T.M.I.

National Labor Relations Board - Board Decisions

Feb 28, 1992

306 N.L.R.B. 499 (N.L.R.B. 1992)

499
306 NLRB No. 95
T.M.I.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
1 The Respondent’s unopposed motion to correct the record, dated
April 23, 1991, is granted and received into evidence as R. Exh. 19.
Also, as provided for at the hearing, Jt. Exh. 3 (a list of employees
transferred to and from the ‘‘ Mead Shutdown’’) was filed by letter
of April 9, 1991, and it is hereby received into the record.
2 All following dates will be in 1990 unless otherwise indicated.
Tecmec, Inc. d/b/a T.M.I. and Plumbers and Pipe-
fitters Local Union 189, United Association of
Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States
and Canada, AFL–CIO. Case 9–CA–27940
February 28, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On August 20, 1991, Administrative Law Judge
Richard H. Beddow Jr. issued the attached decision.
The Respondent filed exceptions and a supporting
brief, the General Counsel filed a brief in support of
the judge’s decision, and the Respondent filed a reply
brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopted the recommended Order as
modified.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
Tecmec, Inc. d/b/a T.M.I., Amlin, Ohio, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
Insert the following as paragraph 1(c).
‘‘(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.’’
Eric A. Taylor, Esq., for the General Counsel.
Ronald L. Mason, Esq., of Columbus, Ohio, for the Respond-
ent.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW, JR., Administrative Law Judge.
This matter was heard in Columbus, Ohio, on March 14 and
15, 1991. Subsequently briefs were filed by both parties.1
The proceeding is based on a charge filed October 18,
1990,2 by Plumbers and Pipefitters Local Union 189, United
Association of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States and Canada,
AFL–CIO (the Union).
The Regional Director’s complaint dated November 30,
1990, alleges that Respondent Tecmec, Inc. d/b/a T.M.I., of
Amlin, Ohio, violated Section 8(a)(1) and (3) of the Act by
discharging its employee Dustan Apel and by threatening to
discharge and permanently laying off its employee Jeffrey
Apel because of their activities on behalf of, and in support
of, the Union.
At the close of the Respondent’s case the General Counsel
requested a postponement so that he could have the oppor-
tunity to obtain testimony from a Larry Young, an employee
whose identity counsel learned of from the testimony pre-
sented during Respondent’s defense. The court ruled that the
General Counsel would be given the opportunity to inves-
tigate the matter further and that a motion to reopen the
record would be entertained if the investigation led to infor-
mation that would necessitate further testimony. No such re-
quest was made. Although the Respondent speculates on
brief as to why Young was not called, I find that no basis
exists for the drawing of any inference regarding why Young
was not called as a witness.
On review of the entire record and from my observation
of the witnesses and their demeanor, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a mechanical contractor engaged in the con-
struction industry. It annually purchases and receives goods
and materials valued in excess of $50,000 directly from
points outside Ohio and it admits that at all times material
it has been an employer engaged in operations affecting com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act. It also admits that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Respondent is a large, multistate mechanical contractor
with widespread operations in 10 or more States, including
Ohio and several nearby States. Its work force consists of
several hundred employees, including those generally skilled
in the plumbing and pipefitting trade, persons who would
normally be within the jurisdiction of the involved Union.
Respondent, however, is a nonunion contractor and in the
past several years has resisted an ongoing organizing attempt
500 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
by the Union. On occasion however, Respondent, or a sub-
sidiary, have signed several project agreements with the
Union at specific jobsites.
Respondent’s president and founder is Gail Thompson. At
various times Respondent has employed members of Thomp-
son’s family including his daughter Jennie and his brothers
Steve and Kelly.
The Union made contact with Thompson on several occa-
sions after the Company was founded and it attempted to or-
ganize Respondent’s employees in mid-April 1989, at a
Sears’ jobsite in the Columbus, Ohio area. Approximately 12
of Respondent’s employees walked off the job at the same
time and subsequently joined the Union. Joe Apel, who had
been employed by Respondent from May 1988 in the capac-
ity of foreman or superintendent, led the walkout after speak-
ing with other employees at the jobsite about leaving for the
Union and he passed out leaflets and union authorization
cards to them.
Joe Apel also spoke with the jobsite superintendent, Rex
Carter, and Foreman Ralph Shaw shortly after passing out
the leaflets and authorization cards. Both Carter and Shaw
told him that he and the other employees were making a mis-
take, that they had been misled by the Union, and they
would not be admitted as members.
Joe Apel’s brothers, Jeffrey and Dustan, also worked at the
Sears’ jobsite in April and they both signed authorization
cards but did not join the walkout.
