Quality Abestos Removal

National Labor Relations Board - Board Decisions

Apr 30, 1993

310 N.L.R.B. 1214 (N.L.R.B. 1993)

1214
310 NLRB No. 208
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel has moved to strike the Respondent’s ex-
ceptions for failure to comply with Sec. 102.46(b)(1) of the Board’s
Rules and Regulations. Sec. 102.46(b)(1) provides in pertinent part:
Each exception (i) shall set forth specifically the questions of
procedure, fact, law, or policy to which exception is taken; (ii)
shall identify that part of the administrative law judge’s decision
to which objection is made; (iii) shall designate by precise cita-
tion of page the portions of the record relied on; and (iv) shall
concisely state the grounds for the exception.
Sec. 102.46(b)(2) of the Board’s Rules states that any exception
which does not comply with the requirements of the foregoing sec-
tion ‘‘may be disregarded.’’ Although the Respondent’s exceptions
include argumentation not specifically linked to any finding of the
judge or evidence in the record, we find that the exceptions ade-
quately contest the judge’s credibility findings, and we will consider
them to that extent.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
Quality Abestos Removal, Southeast, Inc., and
International Association of Heat & Frost
Insulators and Asbestos Workers, Local Union
No. 55, AFL–CIO. Case 15–CA–11714
April 30, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On November 25, 1992, Administrative Law Judge
Richard J. Linton issued the attached decision. The Re-
spondent filed exceptions, and the General Counsel
filed an answering brief and a motion to strike the ex-
ceptions.1
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Quality Asbestos Removal,
Southeast, Inc., Mobile, Alabama, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order.
Charles R. Rogers, Esq. and (trial only) Mark J. Kaplan,
Esq., for the General Counsel.
Brenda Walker (Owner, QAR Southeast, Inc.), of Mobile,
Alabama, for the Respondent Employer.
Gerald R. Driskell (Bus. Mgr., Asbestos Workers Local 55),
of Mobile, Alabama, for the Charging Party.
DECISION
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge. This case
involves Quality Asbestos Removal, Southeast, Inc.’s (QAR)
July 1991 discharge of two industrial insulators (W. A. Ross
and B. E. Corrales) and the layoff of three others (W. L.
Fitzgerald, B. Cayton, and J. D. Pierce) shortly after Local
55 began an organizing campaign among QAR’s employees
working at Degussa Corporation’s Theodore, Alabama chem-
ical plant.
Crediting the Government’s witnesses, and disbelieving
QAR’s sole witness (former) Superintendent Scott Overstreet,
I find in favor of the Government. Because, as the parties
agree, QAR has gone out of business, I shall order condi-
tional reinstatement, that QAR make whole, with interest, the
five discriminatees from their termination to the date, as de-
termined in compliance, each would have been laid off had
he not been unlawfully terminated in July 1991. Finally, I di-
rect that QAR mail copies of the notice to employees to each
employee employed at its Degussa jobsite at any time from
July 1 through July 17, 1991.
I presided at this 2-day trial, August 10-11, 1992, in Mo-
bile, Alabama, pursuant to the January 28, 1992 complaint
issued by the General Counsel of the National Labor Rela-
tions Board through the Regional Director for Region 15 of
the Board. The complaint is based on a charge filed Decem-
ber 13, 1991, by International Association of Heat & Frost
Insulators and Asbestos Workers, Local Union No. 55, AFL–
CIO (Union, Local 55, or Charging Party) against Quality
Asbestos Removal, Southeast, Inc. (QAR, Respondent, or
Company). All dates are for 1991 unless otherwise indicated.
The General Counsel alleges in the complaint that QAR
violated Section 8(a)(3) and (1) of the Act, 29 U.S.C.
§ 158(a)(3) and (1) by issuing ‘‘verbal’’ warnings to William
Fitzgerald and Andy Ross about July 3; about July 5 by lay-
ing off Fitzgerald; about July 6 by terminating Ross; about
July 8 by terminating B. E. Corrales Jr.; and about July 17
by laying off Bruce Cayton and Jerry Pierce. Admitting the
facts alleged, QAR denies any violation.
The General Counsel and QAR filed posthearing briefs.
The General Counsel attached a proposed order and a pro-
posed notice to the Government’s brief. QAR was rep-
resented by its owner, Brenda Walker, at the hearing and in
the submission of QAR’s brief. Although the General Coun-
sel has not filed a reply brief pointing to factual statements
by Walker on brief which are outside the record (such as an
experiment and a posthearing investigation by Walker, Br. at
2, 4, and company history, Br. at 7), nor to a document, at-
tached to the brief, which was not identified or offered in
evidence at the hearing, I shall disregard these items and at-
tach no weight to them. At the same time, I note that Walk-
er’s submission appears entirely sincere and, for someone not
an attorney or management consultant experienced in NLRB
proceedings, Walker seems to have represented QAR rather
ably.
