercise of their rights under Section 7 of the
National Labor Relations Act, as amended.
I WILL rescind the written warnings issued
to Bernard Brooks, Dennis Pigford, Joseph
Cekala, Robert Ritz, and Douglas Myers and I
WILL expunge from my records those written
warnings and all other reference thereto.
I WILL advise Bernard Brooks, Dennis Pig-
ford, Joseph Cekala, Robert Ritz, and Douglas
Myers in writing that the warning notices
have been rescinded and the records of these
notices expunged.
I WILL offer Bernard Brooks, Dennis Pig-
ford, Robert Ritz, and Douglas Myers immedi-
ate and full reinstatement to their former posi-
tions or, if these positions no longer exist, to
substantially equivalent positions, without loss
of seniority or other rights and privileges pre-
viously enjoyed, and I WILL make them
whole for any losses they may have suffered
because I unlawfully terminated them, with in-
terest.
MARK J. LEACH D/B/A MARK J.
LEACH ELECTRICAL CONTRACTORS
MARK J. I. EACI ELECTRICAL CONTRACTORS 11(5
DECISION
ST A IEMEN I 01 THE CASE
STEPHEN GROSS, Administrative Law Judge: The Re-
spondent, Mark J. Leach d/b/a Mark J. Leach Electrical
Contractors, is engaged in the electrical contracting busi-
ness in Western Pennsylvania. The Charging Party is the
International Brotherhood of Electrical Workers, Local
No. 5, AFL-CIO. Respondent admits that it is an em-
ployer engaged in commerce within the meaning of the
National Labor Relations Act, as amended, and that
Local 5 is a labor organization within the meaning of the
Act. (Respondent, the company, will henceforth be re-
ferred to as MJL." Mark J. Leach, the individual, will be
referred to as Leach.) According to the complaint, MJL
committed the following violations of the Act:
(1) MJL interrogated employees concerning their
union activities and sympathies.
(2) MJL threatened employees with cessation of its op-
erations if they selected Local 5 as their collective-bar-
gaining representative.
(3) MJL promised employees benefits in order to dis-
suade them from engaging in activities on behalf of
Local 5.
(4) MJL threatened to discharge employees and to
blackball them if they selected Local 5 as their repre-
sentative.
(5) MJL told employees that MJL would never sign a
collective-bargaining agreement with Local 5 in order to
dissuade them from selecting Local 5 as their representa-
tive.
(6) MJL disciplined and fired employees because they
engaged in union activities and in order to discourage
membership in Local 5.
(7) MJL unilaterally changed MJL's sick leave policy
after Local 5 was certified as the representative of MJL's
employees. '
MJL denied that it had violated the Act in any re-
spect, and the case went to hearing on April 23 and 24
and August 9 and 10, 1979.
FINDINGS OF FACT
Leach's First Reactions to Local 5's Organizing
Efforts
At all material times MJL's work has been split be-
tween projects in coal mines on the one hand and, on the
other, nonmine projects. The record reflects that the
United Mine Workers of America insists that employees
of electrical contractors doing work in UMW-organized
mines must be members of the UMW and that electrical
contractors enter into collective-bargaining agreements
with the UMW regarding such work. MJL accordingly
did enter into a contractual relationship with the UMW
and MJL's employees all were members of the UMW.
MJL's relationship with the UMW, however, covered
only work in mines. Accordingly, MJL's employees
were unrepresented by any union when they worked
aboveground.
i The complaint issued on January 29, 1979 The underlying charge
was fied Nember 27. 1978 (then amended on December 15, 1978)
In late February 1978, some of MJL's employees start-
ed efforts to have Local 5 become the exclusive repre-
sentative of MJL's employees. In view of the UMW's in-
sistence on UMW representation of all employees work-
ing at minesites, Leach was sure that, if Local 5 succeed-
ed in its organizing efforts. MJL would as a practical
matter be shut out of all minework. That would have
been a disaster for the company.
Leach did not accept the situation with equanimity. In
mid-March, according to the unrebutted testimony of
MJL employee Bernard Brooks, Leach asked Brooks
"why we [MJL's employees] went to the union," and
then got so mad about Brooks' refusal to acknowledge
his union activities that Leach smashed a nearby light
bulb with his hand. Leach also said to another employee:
"Do you realize this [representation by Local 5] will
make the Company go bankrupt."