In November 1989 Joe Apel and Assistant Union Business
Representative Bob Dyer were at Respondent’s Seymour, In-
diana jobsite in the Union’s continuing attempt to organize
Respondent’s employees. Apel answered questions from em-
ployees and spoke on behalf of the Union at a local Holiday
Inn before a group of Respondent’s employees, including
Kenny Walden, the superintendent of the Seymour project
who later left Respondent’s employ and began working for
a unionized contractor. The Union’s efforts resulted in six or
more employees leaving Respondent for membership in the
Union and employment with unionized contractors.
After the defection of the employees from the Sears’ job-
site in April 1989, Gail Thompson immediately held a meet-
ing with the remaining employees, and spoke against the
Union and about the benefits of continued employment with
Respondent and he told the employees that he believed the
Union was after him rather than being after his employees.
Thompson then called Jeff and Dustan Apel to the side to
speak privately with them and said he knew their brother Joe
had played a role in defection of the Sears’ project employ-
ees, that he did not want to hear any more talk about Union
and if he did, he would discharge them (Thompson denied
having this conversation and it is not the basis for any alle-
gation in the complaint).
Jeff testified that he had a subsequent conversation with
leadman Rick Williams, who subsequently became a super-
visor, in which Williams asked him to speak to his brother
Joe about what he could do for him. Williams denied having
any conversation with Jeff ‘‘about Unions’’ except for a dis-
cussion about trying to join the apprenticeship program but
admitted that he left the Respondent and went to a union job
shortly after Joe Apel’s walkout but was later hired back by
the Respondent.
Jeff had a similar conversation in late April or early May
1989, with James Carnes, Jr. who later became a foreman on
the Mead Shutdown. Carnes approached him during the
lunch break and asked if Joe Apel could assist his joining
the Union. Jeff relayed the message that Joe suggested that
Carnes contact the union hall directly. Also, in July 1990,
Bob Lovejoy, who was acting superintendent at the time, ex-
pressed interest in returning to the Union and asked Jeff
whether Joe Apel could be of any assistance.
Both Carnes and Lovejoy deny seeking Apel’s help; how-
ever, Lovejoy stated his union dues are currently paid up.
Jeff Apel also spoke about the Union’s apprenticeship pro-
gram with Steve Thompson, brother of Gail Thompson, who
had been superintendent prior to leaving Respondent’s em-
ploy, and Thompson, who had been through the program,
told him that it was a good career move.
In late September 1990, Jeff and Dustan Apel, along with
approximately 66 other employees, were at a job at the Mead
Paper Plant in Chillicothe, Ohio. The plant was shut down
at the time and the job was referred to as the ‘‘Mead shut-
down’’ job. Kelly Thompson, Gail Thompson’s brother, was
the project superintendent and Lovejoy was a foreman.
Jeff Apel testified that he had a conversation with Kelly
Thompson and Lovejoy at the end of September. As Jeff was
walking out the gate Thompson and Lovejoy pulled beside
him in a truck and asked if he wanted to join them for lunch.
Jeff declined but told Kelly Thompson that his brother Joe
had a message for Thompson ‘‘that the Union was going to
send organizers to the jobsite to talk to Respondent’s em-
ployees again and that the Union was aware that Respondent
had a job in Toledo and it intended to do something about
it.’’ Thompson asked Jeff how he knew about the job in To-
ledo and Jeff replied that his brother told him about it.
Thompson told Jeff that he did not ‘‘want to hear any of this
shit.’’
Jeff testified that later that same date Lovejoy approached
him and told him not to talk about the Union in front of
Thompson again because Thompson had become ‘‘real
pissed off’’ as a result of the earlier conversation and that
Jeff could lose his job if he said anything more to Thomp-
son.
Both Kelly Thompson and Lovejoy deny that these con-
versations took place and Gail Thompson denies that his
brother told him about it.
Foreman Ralph Shaw recalls that as the job was winding
down and only a few persons were left, Jeff asked to leave
at midday and, as he was going to be laid off that evening
anyway, Shaw told him to see Jeannie Freeman (at Respond-
ent’s office), about being sent somewhere else. Apel recalls
that Foreman Williams told him it was his last day and to
call the shop. Company records show that he left on October
2, for ROF (reduction of force). Apel called the office five
or six times over the next month and spoke with Jeannie who
kept telling him they would get back with him. He also re-
called that Shaw had previously said they would go back to
the jobs they had come from. (He had been at the ‘‘other’’
Mead project, which continued after September 31.)
On other occasions when he had been laid off he had been
given a layoff slip but after the Mead job shutdown he re-
ceived nothing nor was he ever given any explanation. He
thereafter applied for unemployment benefits that were
uncontested by the Respondent.
Dustan Apel’s last day on the Mead shutdown job was
September 30 and he was told by Shaw to return to his last
501T.M.I.
job. Company records show he left for ‘‘transfer to Litel.’’