In addition to disregarding the items in QAR’s brief, I also
shall disregard statements in the Government’s brief referring
1215QUALITY ASBESTOS REMOVAL
1 References to the two-volume transcript of testimony are by vol-
ume and page. Exhibits for the General Counsel are designated G.C.
Exh. and for the Respondent are designated R. Exh.
2 M. Lichtheim, 1 Ancient Egyptian Literature 61, 68 (University
of California Press 1973, 1975).
3 ‘‘Dinner: The meal Southerners eat while Northerners are eating
lunch. When the Northerners are eating dinner, Southerners are eat-
Continued
to matters outside the record, such as whether an election pe-
tition ever was filed (Br. at 4).
Because QAR was represented by Owner Walker, a person
neither an attorney nor experienced in unfair labor practice
trials before the Board, I advised the parties that the pro-
ceeding would accord QAR fundamental fairness and due
process (1:9, 156–157.)1 See American Cleaning Co., 291
NLRB 399 fn. 1 (1988). Indeed, going beyond fundamental
fairness at times, I informed Walker, for example, that she
was entitled to ask to see any statements of the Govern-
ment’s witnesses when they had completed their direct exam-
ination. (1:40, 64.)
In ancient Egypt the highest official appointed by a Phar-
aoh was the vizier. The vizier’s duties were so important and
so numerous that the Pharaoh personally installed him in a
public ceremony at which the Pharaoh gave the vizier a for-
mal charge. M. Lichtheim, 2 Ancient Egyptian Literature 11
(University of California Press, 1976). Aside from duties
which compare with a modern chief of staff and secretary of
state, the vizier served as the Pharaoh’s chief justice. J.
White, Ancient Egypt 47–48 (1970).
Ptahhotep was one of the earliest viziers. He served a king
of the Old Kingdom’s Fifth Dynasty, the Pharaoh Isesi,
around 2350 B.C. As one of Ancient Egypt’s earliest and
most famous sages, Ptahhotep left 37 maxims, or wisdom in-
structions. From across the centuries, through the translation
of Professor Miriam Lichtheim,2 Chief Justice Ptahhotep be-
queaths to all judges his ancient pearl of grace and wisdom:
Not all one pleads for can be granted,
But a good hearing soothes the heart.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and QAR, I make the following
FINDINGS OF FACT
I. JURISDICTION
A corporation, QAR’s principal office is, or was during
the relevant time, at Mobile, Alabama. QAR, a contractor,
applies and removes industrial insulation in the construction
industry. During calendar year 1991, QAR performed serv-
ices valued at $50,000 or more outside Alabama. I find that
QAR is an employer within the meaning of Section 2(2), (6),
and (7) of the Act.
II. LABOR ORGANIZATION INVOLVED
Record evidence establishes, and I find, that the Union is
a labor organization with the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Credibility Resolved
Nine witnesses testified, eight called by the General Coun-
sel and one, Scott Overstreet, called by QAR. The General
Counsel recalled one witness at the rebuttal stage, and QAR
called no witnesses in surrebuttal.
Having closely observed the witnesses, I credit those
called by the Government. I disbelieve Scott Overstreet on
disputed matters. Accordingly, in the pages which follow, my
findings are based on the version given by the Government’s
witnesses.
B. Organizing Begins; Terminations Follow
Headquartered in Germany, Degussa Corporation operates
a large chemical plant at Theodore, a town situated a few
miles southwest of Mobile. (2:239–240.) Degussa’s Theodore
plant is the situs of the work involved in this case. QAR
began working at the plant before June 1991. (2:299.) The
work in this case was done by teams of two insulators. (1:56,
86, 144.) The teams wrapped strips of spun glass insulation
around 18- to 24-inch piping. (1:44, 56, 71–74, 181.)
Gerald R. Driskell is Local 55’s business manager and fi-
nancial secretary. (1:19.) In response to a June 5 newspaper
advertisement (G.C. Exh. 2) seeking an insulation foreman
and insulators for a ‘‘long term job’’ in the ‘‘Mobile area,’’
Driskell telephoned the number shown. (No employer’s name
was stated.) Learning that the employer was QAR (1:21),
Driskell launched an organizing campaign by referring job
applicants. John P. McLellan was one of two referred the fol-
lowing day, with McLellan applying for the foreman’s posi-
tion. (1:22.) McLellan was hired as the foreman over the
south end of the job, reporting to Scott Overstreet. (1:23, 99–
100.) Over the next 2 to 3 weeks, Driskell sent 19 employees
to apply, and 15 were hired. (1:22.)