March-April 1978
Back in August 1977, MJL had submitted a bid for the
electrical contracting work at a proposed Canonsburg
water treatment plant. After submitting the bid, MJL dis-
covered that the bid was $100,000 too low, due to an
arithmetical mistake. MJL attempted to submit a correct-
ed bid but the second bid was rejected. MJL was ulti-
mately awarded the contract at its unduly low bid price,
and in about March 1978 MJL began work on the proj-
ect. According to Leach, he was quickly confronted
with a series of serious mistakes on the part of the fore-
man he had on the project, Grandel, and the two em-
ployees working with Grandel - Brooks and Robert
Ritz. Leach testified that mistakes were so obvious that
they probably were deliberate - a form of "sabotage." I
credit that testimony, in that I am convinced that Leach
was honestly testifying about what he perceived to be
the case.
Grandel did not testify (he no longer works for MJL),
but Brooks and Ritz did. Both flatly denied any deliber-
ate wrongdoing and said that they simply followed
Grandel's orders. As far as they were concerned, they
both testified, their work at the time was satisfactory.
Ritz further noted that he had been hired as a laborer
and that he was being paid at the laborer pay scale -
that was said with a bitter edge to it - so that he could
hardly have been expected to have critically reviewed
the instructions he was getting from his foreman.
May-July 1978
On May 2, the Regional Director for Region 6, acting
in response to Local 5's petition, directed an election at
MJL. The decision of the Regional Director was that
MJL's electricians and helpers should be considered one
unit, with no distinction made between mine and non-
minework. Three individuals were specifically excluded
from the unit-two supervisors, Grandel and Daily, and
Larry Hussar, who at that time held a desk job as an es-
timater and draftsman. (See Resp Exh. R-3). The Board,
however, stayed the election pending review.
Meanwhile, Leach began to have a number of new
problems with his labor force. Two of his foremen,
Grandel and Daily, quit. Grandel did so without any
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
notice. Both Grandel and Daily went to work for con-
tractors whose work force was organized by Local 5.
Leach interpreted that as an indication that the two fore-
men were lured away by Local 5, and that Local 5 did
that with the purpose of injuring MJL. Apart from that,
according to one of the employees, "a lot of friction"
was developing "between the men and Mark [Leach].
Even if the union wasn't involved at the time, I believe
the problem would have been there still." The major
problem seemed to be what MJL's employees perceived
as an unduly low pay scale, their "poor wages," for non-
minework. MJL's employees felt that they were being
paid less than were their counterparts at other compa-
nies.
As far as MJL's specific problems with its employees
were concerned, several came in late, one to failed to
show up at all one Friday and then refused to make up
the work on Saturday, another was caught smoking
marijuana, and one stood around watching other MJL
employees unload a heavy piece of equipment without
lending a hand.
In a separate incident (in late June), Leach spoke to
Brooks about Local 5's organizing efforts. Leach said
that those efforts were costing him a lot of money, that
unionization by Local 5 was putting Leach and his
family in jeopardy, that he knew that Brooks had gone
to the Union rather than vice versa, that Brooks' attitude
was costing Leach money, and that Leach was going to
fire Brooks and "make it tough" on him by giving him
"the worst reference in the world."
August 1978
Leach continued with his anti-Local 5 statements, tell-
ing employee Douglas Myers that he, Leach, was going
to keep Local 5 out.
As far as Leach was concerned, in August he was
faced with employees who were "milking the job."
Moreover, according to Leach, August brought with it
more incidents of sabotage. Two employees-Brooks and
Dennis Pigford-Leach said, went out of their way to
deliberately miswire various electrical systems at a mine-
site. Neither employee was disciplined, however, because
Leach was advised hy his attorney that disciplining his
employees prior to an election should be avoided. Again,
I credit Leach's testimony insofar as I believe that it
truthfully represents the way things were, as Leach per-
ceived them. Both of the employees named by Leach
denied doing anything wrong (although they did not
deny that there may have been problems with the electri-
cal systems to which Leach referred).