After having phoned in sick with the flu, Dustan testified
that he returned to the Litel job on October 4 and worked
the entire day without incident. The following morning Su-
perintendent Rick Link asked Dustan ‘‘what have you
done,’’ and said he had been told by Jeff Jarvis that Gail
Thompson personally told him to fire you and your brother.
Link then added something about Jeff talking about the
Union. Link recalled that when Dustan came to the job he
put him to work then called the office and was told to go
back out and lay him off. He asked Dustan what had hap-
pened at its Mead job and said that he was told to lay him
off by the Columbus office. Shaw said Dustan replied with
a comment about his brother and Gail Thompson’s daughter.
A few weeks later Link was short-handed on the job. He
asked Vice President of Operations Doug Stevenson if he
could get Dustan back and was told no (Link also said it was
Stevenson, not Jarvis, who had told him to lay Dustan off),
that the Apels were suspected of stealing tools. Link then
said Dustan had inquired about returning and asked what rea-
son should be given for the layoff. Stevenson told him to say
it was for excessive absenteeism, and then asked if, in fact,
he had missed a lot of work. Link said yes, and it was
agreed that that would be the reason given if Dustan asked
again.
Stevenson testified that he called Link about Dustan before
the Mead shutdown job and told Link to lay him off. He said
that Jeff Jarvis had told him they thought he was stealing
tools from the Mead job but that he didn’t mention that to
Link. He agreed that a few weeks later he told Link about
the stealing suspicion and told Link to give excessive absen-
teeism as an excuse if Apel asked.
Dustan also was not given a written layoff notice as he
had on previous occasions. He did not check back with Link
again after Link had spoken with Stevenson. He received no
additional reason for the layoff, specifically the absenteeism
reason discussed by Respondent’s supervisors, and his unem-
ployment compensation claim was not contested.
In the first half of December 1990, the Apels first learned
that Respondent intended to justify their discharge by assert-
ing that they had engaged in theft.
Jeff Apel and Donetta Sowards (who thereafter became en-
gaged to Jeff), had a conversation at a chance meeting with
Respondent’s foreman Carnes and his wife at a Ramada Inn
in Portsmouth, Ohio. Carnes and Jeff Apel spoke for 5 to 15
minutes and Sowards was present for part of the conversa-
tion. Carnes told Jeff that Gail Thompson was accusing Jeff
and Dustan of theft. Carnes then said that he and others
knew this was not true and that they all knew it was ‘‘over
the Union situation in Toledo.’’ He also told Jeff that ‘‘Gail
was really upset over that and Kelly was pissed off.’’ Jeff
testified that Carnes stated that Thompson had even offered
someone money to crack his head. Carnes then said he was
sorry about this layoff and had talked about it with Vice
President Jarvis and they wanted to get them back to work
through the Cincinnati rather than the Columbia office.
Sowards independently confirmed and amplified her own
recollection of the conversation.
Carnes testified that he was foreman at the Mead shut-
down and was never aware of any problem there with tools
being stolen. He agreed that he had a chance meeting with
Sowards and Jeff Apel at a Ramada Inn but believed it was
in October after he had been transferred to an Indiana job
as a foreman. He stated that their conversation lasted for
about 5 minutes and that they merely made mutual introducts
between his wife and Apel’s girlfriend and went on to his
table.
In answer to a series of three direct leading questions by
Respondent counsel, Carnes denied that any of the conversa-
tion related to or mentioned on-the-job theft by Apel, the
Union, or any statements that Gail Thompson may have said.
On cross-examination by the General Counsel he then admit-
ted that during the conversation he did tell Apel that he
would try and help him get back to work at the Company
and that he occasionally has conversations with Jarvis whom
he considers to be a friend. Jarvis, who apparently still is Re-
spondent’s vice president, was not called as a witness.
Jeff Apel first started with Respondent as a laborer. He
then became a helper/fitter and received several wage in-
creases. He was rated good (the highest rating versus fair and
poor) in company evaluations. His evaluation, dated April
19, 1990, noted that he was quiet, his work was neat, he
caused no problems or distractions, and his work with a
torch was better than most helpers and some fitters.
When he was rehired after a layoff, Jeff filled out an em-
ployment application dated October 6, 1989. The application
was brief and there was no inquiry regarding possible felony
or misdemeanor convictions. The Respondent elicited infor-
mation that Jeff Apel was convicted of sexual battery and
was in jail between 1984 and 1989, prior to his employment
with Respondent. While in prison he was indicted and sen-
tenced to a consecutive term for aggravated riot that he un-
derstood ‘‘was run with his other sentence, just added to it.’’