Scott Overstreet was the job superintendent for QAR at
Degussa. (2:198, 241.) Assisting Overstreet were two fore-
men, Harold Cawthorn and McLellan, and a leadman, Willie
Parker. (2:241–242.) Overstreet testified that he reported to
Brenda Walker. (2:241.)
On Monday, July 1, some of QAR’s insulators began
wearing a large button (G.C. Exh. 7, some 2.25 inches
across) with red capitalized lettering, on a white background.
The big red letters read: ‘‘VOLUNTARY UNION ORGA-
NIZER,’’ with ‘‘Union’’ appearing in larger print than the
other two words. The employees wearing the buttons in-
cluded Fitzgerald (1:48), Ross (1:76), and Bernard E.
Corrales Jr. (1:117). They wore the buttons openly on their
outer garments. (1:165–169.) Because they attended an as-
bestos abatement class on July 1 (G.C. Exh. 6), others did
not appear with their buttons until July 2, including Bruce
Cayton (1:160–161, 180) and Jerry D. Pierce (1:170, 174).
Solicitation to sign authorization cards also began. Card sign-
ing usually occurred, in the words of several witnesses, at
‘‘dinnertime,’’ the noon meal.3 (1:49, 175.)
1216 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing supper.’’ Steve Mitchell, How To Speak Southern (Bantam
Books, 1976).
4 Norris and Shershin, How To Take A Case Before the NLRB 55–
56 (6th ed. BNA, 1992).
By termination slips dated (Friday) July 5, and signed by
Scott Overstreet, QAR laid off (G.C. Exh. 9, ‘‘R.O.F.’’) Fitz-
gerald, fired Ross for absenteeism (G.C. Exh. 11), and fired
Corrales because he ‘‘Walked off job.’’ (G.C. Exh. 14.) Ter-
mination (layoff) slips, with ‘‘Reduction In Force’’ checked,
and dated (Wednesday) July 17, were issued to Bruce Cayton
(G.C. Exh. 15) and Jerry Pierce (G.C. Exh. 17).
C. The July 5, 1991 Terminations
1. Foreman McLellan fired; Union delivers letter
Shortly after work began on Friday, July 5, Superintendent
Overstreet fired Foreman McLellan, purportedly over time-
sheets. (1:104–105.) Because McLellan and Corrales alter-
nated driving to work (1:105, 127), and Corrales had driven
that morning, McLellan, advising Overstreet of that fact,
asked if it would be permissible for Corrales to drive him
home. As McLellan lived a far distance, he suggested that
Corrales simply return to work the next day. That would be
fine, Overstreet answered. (1:105–106.) [Overstreet denies,
2:202, but I do not believe him.] McLellan went to Corrales,
informed him of the situation, and they left, passing within
15 feet from where Overstreet and another person were
standing. Neither pair spoke to the other. (1:105–107, 127–
129, 136.)
Proceeding to the Union’s office, McLellan and Corrales
reported to Driskell that McLellan had been fired. (1:23,
108–109, 129.) Driskell then prepared a letter (G.C. Exh. 3)
which he, accompanied by McLellan, delivered about 9
o’clock that morning to Brian Walker. [Although the plead-
ings establish that Brian Walker is QAR’s vice president,
when McLellan answered the newspaper ad on June 6, Bren-
da Walker ushered McLellan into Brian Walker’s office
where Brian Walker interviewed him and referred him to
Overstreet for the hiring decision.] (1:100, 109.)
Addressed to Brian Walker at QAR, Driskell’s letter, on
the Union’s stationery, advised that the Union was trying to
organize QAR, named seven employees who were the ‘‘Vol-
untary Union Organizers,’’ warned that the Act protected the
seven from harassment and ‘‘deferential’’ treatment [‘‘dis-
criminatory’’ treatment presumably intended], asserted that
because the Union had the ‘‘required 30% of representation
cards signed, I formally request that you negotiate with Local
55 and I will be filing a petition for election with the
NLRB.’’
Of course, Driskell’s letter reflects a confusion of the need
to have majority support for a recognition demand with the
Board’s requirement for a 30-percent showing of interest to
conduct an election. Granting recognition to a minority sup-
ported union violates Section 8(a)(2) of the Act (so majority
support is necessary for lawful recognition),4 and the Board,
implementing the statutory [29 USC 159(c)(1)(A)] require-
ment for a ‘‘substantial number,’’ requires a 30-percent
showing of interest to justify the Agency’s processing a peti-
tion for a representation election. 29 CFR 101.18(a); 2
NLRB Casehandling Manual 11020, 11022.3a (Sept. 1989);
Hardin, 1 The Developing Labor Law 378 (3d ed. 1992,
ABA, BNA).
Respecting the employees Driskell names in his letter, the
seven are, in the order listed:
William Fitzgerald Jr.