September and October 1978
Leach's antiunion statements continued. Leach at-
tacked Myers for being prounion, told Myers that "if
you want to continue to work, stick with me," said that
MJL would declare bankruptcy "if Local 5 came in, and
told Pigford that MJL would be broke if Local 5 got in.
On October 10, the Board handed down its decision
on review of the Regional Director's decision ordering
an election at MJL. The Board concluded that the ap-
propriate unit at MJL, for purposes of the election
sought by Local 5, was the MJL electricians, apprentices
and helpers in their nonminework, the position that MJL
(and the United Mine Workers) had urged on the Board.
(See Resp. Exh. R-5.)
Leach obviously was pleased with the decision. At
worst it meant that, although Local 5 might come in as
his employees' representative for nonminework, he
would not have trouble with the UMW at minesites.
Leach, however, apparently felt that the decision meant
even more than that to him and told Pigford that, in
View of the Board's decision, "Local 5 didn't have a leg
to stand on." In view of the Board's decision, said
Leach, Local 5 was not going to be involved any fur-
ther.
November 1978
1. Testimony of MJL's witnesses; November 1-20
According to both Hussar (who became the "working
foreman" at the Canonsburg site when Grandel left) and
Leach, it was crystal clear that throughout November
the primary interest on the part of MJL's employees at
the Canonsburg site was to injure MJL-by slowdowns
and by doing work improperly.
Leach and Hussar testified that various of MJL's em-
ployees at Canonsburg worked at production levels well
below half of normal, delayed carrying out orders, took
a coffeebreak three times as long as allowed, deliberately
sabotaged concrete work (necessitating a costly cleanup
effort), deliberately fouled up conduit placement, and
came to work late.
According to Leach, moreover, it was during this
period that he learned from employee Gerry Kristobek
that Mahoney, of Local 5, had told MJL's employees "to
hurt the Leach Electric Company in any possible way
they possibly can."
As for the November 17 election, Local 5 won (as cer-
tified by the Board on November 28). Leach testified
that, immediately following the vote count, MJL's attor-
ney told Mahoney that MJL was ready to bargain.
2. November 21-30
Leach testified that, although he had long had ample
reason to discipline a number of his employees, he had
refrained from doing so prior to the election on the
advice of counsel. (I credit that testimony.) But with the
election behind him, that restraint was done. And on No-
vember 21, MJL issued warning letters to Brooks,
Cekala, Myers, Pigford, and Ritz. 2 According to Leach,
one of his employees, Pigford, agreed that the warnings
were justified. (Pigford, on his part, did not dispute
Leach's testimony, but said he agreed with Leach "just
for him to get off my back a little while.")
Myers was laid off on that same day, November 21.
According to Leach, there were two reasons for that
action. First, there was not enough work to warrant
keeping Myers on the payroll.3 Second, Myers was not
2 See G.C. Exhs 2, 5, 8, II, and 12.
' In fact, MJL's business did seem to be slowsing down. See the layoffs
noted in GC. Exh. 3.
MARK J l.F.ACH EI.FCTRICAI. CO()N'RACTORS 11()7
doing good work: "The production that I u aas getting
from Doug Myers was maybe in the range of 2() to 35
percent throughout the [previous] two weeks and Larry
[Mussar] had to put up with a lot of back sass." In fur-
ther explanation. Leach said that, even if Myers' work
had been up to par, Leach would have had to lay him
off 2 weeks later anyway. Thus, discipline played only a
small part in Leach's decision to lay off Myers on No-
vember 21.
Notwithstanding the warnings, production at Canons-
burg remained abysmally low tnrough the remainder of
November (per Hussar and Leach). Moreover. other
problems kept cropping up. On November 21 Ritz re-
fused to perform an assigned task on the ground that he
was not being paid at a wage level commensurarate with
the skill required for the task. And, on November 27.
Brooks and Ritz called in sick.
Leach was dubious about these sicknesses, since No-
vember 27 was the first day of the hunting season in
Pennsylvania and since neither Brooks nor Ritz personal-
ly called in. (Brooks' mother called and Ritz's wife.
When Leach tried to get Ritz at home later that day,
Ritz was not there. At the hearing neither Brooks nor
Ritz denied that they in fact went hunting.) Ritz was
back on the job on November 28, but Brooks stayed out
on both November 28 and 29. Then. near midnight on
November 29, Brooks clled Leach. According to
Leach, he was sleeping hlien Brooks called and thus
does not remember exactly what was said in that conver-
sation. But it does appear that he asked Brooks whether
Brooks had a doctor's excuse, and when Brooks said that
he did not, Leach suspended Brooks for being absent.