After being hired, he never received any subsequent inquiry
about this subject. In September he became aware of a rumor
that someone was saying he had gone out with Jennie
Thompson, owner Thompson’s daughter who, as noted,
worked at the same Mead shutdown jobsite. He spoke with
Supervisor Lovejoy, denied that the rumors were true, and
expressed his concern that he could lose his job if the rumors
got back to Thompson.
Dustan Apel was a second-year helper with evaluations
that reflect the Company rated his performance as good and
‘‘encouraging,’’ and in 1989, he received two raises less than
a month apart.
As noted, Dustan Apel was transferred to work the Mead
shutdown from Respondent’s job at Litel. Jeff Apel was
transferred from Respondent’s job at Mead Opus. A total of
66 men were assigned to work the Mead shutdown job,
(which lasted about 2 weeks), 3 of whom were new hires
who were released ‘‘rof’’ (reduction of force), after a few
days (1 worked only 1 or 2 days). Respondent’s records
show as ‘‘reason for leaving’’: that 3 persons quit, 15, in-
cluding the 3 new hires and Jeff Apel were ‘‘rof,’’ and 48,
including Dustan Apel (on 9/30/90) were listed as transfers
to other jobs (1 to vacation). Of these 48, 12 were transferred
back to the same Mead job that Jeff Apel had come from.
Shaw, the superintendent on the Mead shutdown, testified
that he asked Jennie Thompson about the rumor connecting
her and Jeff Apel and that she denied it. Gail Thompson tes-
tified that Jennie then told him of the rumor. He said he ad-
mittedly was ‘‘upset’’ about it but that he took no action
against Jeff Apel because of it.
502 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Kelly Thompson testified that he had already transferred
from the Mead shutdown job when he was faxed a list of
missing tools. He talked to his brother, Gail, and was in-
structed to investigate. He then told Superintendent Shaw to
find out what he could about the missing tools which in-
cluded a generator and other smaller items.
Shaw’s investigation consisted of talking to a number of
employees about the missing tools and, contrary to Kelly
Thompson’s testimony, Shaw recalls being asked to inves-
tigate by Gail Thompson. He stated that a lot of the tools
were in storage trailers and ‘‘gang boxes’’ and that the Apels
have access to the tools and, as helpers, often had the job
of getting and moving tools to a work location. The Apels,
however, pointed out that the Mead shutdown jobsite covered
a very large area with 10 buildings with employees from
other contractors as well as a night shift, which resulted in
the trailers and boxes being unlocked after their own shifts.
Jeff testified that he spent most all of his time running a jack
hammer and he only occasionally got tools from one trailer
outside his building (no sign-in sheet or other custody record
was kept of the tools). On one occasion he helped move a
large welder to another part of the jobsite and he was aware
of 10 other helpers on the jobsite. One day he also was sent
by Lovejoy with some other ‘‘guy’’ to look for a welder and
a generator that were said to be missing. Otherwise, he was
never asked about missing tools or any involvement with
their disappearance.
Dustan Apel spent most of his time at the shutdown as a
helper for foreman Carnes’ small crew. He never worked
with his brother and he only occasionally got small tools
from nearby, open gang boxes. He said he heard a rumor
about some missing welding lead but otherwise never was
asked about missing equipment. Neither Jeff nor Dustan
worked with employee Larry Young or knew what his job
was at the jobsite.
Shaw testified that other employees told him they thought
Young and Jeff Apel and possibly his brother ‘‘might be
stealing,’’ Young had already gone to another jobsite. Gail
Thomspon learned that the word on Young was that he had
taken a generator. When looking into this it found that there
might actually be two generators missing. However, there
was a discrepancy in the paperwork and it was possible that
only one generator was missing.
Thompson then had his staff run a past history of employ-
ment on the Apel Brothers and Larry Young to determine
whether there were any missing tools on other jobs where
they worked, and it was reported that on every job where
Jeff and Dustan Apel worked, (otherwise undescribed), there
had been tools stolen off the jobs.
Thompson testified that he then decided to layoff both
Apels and placed notes in both Apel’s files that they were
laid off and added ‘‘not eligible for rehire.’’ Respondent’s
termination form asks ‘‘for what reason’’ under the ‘‘laid
off’’ category that was checked, however no reasons were
given, only the notation ‘‘not eligible for rehire.’’ Thompson
said he decided to wait before he took action against Young
because of the paperwork confusion about missing genera-
tors.
On October 11 Thompson called the jobsite and talked to
both Shaw and Young and told Young that he was suspected
of stealing a generator and other tools. Thompson then told
Young that if the generator ‘‘appeared’’ that he would let it
pass. Young denied taking a generator and Thompson told
him that he was indefinitely suspended pending further in-
vestigation. Respondent asserts that Young was never re-
called from his suspension and thereafter was terminated, not
eligible for rehire. It admits, however, that no paperwork or
termination slip was actually filled out on Young or placed
in his file.