William Ross
Bruce Cayton
Jerry Pierce
Michael Hamilton
Curtis Hamilton
Gene Corrales
Responding in their office meeting, Vice President Walker
told Driskell (1:24) and McLellan (1:110) that with so many
nonunion contractors as his competitors there was no way he
could consider recognizing the Union, and that if his com-
pany were organized he would pack his bags, close the
doors, and shut it down. Vice President Brian Walker did not
testify.
About 1 p.m. that day Driskell received a telephone call
from Brenda Walker advising him that she owned QAR.
Driskell therefore mailed to ‘‘Mrs. Walker, Owner,’’ a dupli-
cate letter. (G.C. Exh. 4; 1:26–27.) The following Monday,
July 8, Driskell received Owner Walker’s letter of July 5
(G.C. Exh. 5), in which she asserts that the Union is short
its ‘‘needed votes’’ and reminds, as she informed him during
their telephone conversation, that ‘‘QAR Southeast is a mi-
nority, woman-owned Alabama Corporation, and I am en-
closing a copy of my certificate for your records.’’ (1:28.)
According to Superintendent Overstreet, before he received
a call from Vice President Walker the afternoon of July 5,
informing him of the visit by Driskell and McLellan, Over-
street had never seen anyone wearing union organizer but-
tons, and no one had informed him of any union activity.
(2:199-200.) I do not believe Overstreet.
2. Fitzgerald laid off; Ross fired
a. General
Hired around June 20 (1:44–47, 68), Fitzgerald and Ross
worked as one of the insulating teams. (1:56.) They worked
under Foreman Harold Cawthorn. (1:45.) During his first
week on the job Fitzgerald and Ross notified Overstreet of
a class to be held on July 2 to train and certify, or recertify,
for removing asbestos. Overstreet said that would be fine,
that they could go, that QAR needed employees who were
certified in asbestos removal. (1:59–60, 82–83.)
The training classes, sponsored by the Union, are con-
ducted by a firm at the Union’s hall in Mobile. The training
and testing firm notifies the State of Alabama which then
issues a certification which authorizes the person to remove
asbestos in Alabama. The Union also is notified of the cer-
tification because all employees referred for asbestos abate-
ment must be certified by Alabama. (1:27–32.)
Either in that same conversation (1:89, Ross), or possibly
a different one (1:61–62, Fitzgerald) that same first week of
the employment of Fitzgerald and Ross, Superintendent
Overstreet came and asked Fitzgerald and Ross how long
they had been members of Local 55. Fitzgerald said 15
years, and Ross answered 20 years. Overstreet said he had
been a member of the Houston Local. He complimented their
1217QUALITY ASBESTOS REMOVAL
work, saying he knew by looking at their work that they
were experienced insulators. Although he did not address this
conversation, Overstreet testified that in 1983, he had taken
a withdrawal status from the the Houston Local. (2:199,
295.)
Notwithstanding Overstreet’s having complimented Fitz-
gerald and Ross on their work, apparently the week pre-
ceding the week of Monday, July 1, the morning Fitzgerald
and Ross came to work wearing their union organizer but-
tons, Foreman Cawthorn approached Ross and told him that
‘‘the man’’ (meaning Overstreet) said that he would be fired
if he did not ‘‘pick up’’ his work. Ross said they were doing
as much as the others. (1:84–85). This testimony is
uncontradicted.
On July 2, Fitzgerald and Ross attended the Union’s as-
bestos removal class. (G.C. Exh. 6.) The next day, Wednes-
day, July 3, Cawthorn, with Overstreet present, told Fitz-
gerald and Ross, in the presence of insulators Curtis Ham-
ilton and his brother Michael, that they were not producing
enough, that they had wrapped (‘‘run’’) only 40 to 50 feet
the previous day, whereas the Hamilton brothers had run
some 120 feet. Not so, Curtis Hamilton spoke up, for the
Hamiltons had wrapped only about 60 feet. (1:53–55, Fitz-
gerald; 85–86, Ross.) Curtis Hamilton confirms this. (1:143.)
At that time the Hamilton brothers were not wearing the
union buttons and did not begin wearing theirs until after
Ross was fired. (1:147, 164.)
Complaint paragraph 7, with conclusory paragraph 13, al-
leges that QAR violated Section 8(a)(3) and (1) of the Act
by the July 3 oral warning issued by Cawthorn/Overstreet.
b. William L. Fitzgerald
(1) Facts
When the job was rained out about 1 p.m. on Friday, July
5, Cawthorn gave Fitzgerald a copy of a July 3 memo (G.C.
Exh. 8) from Overstreet to all employees that beginning
(Sunday) July 7, employees would begin 12-hour days with
the possible necessity of double shifts. At the same time
Cawthorn gave Fitzgerald his termination notice (G.C. Exh.