The failure of production at Canonsburg to return to
acceptable levels (plus the absentee problem) led Leach
to issue letters on November 30 "indefinitely suspending"
Brooks, Pigford, and Ritz (G.C. Exhs. 6, 10, and 13).
Copies of those letters were sent to Mahoney at Local 5
along with a letter from MJL stating that "we want to
meet with you and each employee" about the suspen-
sions. (Resp. Exh. R-9.)
3. General Counsel's witnesses-the November
events
All of the MJL employees implicated by Leach explic-
itly denied that they ever engaged in a slowdown, or
that they ever put in less than a normal day's work, or
that they ever deliberately or even negligently did their
work improperly. Moreover, Mahoney denied that MJL
proposed bargaining rights after the November 17 elec-
tion and denied that he ever told anyone that MJL's em-
ployees should try to injure Leach. And Kristobek
denied that he ever reported any such Mahoney state-
ment to Leach.
MJL's employees further testified that: (1) Leach con-
tinued his anti-Local 5 statements in November (unden-
ied by MJL);' (2) while until the election on November
17 Leach was rarely at the Canonsburg site, after the
election he was there every day, which suggests. of
' Those sitalements ncluded that l ocal 5 as hill for the birds, that
Leach ould declare bankruptcy i ocal came in ad then would start
a new cornpan 5, and tha L.ocal 5 was "full of lies "
course, antiunion bias on Leach's part; (3) Leach refused
to consider any of the objections that his employees
raised about the November 21 written warnings; (4) that
Myers was not given a reason for his "lay off' at the
time it occurred and that Leach had pre iously told
Myers that Leach "had gotten a record" on him: and (5)
prior to the incident involving Brooks, Leach had never
asked for a doctor's note from an employee who claimed
he was out sick.
On the other hand, MJL's employees by and large
concurred in Leach's testimony that throughout Novem-
ber Leach indicated to the employees his concern about
low production levels, and they did not deny that ,work
progress at Canonsburg at times was slow.
But as far as that slow progress wvas concerned, the
employees felt that it was due to a number of factors
beyond their control. To begin with, the site at Canons-
burg was a large one, with the different areas ii which
MJL employees worked spread out over hundreds of
yards. Second, MJL failed to provide sufficient tools and
equipment, which required the men to spend time walk-
ing from one building to the next looking for needed
pieces of equipment or waiting for equipment until an-
other employee had completed using it. Third. the em-
ployees frequently had to hunt for Hussar at the various
buildings on the Canonsburg site in order to get keys to
the company toolbox, to get a new assignment, and the
like. Finally, as the employees saw it, Leach and Hussar
ran a confused, inefficient operation. Or as Myers said he
told Leach: "I'm tired of getting laughed at, doing ev-
erything half-assed."
December 1978 and Thereafter
Local 5 found new jobs for Brooks, Myers. Pigford.
and Ritz as soon as they were discharged by MJL.
Leach saw that as still further proof that MJL's prob-
lems with the four men were the result of a plot against
him by Local 5. And while production at Canonsburg
generally picked up in December, one employee, after
talking to exemployees Brooks, Pigford, and Ritz, re-
sponded to a Leach complaint about low production by
saying, "You're paying me laborer rate and I guess I'm
doing laborer work." That same employee testified that,
to whatever extent production was low at Canonsburg in
December, it was due to a lack of sufficient tools and a
"very confused" organization of the job by Hussar and
Leach.
At MJL's suggestion, Mahoney and Pigford met on
December 13 with MJL's attorney and Hussar.5 At the
meeting, according to Hussar's unrebutted testimony.
Mahoney agreed that MJL had just cause for firing Ritz.
and after Hussar described the events of November, Pig-
ford said that "the man don't lie." MJL's attorney pro-
posed going through grievance procedures for a decision
on whether MJL's discharge of Brooks, Pigford. and
Ritz was warranted. But Mahoney rejected that ap-
proach, and advised that he planned to pursue the proce-
dures available at the Board.