Respondent introduced a one-page undated, unsigned, por-
tion of a police report of items, including a generator, assert-
edly stolen from the Litel jobsite, however, it doesn’t identify
the company or the jobsite. This is the only documentation
to show that the Company ever gave serious concern to pur-
ported thefts on any of its jobsites and no police reports were
made involving the purported thefts by the Apels and Young
at the Mead shutdown. No attempt was made to report the
alleged suspicions to the police and no other investigation
was made. The Apel brothers were laid off, not eligible for
rehire, despite the fact that Respondent’s employee handbook
specifically provided that any theft, of any kind, ‘‘will result
in immediate termination and prosecution.’’
III. DISCUSSION
The primary event which caused this proceeding was the
sudden termination of two brothers whose older brother was
a union activist, an activist who previously had led a walkout
from one of Respondent’s jobsites and who was involved
with threatened organizational activity at other jobsites. The
terminations were not made overtly but took the form of a
verbal layoff with an uncommunicated notation on the com-
pany payroll termination slip that they were ‘‘not eligible for
rehire.’’ The Company never gave them the normal layoff
slips and it never informed them that they had been dis-
charged for suspicion of theft, Respondent’s relied on jus-
tification for their termination. Respondent’s defense other-
wise rests on a strong attack on the credibility of former em-
ployees Jeff and Dustan Apel and Donetta Sowards, Jeff’s
fiancee.
A. Motivation and Credibility
In a discharge case of this nature, applicable law requires
that the General Counsel meet an initial burden of presenting
sufficient evidence to support an inference that the employ-
ees’ union or other protected concerted activities were a mo-
tivating factor in the employer’s decision to terminate them.
Here, the record shows that Respondent’s management was
well aware of union activity at one of its jobsites in April
1988 and that this activity was led by Joe Apel, the older
brother of alleged discriminatees Jeff and Dustan Apel. This
activity resulted in a walkout by a number of employees, in-
cluding Joe Apel but not his brothers. Shortly thereafter Re-
spondent’s president Gail Thompson made a strong antiunion
speech to all his employees at the jobsite. It is uncontested
that many of Respondent’s supervisors were aware of Joe’s
involvement with the Union and that Jeff and Dustan were
his brothers. Gail Thompson was well aware of Joe Apel and
he certainly was made particularly aware of Jeff Apel prior
to the terminations when he was informed of the jobsite
rumor about Jeff going out with his daughter. He was spe-
cifically aware of both Jeff and Dustan, and their unique last
name, when their names were reported to him in connection
503T.M.I.
with the asserted stolen property investigation. Under these
circumstances, I infer that Respondent connected Jeff and
Dustan with the union activities of his brother (independent
of any alleged union activity threats made directly to them).
This, as well as the showing discussed below that Re-
spondent’s reasons for their terminations were pretextual, is
sufficient to demonstrate unlawful motivation, see Dorothy
Shamrock Coal Co., 279 NLRB 1298 (1986).
Under these circumstances, I find that General Counsel has
met his initial burden by presenting a prima facie showing,
sufficient to support an inference that Joe Apel’s union ac-
tivities in April 1989, were a motivating factor in Respond-
ent’s decision to pretextually terminate his brothers on Octo-
ber 2 and 4, 1990.
The Respondent accurately contends that the Company is
not shown to be ‘‘a rabid anti union company’’ and in fact,
there appears to have been an occasional exchange of em-
ployees (including leadmen, foremen, and supervisors) back
and forth from union to nonunion jobs. This, however, does
not change the fact that the Company has remained ada-
mantly nonunion over a number of years and it does not pre-
clude the possibility that its supervisors and witnesses would
couch their testimony in terms of denials of past statements
or events that would tend to reflect adversely on Respond-
ent’s current rationalization for the discharges of the Apel
brothers.
Respondent extolls the sincerity of its company witnesses
and strongly attacks the logic of Dustan Apel’s testimony. It
primarily argues that Jeff Apel cannot be credited because he
is a convicted felon who spent 4 years in prison for sexual
battery, because he repeatedly lied on the stand, and because
he coaxed his fiancee to lie for him in her testimony. It con-
tends that the brothers got together and ‘‘fabricated’’ con-
versations between themselves and supervisors to create ar-
guable credibility claims and it suggests that any assumption
of lack of sophistication to create such a fabrication cannot
stand because they went to the Union after their layoff and
the Union drafted and filed the charges. Finally, Respondent
maintains that it is being required to spend thousands of dol-
lars to defend against ‘‘frivolous,’’ one-on-one credibility
claims because the General Counsel continues to follow the
March 5, 1976 memo of then General Counsel John S. Ir-
ving, Esquire. This memo addresses the subject of ‘‘resolv-
ing’’ credibility conflicts in the investigating process only
when documentary or other objective evidence is the basis
for doing so and the memo states that the issue of credibility
is best resolved through a formal hearing where the testi-
mony of witnesses is subject to cross-examination.