9) for ‘‘R.O.F.,’’ meaning, Fitzgerald testified (1:51), reduc-
tion of force. (1:50–53.) Proceeding to the office Fitzgerald
asked Overstreet why he had been terminated. ‘‘You got a
reduction in force. That’s all you need to know,’’ Overstreet
replied. (1:51.) The following Monday, July 8, Bernard E.
Corrales (1:133–134), Curtis Hamilton (1:144–145), and
Jerry D. Pierce (1:176), observed that QAR had hired some
6 to 12 new employees.
(2) Discussion
QAR’s complimentary attitude toward Fitzgerald and Ross,
expressed by Overstreet in late June, began to sour the fol-
lowing week when the two came to work wearing their union
organizer buttons. Criticism of the two quickly followed, in-
cluding the oral warning of July 3. On Friday, July 5 (July
4 was a scheduled holiday, 1:158), just 4 hours after the
Union had delivered its letter including Fitzgerald’s name as
one of the organizers, and while QAR was distributing an
Overstreet memo advising of expanded hours and possible
double shifts, QAR terminated Fitzgerald as a reduction in
force—as if there were insufficient work available.
No sooner had Fitzgerald departed than QAR hired several
new employees. With these facts, plus the July 3 false accu-
sation of low productivity, and the antiunion animus ex-
pressed the morning of July 5 by Vice President Walker, I
find that the General Counsel established a strong prima
facie case that the union activities of Fitzgerald and Ross
were a motivating factor in their discharges. I turn now to
determine whether QAR carried its burden of demonstrating,
by a preponderance of the evidence, that it would have taken
the same action absent any union considerations.
Scott Overstreet testified that QAR found it necessary to
cut back because Degussa did not release a tie-in schedule,
that the overtime was never worked, and that on the basis
of productivity, absenteeism, and seniority he selected Fitz-
gerald for layoff. (2:201–202.) No records were introduced to
support Overstreet’s testimony. The credited evidence shows
that the Fitzgerald/Ross team was as productive as the others.
As for absenteeism, Fitzgerald missed only 2 days, the first
being his second day on the job, and the second being the
approved attendance at the asbestos abatement certification
class. (1:58–60.) I find Overstreet’s reasons to be false. QAR
having failed to meet its burden of proof, I shall order that
it make Fitzgerald whole, with interest.
I also find that, absent the union activities of Fitzgerald
and Ross, QAR would not have issued to them the oral
warning of July 3, 1991. By this oral warning, QAR violated
Section 8(a)(3) and (1) of the Act.
c. William Andrew Ross
(1) Facts
As mentioned earlier, the July 5, 1991 termination slip
(G.C. Exh. 11) which Overstreet signed for Ross reflects that
Ross was fired for absenteeism. Ross missed 3 days. His first
absence occurred in his first week when Fitzgerald became
ill. Because his own vehicle was disabled, Ross was riding
with Fitzgerald. (1:81.) Fitzgerald called QAR and reported
that both he and Ross would not be at work. (1:58–59.)
Ross was absent on Tuesday, July 2, when he and Fitz-
gerald attended the Union’s asbestos abatement class for his
recertification by Alabama. (1:82.) As I have found, in the
days before Fitzgerald and Ross began wearing their union
organizer buttons, Superintendent Overstreet personally ap-
proved their attending the recertification class on July 2.
Ross is unable to confirm whether he reminded Overstreet on
July 1 that he would be absent the following day. (1:91.)
For his third absence Ross was sick on Friday, July 5.
(1:83.) Not only did Fitzgerald report to Foreman Cawthorn
that Ross was ill and would not be in (1:60–61), but Curtis
Hamilton, who earlier had learned from Fitzgerald that Ross
was sick, also told Cawthorn and Overstreet as well. (1:146–
147, 152–153.) Ross testified that he never received any
warnings about absenteeism. (1:83.)
Testifying that he does not ‘‘recall’’ receiving any mes-
sage that Ross would miss work (2:200), Superintendent
Overstreet admits that he never (personally) warned Ross
about his absenteeism (2:248, 252), and that QAR had no
written attendance policy (2:249). According to Overstreet,
he generally followed the ‘‘three strikes and you’re out’’
rule, although (2:249–252) he also weighed the cir-
cumstances of whether the employee called in and whether
his work performance was good.
1218 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
QAR offered no evidence that Ross’ job performance was
less than satisfactory. As I discussed respecting Fitzgerald,
the July 1 and July 3 complaints by Hawthorn and Overstreet
were false accusations created as pretexts to justify future
discipline because the two had begun wearing union orga-
nizer buttons.