5 MJL iiled Brooks and R to the meeting too. but then did not
attend
I108 DECISIONS OF NATIIONAL LABOR RELATIONS BOARD
ANALYSIS, CONCIUSIONS , ANI) FURTHER FINDINGS
OF FACT
1. The discharges; e the General Counsel's and
Respondent's contentions
The General Counsel claims that Myers' "lay-off' on
November 217 and the indefinite suspensions of three
employees on November 30 were a result of MJL's
desire (I) to retaliate against its employees for voting in
favor of Local 5; or (2) to dissipate Local 5's strength at
MJL by discharging "more than a third of the bargaining
unit"; or (3) to demonstrate to its remaining employees
its "antipathy towards the union"; or (4) a combination
of these factors.
Respondent, on the other hand, argues that Local 5, or
at least its adherents at MJL, were out to get MJL; that
the low production levels and improperly done work at
Canonsburg are proof of that intent; that MJL had ample
cause to fire Brooks, Pigford, and Ritz and to give
Myers an early layoff in view of the work performance
of those employees; and that all such action by MJL was
solely a function of its employees' job performances. As
further proof of the validity of its argument, MJL points
to statements by Union Official Mahoney and by exem-
ployee Pigford in support of its claim that MJL was jus-
tified in its actions. MJL also argues that its willingness
to meet with Local 5 and to submit its actions to Local
5's grievance procedures shows that it was acting in
good faith.
As far as MJL's attitude toward Local 5 is concerned,
Respondent admits that, prior to the Board decision in
October 1978 (providing for a collective-bargaining unit
limited to employment at noncoalmine jobsites), Leach
was concerned that unionization by Local 5 would doom
MJL and that his feelings about Local 5 reflected that
concern. But after the Board's decision, claims MJL,
Leach was untroubled by Local 5's organizing efforts.
As I add up the record, the actual circumstances at
MJL matched neither the picture drawn by the General
Counsel nor the one painted by MJL.
As far as the General Counsel's contentions are con-
cerned, it is true that Leach threatened one employee
(Brooks) with discharge because of Brooks' activities on
behalf of Local 5, that Leach criticized other employees
for their support of Local 5, and that Leach obviously
opposed Local 5's representation of MJL's employees.
But Leach's one real discharge threat against Brooks was
made 5 months before Brooks was fired. And I got the
impression that Leach's statement was largely sounding
off, without any real intention behind it.
f Hrooks, Pigford, and Ritz were suspended indefinitely, rather than
fired Myers was laid off (although by Leach's own description, that
layoff had disciplinary elements to it). For colenience' sake, the follosw-
ing discussion will from time to time refer to MJL's action against the
four employees as discharges or terminations.
I The record supports each's statement that Myers sould have been
laid off by the end of November even had MJL considered Myers to be a
satisfactory employee. (Of the three laborers working for MJI. in the
autumn of 1
97
8-in addition to Myers-one was laid off on October 13.
Iq78, another on October 30 (i.C Exh. 3.) Thus, the issue to be conrsid-
ered here, in respect to Myers, was whether MJL's 2-week advallce ill
MyerC layoff date was discriminalorily motivated
The record is clear, moreover, that Leach was terribly
concerned about production levels at Canonsburg. Sever-
al of the General Counsel's witnesses testified that Leach
kept talking to them about what he saw as low produc-
tion levels. (And Leach is not the sort of person who
would have done that with a view to future litigation.)
Moreover, contemporaneous MJL records show that
both Leach and Hussar viewed the work at Canonsburg
as catastrophically below par.
All in all, I cannot conclude that MJL's claim that
Brooks, Myers, Pigford, and Ritz were discharged be-
cause of work-related behavior was mere pretext.
On the other hand, contrary to MJL's contentions the
evidence shows that Leach's strong anti-Local 5 feelings
did not materially dissipate with the Board's October de-
cision. And the record is clear that the employees' dis-
charges were related to those anti-Local 5 emotions.
2. The claimed plan to destroy MJL
The Canonsburg project must have been a nightmare
for Leach. It started with a disaster-MJL's $100,000
arithmetical mistake. And just about the time work on
the project was getting underway MJL lost two fore-
men, one of whom was in charge of MJL's work at Can-
onsburg. Given this setting MJL badly needed the
utmost cooperation from its Canonsburg work force.