Contrary to Respondent’s contentions, I am not persuaded
that the testimony of the Apel Brothers and Donnetta
Sowards lack credibility. Moreover, I find that they are, in
fact, unsophisticated witnesses who answered with apparent
truthfulness despite the alleged contradictions suggested by
Respondent.
For example, Respondent asserts that Dustan’s testimony
is not credible because when asked if he had any conversa-
tion with other employees about Gail Thompson’s daughter
and his brother he answered ‘‘No. It was none of my busi-
ness,’’ and when asked if he had knowledge that such rumor
was ‘‘circulating’’ he answered, ‘‘No.’’ While it is clear that
the rumor was widespread, Dustan’s answer doesn’t state that
he hadn’t heard the rumor, as Respondent asserts, but only
that he did not have knowledge that is was circulating around
the jobsite.
The two brothers live at different locations and worked at
different jobsites prior to the Mead shutdown job, and I find
that Dustan displayed a personal independence from his
brother. Dustan also testified, in response to Respondent’s
questions, about what occurred when he was interviewed by
a union representative prior to the charge being filed and I
find nothing in his testimony that would suggest any impro-
prieties that might tend to indicate that any story was fab-
ricated about the circumstance that led to his discharge.
To the contrary, I do find that the circumstance of
Dustan’s termination and Respondent’s explanation thereof
are so pretextual, independent of any background testimony
by Dustan, that they place into question the overall credi-
bility of Respondent’s witnesses where they almost com-
pletely and uniformly deny the existences or contents of in-
herently probable conversations of both the brothers.
As further discussed below, the so-called company inves-
tigation of stolen property, the foundation of Respondent’s
justification, is of no persuasive evidentiary value. Most spe-
cifically, the only apparent tie to Dustan Apel is that some-
one told Supervisor Shaw that possibly ‘‘Jeff’s brother’’
might also be linked to the occurrences. On this single thread
of speculation (independent of any antiunion motivation con-
nected with brother Joe Apel), and without further ques-
tioning or investigation (other than running a list of jobsites
worked and other tool losses), Respondent and its witnesses
insist that the Company has a credible reason for terminating
Dustan, in spite of the fact that it admittedly failed to tell
him this asserted reason for his layoff, failed to give him a
layoff slip as it had done in the past, failed to tell them that
his layoff records were marked ‘‘not for rehire’’ and agreed
among top managers to lie to him if he asked again about
reemployment with a false reason about absenteeism. This is
not a background that connotes trustworthiness in Respond-
ents’ witness testimony.
Jeff Apel’s testimony is said to be unbelievable because he
served time for a felony conviction. As noted in the General
Counsel argument, the type of crime involved is unrelated to
truthfulness and otherwise, the witness readily admitted his
conviction as well as the indictment that occurred while in
prison and his understanding of what occurred.
Prior to Jeff’s discharge, in both May 1989 and April
1990, Respondent’s employees review form rated him as
good (the highest rating) in subject including: attendance and
punctuality, attitude, performs present responsibilities, ac-
cepts new responsibilities, problem solving, and solutions,
works well with others and works well without supervision.
Specific comments were added in April 1990, which said:
‘‘He is quiet and causes no problems or distractions.’’ It
therefore appears that Jeff Apel became untrustworthy in Re-
spondent’s eyes only after the events of September 1990, and
the alleged untrustworthiness of Sowards is based on her as-
sociation with Apel.
In addition to these circumstances, I also have considered
that much of the company witnesses’ critical testimony was
generated in the form of a direct leading question by Re-
spondent’s counsel in which the witness merely denied the
statement in the question, a statement which generally related
to something mentioned by the General Counsel’s witnesses
in their testimony. This type of questioning does little to en-
504 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
hance any inherent reliability in the answer which follows
and I find that the testimony of the company supervisors that
conflicts with that of the other witnesses discussed below is
not persuasive or credible.
Otherwise, the following recitation of affirmative statement
of facts are my factual conclusions based on the demeanor
of the various witnesses and my evaluation of the most plau-
sible and credible testimony. In instances where testimony is
not set forth in detail herein, I have reviewed such testimony
but found it to be nondeterminative of the conclusions
reached.
I also find the implicit attack on the General Counsel for
pursuing a case purported to be based on frivolous credibility
claims is unfounded.
C. The Alleged Threat
I credit Jeff Apel’s testimony that he would occasionally
have conversations with supervisors and others where they
made general inquiries related to his brother Joe’s member-
ship in the Union, and the Union’s apprenticeship program.