Although Overstreet never (personally) warned Ross about
absenteeism, he asserts that he told Ross’ foreman,
Cawthorn, to do so and Cawthorn reported back that he had
done so. This was for the first two absences. (2:255–257.)
I do not believe Overstreet.
Contained in the personnel file QAR maintained for Ross
are three warnings purporting to be from Overstreet to Ross
for violating ‘‘QAR Policy’’ respecting absenteeism. The
first (G.C. Exh. 19) was for violating that policy on
(Wednesday) June 26; the second (G.C. Exh. 20), for July
2; and the third (G.C. Exh. 21), for July 5. Overstreet con-
cedes that he has never seen these documents and cannot
identify the handwriting on them. (2:254–255.) The General
Counsel argues (Br. at 26) that QAR fabricated the three
documents as a fraudulent scheme to deceive the State of
Alabama when QAR filed its July 19 response (G.C. Exh.
22) opposing (on the basis Ross had been warned three
times) Ross’ claim for unemployment compensation. (Of
course, as Ross’ third absence came on July 5, he was not
present to receive any third warning that day.)
Although the job was rained out when Ross reported for
work on July 6, Cawthorn handed him his check and the ter-
mination slip signed by Overstreet. (1:79–80.)
(2) Discussion
As I have described earlier when discussing the Fitzgerald
Ross team, I find that the General Counsel established a
strong prima facie case of unlawful motivation. Crediting the
employees and disbelieving Overstreet, I find that the Fitz-
gerald Ross team had been complimented in late June, only
to be criticized as soon as they began wearing their union
buttons. The criticism reached the blatantly false level on
July 3 when Cawthorn, with Overstreet present, falsely as-
serted—with the Hamilton brothers present—that the Ham-
ilton brothers had wrapped twice as much pipe the previous
day. Curtis Hamilton, not then wearing a union button, cor-
rected Cawthorn.
The animus expressed by Vice President Walker was re-
flected in the false basis for Fitzgerald’s layoff, and Over-
street’s (discredited) denial of ever receiving notice that Ross
would be absent. Indeed, Overstreet himself had given ad-
vance approval for Ross to attend the July 2 class. While
Overstreet was not opposed to an insulator being a union
member, his reaction, and that of QAR, was strongly dif-
ferent when a member began organizing QAR.
Even if Ross can be faulted for not reminding Overstreet
(or Cawthorn) on July 1 that he would be attending the
Union’s recertification class the next day (and assuming he
failed to do so), the evidence is still heavily weighted toward
unlawful motivation. Because Overstreet falsely (I have
found) denies receiving notice that Ross would be absent in
June and again on July 5, I infer that QAR seized on absen-
teeism as a pretext to mask its real motive of getting rid of
a union activist.
Did QAR carry its burden to demonstrate that absent any
union activities by Ross that it would have fired him any-
how? The answer is no. Overstreet’s reasons for termination
(absenteeism, failure (implied) to call in, and (implied) less
than good work performance) have all been found to be
false. Accordingly, I shall order that Ross be made whole,
with interest.
3. Bernard E. Corrales Jr. fired
a. Facts
As I mentioned in discussing Ross’s case, rain canceled
the work for Saturday, July 6. Corrales went to the job but
could not get in to work. (1:129–130.) When Corrales re-
ported to work on Monday, July 8, Overstreet handed him
a termination slip (G.C. Exh. 14) and told Corrales that he
was terminated. The reason stated on the slip states ‘‘Walked
Off Job.’’ When Corrales protested that McLellan had told
him that Corrales was leaving the site with McLellan, Over-
street responded that it ‘‘makes no difference’’ and ‘‘You’re
terminated.’’ Overstreet turned and walked away. (1:131–
132.)
Supplementing his (discredited) denial of approving
Corrales’ July 5 departure with McLellan, Overstreet asserts
that he first learned of Corrales’ departure when the Degussa
security guard at the gate called and reported that Corrales
had left the site without moving his timecard and that Over-
street himself had to go move it. (2:202, 271–274.) Without
going into detail, I note that such a failure, had it occurred,
could have been a safety problem because the discrepancy
could have interfered with Degussa and QAR obtaining a
correct count of personnel (‘‘head count’’) on the site in the
event of an explosion or other disaster. However, this factor
is lessened by knowledge that the guard at the second, outer,
gate keeps a sign-out book (2:296) for employees leaving the
job. (No party offered evidence concerning whether Corrales
signed out.)
I note that QAR’s assertion at trial that Corrales failed to
move his timecard was not described in Owner Walker’s De-
cember 23 position letter to NLRB Region 15. (2:285–288.)