MJL did not get it. At least some of the men assigned
to Canonsburg reacted to what they considered below-
par wages, a hostile attitude by Hussar and Leach, and
MJL's unprofessional, helter-skelter management of the
operation. That, in turn, led to uncooperative attitudes
on the part of the men and undoubtedly affected their
level of production.
Apart from the employees' attitudes, the record indi-
cates that work at Canonsburg was affected by the fac-
tors about which the employees testified: insufficient
numbers of tools, less than optimum management, and
the like. Leach and Hussar, however, seemed almost
blind to these kinds of problems at the jobsite, placing
the entire blame, instead, on the employees. (As Ma-
honey pointed out, Hussar's evaluations may well have
been at least partially a function of his inexperience.)
To Leach, the men's attitudes and what he saw as
their abysmal production levels were explicable only as
further proof that "Local 5 was out not just to organize
Mr. Leach, but to put him right out of business." 8 Thus,
from Leach's point of view, Brooks, Myers, Pigford, and
Ritz, as Local 5 adherents, "kept pounding on him," and
did so solely in order "to hurt him more and more."
Leach's decision to terminate MJL's employment of
the four men, given Leach's viewpoint, was understanda-
ble and was undoubtedly made in good faith. Poor work
performances stemming from a plan to destroy MJL are,
after all, reasonable grounds for discharging the guilty
employees.
But the record fails to support Leach's belief that
Local 5, or any of its members, was trying to injure
MJL. The one bit of direct evidence on point was
' Although those words were stilled by MJ.'s counsel, the record as a
u, hle shows that they expressed Leach's personal views
MARK J. I.EACH EECTRICAI. CONTRACTORS ..1()'1
Leach's testimony about what Kristobek said Mahoney
said ("hurt . . . Leach . . in any possible way"). It is
possible that Leach thought he had heard that. But I
credit the denials of Kristobek and Mahoney. And I also
credit the testimony of MJL's employees that they did
not engage in any slowdown aimed at hurting MJL and
did not deliberately do any jobs incorrectly.
In sum: (1) MJL terminated the employment of
Brooks, Myers, Pigford, and Ritz at least in part because
of what it perceived as their support for Local 5's effort
to destroy MJL; and (2) neither Local 5 nor any of
MJL's employees in fact sought to harm MJL. That adds
up to a violation of Section 8(a)(3) since the employees'
discharges were connected with their support for a
union, and since Leach's good-faith belief in the employ-
ees' wrongdoing is not a valid defense given the fact that
that belief was mistaken. Cf. .L.R.B. v. Burnup and
Sims, Inc., 379 U.S. 21 (1964).
I have considered whether MJL would have dis-
charged the four employees even had they not been sup-
porters of Local 5 and, clearly, there is some evidence
that MJL would have discharged at least one or two of
the four, and perhaps all of them, even had Leach not
felt that Local 5 and its adherents were out to destroy
MJL.
Ritz, apparently, did refuse to do an assigned task.
Both Ritz and Brooks feigned illness-Ritz for a day,
Brooks for three-in order to go hunting. And both
Hussar and Leach honestly felt that MJL's Canonsburg
employees were not putting in anything like a normal
day's work.
Nonetheless, for two reasons my conclusion is that
none of the four would have been discharged had they
not been supporters of Local 5. First, MJL itself con-
nected the actions for which the men were discharged
with union aims. Second, Leach was personally antago-
nistic to, and worried about, Local 5.
Under these circumstances I can only conclude that
had the four employees not been union adherents: (I)
Leach would have been less biased in his evaluations of
their work; (2) Leach would have been more willing to
listen to the employees' claims that the grounds upon
which he criticized and disciplined them were mistaken
(the employees were correct, at least in part); and (3)
Leach would not have interpreted the employees' behav-
ior as expressions of a plan to destroy MJL.
I accordingly find that MJL would not have laid off
Myers on November 21, and would not have "indefinite-
ly suspended" Brooks, Pigford, and Ritz, but for the em-
ployees' support for Local 5.