The record also shows that Joe Apel and the Union had en-
gaged in ongoing, occasional efforts to solicit union member-
ship at some of Respondent’s jobsites and that Respondent
had a jobsite in Toledo.
Something happened at the Mead shutdown jobsite in Sep-
tember 1990 that triggered the discharge of the Apel Broth-
ers. For the reasons shown below, I find that Respondent’s
reasons and explanations for what happened are pretextual
and, under these circumstances, I find that Apel’s recollec-
tion of a brief encounter with Kelly Thompson and Bob
Lovejoy, where Kelly reacted angrily to Apel’s casual deliv-
ery of a verbal message about further union activity, is inher-
ently plausible and consistent with events that occurred both
before and after that occasion. I therefore credit Apel’s testi-
mony over the denials by Thompson and Lovejoy. I also find
that Lovejoy, who then held a supervisory position (but also
maintained his union membership and was paid up in his
dues while he worked for Respondent), gave Jeff a ‘‘friend-
ly’’ warning that Thompson had really become upset and that
he could lose his job if he spoke about the Union again in
front of Thompson. The clear implication of such a remark,
made by a supervisor, about the reaction of a higher level
supervisor, constitutes a coercive threat that interferes with
employee Section 7 rights even if it is given in a ‘‘friendly’’
manner, and I conclude that the General Counsel has shown
that this action occurred and that it constitutes a violation of
Section 8(a)(1) of the Act, as alleged.
D. Respondent’s ‘‘Wright Line’’ defense
As noted, Respondent contends that the Apel Brothers
were discharged because they were suspected of stealing
tools from the jobsite. While it appears that some apparent
theft occurred, Respondent’s management was so inad-
equately organized that it didn’t know if one or two (rental)
generators were missing and had no regular system to record
or monitor the storage or custody of tools and equipment. A
generator would appear to be a major item and employee
Young was identified with that alleged theft. He was trans-
ferred to another job but only later accused, after the Apel
brothers already had been terminated for suspicion of the
theft of smaller, miscellaneous items. Thompson also gave
Young the chance of returning the generator, no questions
asked. Young denied the theft but then was suspended, and
left and didn’t return. The Apels, however, were given no
such opportunity, and, in fact, were not even advised of the
suspicion against them even though their alleged offense ap-
pears to be less serious. Moreover, there is little to show that
Respondent had any probable cause to suspect the Apels, es-
pecially Dustan, who appears to have been a suspect only be-
cause of his relationship to brothers Jeff and Joe.
Supervisor Shaw was asked to investigate by Gail Thomp-
son and did so by asking other employees about the missing
tools. There is no indication that he used objective, non-
leading or nonsuggestive questions that might generate inde-
pendent answers. Significantly, a list of employees at the job-
site, Joint Exhibit 3, notes some persons who were new hires
to the Company as well as several employees that were on
the jobsite for only 1 to 3 days before being laid off, cir-
cumstances that would appear to provide opportunity and
motivation for petty thievery, yet no apparent suspicion was
attached to these persons, only to Young and the Apels.
After this asserted naming of Jeff as a possible source of the
thefts, no further investigation was made except to specifi-
cally seek to tie the Apels (and Young) into circumstantial
attendance at other jobsites where petty thefts had occurred.
No other corroborative or persuasive evidence was generated
and no meaningful attempt was made to report these alleg-
edly significant thefts to the police. (In this connection, I find
that R. Exh. 17, which purports to be part of a police report,
apparently from another jobsite, lacks any meaningful identi-
fying information and is of no evidentiary value.) Finally, the
Apels were given no opportunity to be faced with the
charges against them, as Young was and nothing was said
to them or placed in their records (in a manner consistent
with Respondent’s employee handbook provisions), that
would confirm that this was the real reason for their dis-
charges. As noted by the General Counsel, this reason would
have secured the Respondent from unemployment compensa-
tion claims, yet Respondent failed to oppose such claims by
either brother.
The Apels did not learn of the alleged reason for their dis-
charges until Jeff’s conversation with Foreman Carnes sev-
eral weeks after the close of the Mead shutdown job and I
credit Apel’s and Sowards’ testimony in this respect over the
denials by Carnes which were generated by Respondent’s
counsel’s leading questions (especially since Carnes reluc-
tantly admitted on cross-examination by the General Counsel
that he in fact had said something more than introduce his
wife and had offered helpful comments about trying to help
get Apel back to work at the Company, comments that are
consistent with the contents of Apel’s and Soward’s testi-
mony).
Gail Thompson admits that he was ‘‘upset’’ over the
spreading of a rumor that his daughter had gone out with Jeff
Apel, a rumor she denied. It is therefore quite plausible that
he was at least equally as upset by the probable receipt of
information from his brother Kelly that this same Jeff Apel
had said that his brother Joe, a known union organizer, was
going to be engaging in some further actions involving Re-
spondent’s jobs and I credit Apel’s testimony that he had a
conversation along these lines with Kelly Thompson.