I need not dwell on this point because I credit McLellan
(1:108) and Corrales (1:129) that Corrales moved his time-
card from the inside rack to the outside slot as he and
McLellan left the jobsite on July 5.
b. Discussion
Given QAR’s antiunion animus, Corrales, who began
wearing the organizer button on July 1, had his fate sealed
the morning of July 5 when Driskell delivered the letter nam-
ing Corrales and six others as those voluntarily organizing
for the Union. Reneging on the approval he gave McLellan
shortly after work began the morning of July 5 (and before
Driskell delivered the letter to Vice President Walker around
9 a.m.), and, in effect, telling Corrales the morning of July
8 that the approval he gave on July 5 was immaterial, Over-
street brusquely told Corrales on July 8 that he was termi-
nated.
The timing and demonstrated falsity (of Overstreet’s denial
that he approved Corrales’ departure, and the falsity of
Overstreet’s assertion that Corrales did not move his time-
card) establish a strong prima facie case that QAR unlaw-
fully fired Corrales. As I have found QAR’s reasons (no no-
tice Corrales leaving site; failed to move timecard to outside
rack) to be false, it is clear that QAR has failed to carry its
1219QUALITY ASBESTOS REMOVAL
burden of demonstrating that it would have terminated
Corrales even aside from his union activities. Accordingly, I
shall order QAR to make Corrales whole, with interest.
4. Bruce Cayton and Jerry D. Pierce laid off
a. Facts
Hired about June 12, Bruce Cayton and Jerry D. Pierce
were laid off on (Wednesday) July 17. Their termination
slips (G.C. Exhs. 15, 17), signed by Overstreet, reflect that
each was laid off because of a ‘‘Reduction In Force.’’ How-
ever, Pierce testified without contradiction that the building
he (and Cayton) were working on was far from complete,
that some employees were working 12-hour days and that
QAR was still hiring employees. (1:180.) When Cawthorn
gave them their layoff slips he gave no explanation. (1:162,
178.)
Cayton and Pierce, who attended the Union’s recertifi-
cation class for asbestos removal on July 1, began wearing
their union organizer buttons on July 2. They wore them
where the buttons were visible. (1:164–165, 170–174.) As I
have noted, their names are on the letter which Driskell de-
livered on July 5 listing the employee organizers. In June,
Pierce testified, Superintendent Overstreet complimented
Pierce, Cayton, and two others on the amount of work they
were doing. (1:181–185.)
The day Ross received his termination notice, Monday,
July 8, the same day QAR hired several new employees,
some of whom were speaking Spanish, Pierce asked Foreman
Cawthorn whether he could speak Spanish. ‘‘Yes,’’
Cawthorn replied. This was during ‘‘dinner.’’ ‘‘Well,’’
Pierce said, ‘‘you got these Mexicans over here. Can you in-
terpret this card to them so they can understand what I’m
trying to talk to them about?’’ Cawthorn’s rejection was
blunt: ‘‘Well, I ain’t got nothing to do with that damn union
card, and I ain’t got nothing to do with them unions.’’
(1:175–177, 188.) Suggesting that he, too, had been working
12 hours a day before asking Cawthorn to interpret the union
cards to the Spanish speaking employees, Pierce testified that
thereafter he worked only 8 hours a day. (1:180.)
Overstreet’s testimony respecting the layoff of Cayton and
Pierce is very brief. According to Overstreet ‘‘Degussa was
supposed to have released some lines to us and they didn’t
and it became necessary that we have a reduction in force.’’
(2:226.) I disbelieve that testimony the same as I disbelieve
his denial (2:226) that he ever saw Cayton or Pierce wearing
the union organizer buttons.
b. Discussion
The Government’s prima facie case consists of knowledge,
animus (Brian Walker, Harold Cawthorn), timing (a few days
after the Union’s July 5 letter and shortly after Pierce asked
Foreman Cawthorn to interpret for him so he could solicit
the new employees who spoke Spanish to sign union cards),
and a false reason given for the layoffs (in fact the work was
incomplete and new employees still were being hired).
QAR made no effort to show that it would have laid off
Bruce Cayton and Jerry D. Pierce even if they had not been
active for the Union, and the reason it gave at the hearing—
lack of work from Degussa—is without specifics and, I have
found, false. Finding the layoffs of Cayton and Pierce unlaw-
ful, I shall order QAR to make these two whole, with inter-
est.
CONCLUSION OF LAW
By orally warning employees on July 3, by discharging
two employees on July 5, and by laying off a total of three
more employees on July 5 and 17, 1991, QAR has engaged
in unfair labor practices affecting commerce within the
meaning of 29 U.S.C § 158(a)(3) and (1) and 29 U.S.C.
§ 152(6) and (7).