3. The November 21 warnings as 8(a(l) violations
The written warnings issued on November 21 to
Brooks, Cekala, Myers, Pigford, and Ritz were issued on
much the same basis as the three indefinite suspensions
handed out on November 30 and Myers' layoff on No-
vember 21). Since the warnings would not have been
issued had the recipients not been Local 5 adherents.
MJL's issuance of the warnings violated Section 8(a)(1).
4. Leach's coerciv e statements
From the start of Local 5's organizing efforts in the
spring of 1978 on through November 1978. I.each made
a variety of statements that, whatever his motixe. clearl
had a reasonable tendency to interfere with, restrain, aid
coerce MJL's employees in the exercise of their Section
7 rights. As such, those statements were violations of
Section 8(a)(l). Considering only those statements made
within 6 months of the charge, the statements included:
(1) The claim that MJL would declare bankruptc if
Local 5 came in.
(2) The threat to fire Bernard Brooks for supporting
Local 5.
(3) The threat to give bad references to employers
considering hiring Brooks because of Brooks' union sym-
pathies.
(4) The claim that MJL would never let "the Union
come inll."
(5) Leach's statements to employees that he knew the\
were prounion and attacking them for it.
(6) L.each's statement to an employee, "If ou w.ant to
continue to work, stick with me [and oppose the
Union]."
5. The alleged 8(a)(5) violation
Leach had never asked for a doctor's excuse froml all
employee who had been out sick but. about 10 davs after
MJL's employees voted in favor of Local 5, Leach de-
manded that Brooks produce a doctor's excuse in con-
nection with Brooks' claimed illness of November 27- 2.
The General Counsel argues that that amounted to a uni-
lateral change in MJL's sick leave policy.
This allegation is without merit. As discussed, abo c,
Leach's demand of a doctor's excuse arose in a setting in
which (1) Brooks was absent the first 3 days of the hunt-
ing season; and (2) Leach was upset about production
levels at Brooks' jobsite and was operating under a belief
that Brooks was supporting an effort to put MJL out of
business. The demand for a doctor's excuse was thus a
response to a unique situation even in respect to the par-
ticular employee involved, and there is no evidence
whatever that Leach's one demand for a doctor's excuse
represented a policy change affecting MJL's employees
in general. Since a change in terms or conditions of em-
ployment affecting only one employee does not consti-
tute a violation of Section 8(a)(5), I will recommend
that the complaint's 8(a)(5) contention be dismissed.
6. Other Matters
From the summer of 1978 on, the chain of command
at MJL went from Leach to two "working foremen,"
Larry Hussar and Patsy Fidanzato, to MJL's rank-and-
file. The General Counsel contends that Hussar and Fi-
danzato were supervisors within the meaning of the Act
and that both made comments that violated Section
8(a)(1). MJL does not dispute the utterance of the coim-
ments alleged by the General Counsel, but it does claimt
giuli ()'('lo t CIr r,/ , (;' v f . (i .I , aInd t'lt ()( w , r
(hclet Bui(k-(;.% o. In-. 204 NlRB 7(1, 7(4 1474)
.I) DECISIONS OF NATIONAL LABOR RELATI()NS BO()ARI)
that neither Hussar nor Fidanzato was a supervisor
within the meaning of Section 2(11).
The evidence supports the General Counsel.
To begin with, MJL's work was spread out over sev-
eral jobsites that for long periods Leach visited relatively
infrequently. If Hussar and Fidanzato were not supervi-
sors, many of MJL's employees were accordingly with-
out supervision most of the time.
Secondly, although MJL claims that Fidanzato and
Hussar followed detailed plans drawn up by Leach in
carrying out and assigning work to the rank-and-file em-
ployees, the record fails to support that claim. In any
case, it is clear that both Hussar and Fidanzato had con-
siderable leeway in assigning men to specific tasks and in
transferring employees from one job to another, as the
need arose.
Third, both Fidanzato and Hussar were paid higher
wages than the other MJL employees for nonwork. not-
standing the greater seniority of many of the others.
Fourth, the men considered Fidanzato and Hussar to
be their supervisors. Moreover, none of the men noticed
any difference in the authority of Fidanzato and Hussar,
on the one hand, and on the other, two ex-MJL employ-
ees who were admittedly supervisors for purposes of
Section 2(11), Grandel and Daily.