Additional factors which tend to support the pretextual na-
ture of Respondent’s justification include the irregular com-
505T.M.I.
3 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6621. Interest accrued before 1 January
1987 (the effective date of the amendment) shall be computed as in
Florida Steel Corp., 231 NLRB 651 (1977).
4 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.
5 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.’’
pany documentation of the layoffs and terminations and the
timing of its theft investigation, and immediate termination
decision, all apparently within the week following Jeff
Apel’s statement to Kelly Thompson about his brother and
the Union.
Jeff was one of the first employees on the Mead shutdown
job, arriving September 18. Respondent’s jobsite records (Jt.
Exh. 3) show October 2 (a Tuesday) as the day he left. The
company ‘‘Payroll termination slip’’ shows October 4 as the
date of termination and is dated the same day. Jeff testified
that his conversation with Kelly Thompson took place in late
September and that he was laid off October 1 or 2. He then
said he was laid off in the ‘‘same week’’ as the conversation.
Rather than demonstrating an inconsistency, I believe he was
indicating a 7-day timeframe. Moreover, neither Jeff or
Dustan received Respondent’s layoff slips and,
unexplainably, Dustan’s payroll termination slip showed a
termination date of October 4 but a document date of Octo-
ber 23.
Under all these circumstances, I am not persuaded that Re-
spondent actually fired the Apels for suspicion of theft. I find
that the Respondent’s stated reasons are pretextual and ac-
cordingly, I conclude that the Respondent has failed to show
that either Jeff or Dustan Apel would have been discharged
absent Respondent’s animus, Jeff’s message about the Union,
and their relationship to a known union activist. The General
Counsel otherwise has met its overall burden of proof and
I further conclude that Respondent’s discharge of these two
employees is shown to have been in violation of Section
8(a)(1) and (3) of the Act, as alleged.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By telling an employee that he could lose his job if he
again spoke about the Union in front of company super-
visors, Respondent interfered with, restrained, and coerced its
employees in the exercise of their rights guaranteed in Sec-
tion 7 of of the Act and thereby has engaged in unfair labor
practices in violation of Section 8(a)(1) of the Act.
4. By discharging employees Jeff Apel on October 2,
1990, and Dustan Apel on October 4, 1990, respectively, Re-
spondent engaged in unfair labor practices in violation of
Section 8(a)(1) and (3) of the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices, it is recommended that the Respondent be ordered
to cease and desist therefrom and to take the affirmative ac-
tion described below which is designed to effectuate the poli-
cies of the Act.
With respect to the necessary affirmative action, it is rec-
ommended that Respondent be ordered to reinstate each of
the discriminatees to their former job or a substantially
equivalent position, without prejudice to their seniority or
other rights and privileges previously enjoyed, and make
them whole for any loss of earnings they may have suffered
because of the discrimination practices against them by pay-
ment to the sum of money equal to that which they normally
would have earned from the date of the discrimination to the
date of reinstatement, in accordance with the method set
forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1989),3 and that Respondent expunge from its
files any reference to the discharge, and notify them in writ-
ing that this has been done and that evidence of this unlawful
discipline will not be used as a basis for future personnel ac-
tion against them.
Otherwise, it is not considered to be necessary that a broad
order be issued.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Respondent, Tecmec, Inc. d/b/a T.M.I., Amlin, Ohio,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Telling an employee he may lose his job if he talks
about the Unions.
(b) Discharging any employees because of activity pro-
tected by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Jeff Apel and Dustan Apel immediate and full
reinstatement and make them whole for the losses they in-
curred as a result of the discrimination against them in the
manner specified in the remedy section above.
(b) Expunge from its files any reference to these dis-
charges and notify them in writing that this has been done
and that evidence of the unlawful discharge will not be used
as a basis for future personnel actions against them.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its Amlin, Ohio facility and all its jobsites in
Ohio, copies of the attached notice marked ‘‘Appendix.’’5
Copies of the notice, on forms provided by the Regional Di-
rector for Region 9, after being signed by the Respondent’s
authorized representative, shall be posted by Respondent im-
mediately upon receipt 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, defaced, or covered by any other material.
506 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discharge any employee for engaging in ac-
tivities protected by Section 7 of the Act.
WE WILL NOT tell employees they may lose their jobs if
they talk about unions.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer Jeff Apel and Dustan Apel immediate and
full reinstatement and make them whole for the losses they
incurred as a result of the discrimination against them.
WE WILL expunge from our files any reference to these
discharges and notify them in writing that this has been done
and that evidence of the unlawful discharges will not be used
as a basis for future personnel actions against them.
TECMEC, INC. D/B/A T.M.I.