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
QAR’s work at the Degussa jobsite appears to have ended
in early 1992 (2:247), and it also appears that QAR has
ceased operations at that time. At trial the General Counsel
stated (1:78) that ‘‘The company has closed.’’ In QAR’s
posthearing brief, Brenda Walker asserts that substantial
losses in 1991 forced the Company to close ‘‘effective April
24, 1992.’’ (Br. at 7.) The parties may develop at the compli-
ance stage such matters as verifying the date of closing,
whether QAR is in bankruptcy, whether QAR has any money
or other assets, and whether there are any prospects Brenda
Walker will resume operations at QAR (if QAR has not been
dissolved) or under another corporate name.
The General Counsel has submitted a proposed order and
notice requiring the usual offers of reinstatement, making
whole, with interest, and posting of the notice. But QAR, if
it still exists as a corporate entity, has ceased operations, and
it is not even clear that QAR has an office. QAR being
closed, there are no jobs to offer the discriminatees reinstate-
ment to. There may be no money for backpay or any place
to post a notice should there be job applicants to see the no-
tice. All these details will have to be ascertained at the com-
pliance stage.
As the parties agree that QAR has gone out of business,
I shall order QAR to offer each of the five discriminatees re-
instatement conditioned on QAR’s resumption of the same or
substantially similar business operations. Beech Branch Coal
Co., 260 NLRB 907 (1982). Such offers shall be for imme-
diate and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or
privileges previously enjoyed.
QAR having discriminatorily terminated employees, it
must make them whole for any loss of earnings and other
benefits, computed on a quarterly basis from the date of their
terminations to the date (to be determined at compliance)
each, absent their unlawful termination, would have been laid
off from the Degussa project, less any net interim earnings,
as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
plus interest as computed in New Horizons for the Retarded,
283 NLRB 1173 (1987).
If the compliance investigation reveals that QAR maintains
an office where job applicants register, then QAR shall post
there a copy of the notice to employees, marked ‘‘Appen-
dix.’’ In any event, QAR shall mail copies of the notice to
employees, marked ‘‘Appendix,’’ to all employees employed
1220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
6 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
on its payroll at the Degussa Corporation jobsite at Theo-
dore, Alabama, at any time from July 1, 1991, through July
17, 1991, to their last known addresses. QAR shall furnish
proof to the Regional Director of such mailing. Print-Quic,
262 NLRB 857, 862 (1982).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondent, Quality Asbestos Removal, Southeast,
Inc., Mobile, Alabama, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Warning employees about their work performance in
retaliation for activities protected by Section 7 of the Act.
(b) Terminating or otherwise discriminating against any
employee for supporting International Association of Heat &
Frost Insulators and Asbestos Workers, Local Union No. 55,
AFL–CIO, or any other union.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Should QAR resume industrial insulation or asbestos
abatement work, or both, then offer reinstatement to the five
employees named below, in the manner described in the rem-
edy section of the decision:
Bruce Cayton
Bernard E. Corrales Jr.
William L. Fitzgerald
Jerry D. Pierce
William A. Ross
(b) Make whole the five above-named discriminatees in
the manner set forth in the remedy section of the decision.
(c) Remove from its files any reference to the unlawful
terminations and notify the employees in writing that this has
been done and that the terminations will not be used against
them in any way.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Should QAR have an office then, as set forth in the
remedy section of the decision, QAR shall post copies of the
attached notice marked ‘‘Appendix.’’6 Copies of the notice,
on forms provided by the Regional Director for Region 15,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(f) In any event, QAR shall mail copies of the attached
notice to employees, marked ‘‘Appendix,’’ to all employees
employed on its payroll at the Degussa Corporation jobsite
at Theodore, Alabama, at any time from July 1, 199l,
through July 17, 1991, to their last known addresses, and fur-
nish proof to the Regional Director of such mailing.
(g) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT warn you in retaliation because you engage
in activities on behalf of International Association of Heat &
Frost Insulators and Asbestos Workers, Local Union No. 55,
AFL–CIO (Union), or any other union.
WE WILL NOT discharge or otherwise discriminate against
any of you for supporting Local 55 or any other union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
1221QUALITY ASBESTOS REMOVAL
WE WILL offer reinstatement, should we resume the work
of industrial insulation or asbestos abatement, or both, to the
following five discriminatees, and WE WILL make each
whole, with interest:
Bruce Cayton
Bernard E. Corrales Jr.
William L. Fitzgerald
Jerry D. Pierce
William A. Ross
WE WILL notify each of them that we have removed from
our files any reference to his termination and that the termi-
nation will not be used against him in any way.
WE WILL mail copies of this notice to each employee em-
ployed on our payroll at the Degussa Corporation jobsite at
Theodore, Alabama, at any time from July 1, 1991, through
July 17, 1991, to his or her last known address, and WE WILL
furnish the Regional Director proof of such mailing.
QUALITY ASBESTOS REMOVAL, SOUTHEAST,
INC.