Fifth, in Hussar's case: Hussar (and an attorney) repre-
sented MJL at the December 13 meeting with Local 5;
Leach relied heavily on Hussar's evaluatons in disciplin-
ing the employees at the Canonsburg site; and (c) Hus-
sar's educational background was substantially superior
to that of the rank-and-file employees.
Sixth, on at least one occasion Fidanzato took it upon
himself to end operations unusually early in the day.
Seventh, Fidanzato and Hussar were responsible for
inspecting the work of other MJL employees and order-
ing such corrections as they deemed necessary.
All things considered, it is evident that Fidanzato and
Hussar were MJL supervisors for purposes of the Act.
As for their comments-
Fidanzato twice told an MJL employee that "there
was no way Mark [Leach] would sign a contract with
Local 5"; and Hussar told an MJL employee that if he
"wanted to keep working to stick with Mark."
Both statements are, of course, clear violations of Sec-
tion 8(a)(l). Fidanzato's, because it suggests to MJL's
employees that any organizing efforts in support of
Local 5 would be futile, and Hussar's, because it amount-
ed to both a threat of discharge for supporting Local 5
and a promise of benefits for opposing Local 5.
CONCLUSIONS OF LAW
1. Respondent violated Section 8(a)(3) and (1) of the
Act by terminating the employment of employees Ber-
nard Brooks, Douglas Myers, Dennis Pigford, and
Robert Ritz because of their support for a labor organi-
zation, Local 5, thereby discouraging membership in
Local 5 and interfering with, restraining, and coercing
those employees in the exercise of the rights guaranteed
in Section 7 of the Act.
2. Respondent further interfered with, restrained, and
coerced employees in the exercise of the rights guaran-
teed in Section 7, thereby further violating Section
8(a)(1) by: (a) issuing disciplinary warnings to the em-
ployees named in paragraph I above and to Joseph
Cekala that would not have been issued but for employ-
ees' support for Local 5; (b) threatening that Respond-
ent's business would end if Local 5 became the collec-
tive-bargaining representative of Respondent's employ-
ees; (c) threatening to discharge employees for support-
ing Local 5; (d) threatening to blacklist an employee be-
cause of his support for Local 5; (e) creating the impres-
sion that union activities were under Respondent's sur-
veillance; (f) promising benefits to employees for oppos-
ing Local 5; and (g) uttering statements reasonably tend-
ing to lead employees to believe that it would be futile to
support Local 5.
3. Each of the unfair labor practices listed in para-
graphs I and 2 affect commerce within the meaning of
Section 2(6) and (7) of the Act.
4. Respondent did not violate Section 8(a)(5).
TH RIMlI)E
The recommended Order will require the following of
Respondent:
(1) To cease and desist from engaging in the unfair
labor practices set out above.
(2) To cease and desist from interfering with, restrain-
ing, or coercing in any like manner its employees in the
exercise of the rights guaranteed by Section 7 of the Act.
While Respondent did discriminatorily discharge em-
ployees and did violate Section 8(a)(1) in numerous fur-
ther respects, the violations all stemmed from a series of
unique circumstances. As shown by Respondent's satis-
factory relationship with the United Mine Workers and
its willingness to negotiate with Local 5 both in respect
to the discipline it took against employees and with
regard to a collective-bargaining agreement (see Resp.
Exh. R-l), Respondent has not demonstrated the general
disregard for its employees' rights that would warrant a
broader order. See Hickmort Foods, Inc., 242 NLRB 1357
(1979).
(3) To rescind the suspensions of Bernard Brooks,
Dennis Pigford, and Robert Ritz and make them whole
for any loss of earnings they may have suffered as a
result of Respondent's discrimination.
(4) To make Douglas Myers whole for any loss of
earnings he may have suffered by reason of Respondent's
discrimination that resulted in his being laid off 2 weeks
earlier than he otherwise would have been. "
(5) To notify its employees of the action being ordered
by the Board.
[Recommended Order omitted from publication.]
"' Loss of earnings shall hbe cmpuied as prescribed in k: H' 14iRlworth
(Comnpany. 90 NLRH 289 (1950), plus interest as set forth in lv Plumbing
& IHeing Co., 138 NLRB 716 (1962), and Florida Sel Corporation. 231
NLRB 651 (1977).
' See f 10, upru.