Williams Contracting

National Labor Relations Board - Board Decisions

Nov 9, 1992

309 N.L.R.B. 433 (N.L.R.B. 1992)

433
309 NLRB No. 68
WILLIAMS CONTRACTING
1 We reject the Respondent’s contention that the judge’s findings
reflect bias because he discredited the testimony of all the Respond-
ent’s witnesses. It is well established that the total rejection of one
view, including significant credibility resolutions, ‘‘does not alone
impugn the trier of fact.’’ Kendick Engineering, 244 NLRB 989 fn.
2 (1979). The Respondent has essentially excepted to certain credi-
bility findings made by the judge. It is the Board’s established policy
not to overrule an administrative law judge’s credibility resolutions
unless the clear preponderance of all the relevant evidence convinces
us that they are incorrect. 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.
The judge found that, on two occasions, David Phillips lied about
his actual rate of pay to state or Federal agents at the request of the
Williamses. In fact, Phillips testified that he was specifically re-
quested by the Williamses to lie about his wages only at the
Cannelton project. It is unclear whether Phillips was specifically re-
quested to lie to the Government agent at the jobsite involved in this
case but, clearly, he was not encouraged to be truthful either.
2 Although the judge found that it was unnecessary to resort to
Wright Line, 251 NLRB 1083 (1980), we find that his analysis was
consistent with that decision. The General Counsel met its initial
burden of establishing that David and Kippy Phillips’ protected con-
duct—mutually complaining about not receiving their proper wages
and threatening to report the Respondent to the authorities if such
payment was not made—was a motivating factor in the Respond-
ent’s decision to permanently lay them off. The burden then shifted
to the Respondent to show that the same action would have taken
place notwithstanding the protected conduct. The judge found, and
we agree, that the Respondent failed to meet its burden because each
of the reasons proffered were pretextual. Thus, the Board is entitled
to infer that the Respondent’s true motive was unlawful—i.e., be-
cause of the Phillipses’ protected activity. Shattuck Denn Mining
Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966).
Finally, we find that our decision is consistent with the Second
Circuit’s recent refinement of its opinion in Holo-Krome Co. v.
NLRB, 947 F.2d 588 (1991). On the Board’s petition for rehearing
in Holo-Krome, the court held, inter alia, that ‘‘[w]hen the Board re-
views an ALJ’s decision, and when a court of appeals reviews a
Board’s decision, the reviewing bodies should be able to examine
the entire record to determine if improper motivation has been
shown . . . .’’ 954 F.2d 108, 114 (2d Cir. 1992).
Williams Contracting, Inc. and Kippy Phillips and
David Phillips. Cases 25–CA–21415–1 and 25–
CA–21415–2
November 9, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On May 20, 1992, Administrative Law Judge Thom-
as R. Wilks issued the attached decision. The Respond-
ent filed exceptions and a supporting brief, and the
General Counsel filed an answering 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-
clusions2 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, Williams Contracting, Inc.,
Orleans, Indiana, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
Walter Steele, Esq., for the General Counsel.
Rayford T. Blankenship, Esq. and John Rybolt, Esq.
(Blankenship & Associates), of Greenwood, Indiana, for
the Respondent.
DECISION
STATEMENT OF THE CASE
THOMAS R. WILKS, Administrative Law Judge. It was
charged on July 22, 1991, in Case 25–CA–21415–1 by
Kippy Phillips, an individual, and in Case 25–CA–21415–2
by David Phillips, an individual, that Williams Contracting,
Inc. (the Respondent), has engaged in unfair labor practices
affecting commerce, as set forth and defined in the National
Labor Relations Act. On September 27, 1991, the Regional
Director issued a consolidated complaint wherein it is alleged
that Respondent violated Section 8(a)(1) of the Act on about
June 21, 1991, by discharging and/or laying off the Charging
Parties, David Phillips and Kippy Phillips, because they en-
gaged in concerted complaints to the Respondent and con-
certed activities with each other for the purposes of securing
the prevailing wage rate at the East Washington Water Cor-
poration jobsite in Salem, Indiana. The complaint also al-
leges that Respondent also violated the Act by on or about
June 24, 1991, telling an employee that it engaged in the
aforedescribed conduct.
Respondent filed a timely answer which denied any viola-
tive conduct. At the trial of this matter in Bedford, Indiana,
on January 28, 29, and 30, 1992, all parties were afforded
reasonable opportunity to adduce relevant evidence. The par-
ties declined an opportunity to argue orally and chose to file
briefs which, because of extensions of time granted, were not
received at my office until April 21, 1992.
Upon the entire record, including the briefs, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is, and has been at all times material, a
corporation duly organized under and existing by virtue of
the laws of the State of Indiana. The Respondent has main-
tained its principal office and place of business in Orleans,
Indiana (the facility), and is, and has been at all times mate-
rial, engaged at said facility and at various Indiana jobsites
in the business of underground and underwater utility con-
struction and ditch work in the building and construction in-
dustry. During the 12 months prior to the filing of the unfair
labor practice charge, a representative period, the Respond-
ent, in the course and conduct of its business operations de-
scribed above in subparagraph 2(b), provided services valued
in excess of $50,000 for construction employers, each of
which employers during the same representative period either
(1) purchased and caused to be shipped to their respective In-
434 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
diana locations or jobsites, directly from points located out-
side the State of Indiana, goods and materials valued in ex-
cess of $50,000, or (2) performed services valued in excess
of $50,000 in States other than their State of incorporation
or location of their principal offices or jobsites.
I find that the Respondent is now, and has been at all
times material, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background
Respondent is a small family owned and operated under-
ground utility construction enterprise. Among its customers
are various local governmental units for which water dis-
tribution pipe systems are constructed by means of ditch
trenching, below grade pipe installation, and back-filling. Re-
spondent’s chief executive officer and president is Tom Wil-
liams. His wife, Sue Williams, is the corporate secretary.
Their son, Allan Williams, holds the position of vice presi-
dent. Tom and Allan Williams generally supervise the field
operations of its work force of from 5 to 12 employees, con-
sisting of trenching machine operators, backhoe and bull-
dozer operators, laborers, and mechanics. At the times mate-
rial, Respondent’s operations covered rural areas of Southern
Indiana.
Respondent’s office is located in the basement of Tom and
Sue Williams’ residence where a female secretary assists
with the clerical duties, including the payroll preparation of
which Sue Williams testified that she was ‘‘somewhat’’ in
charge. Tom and Allan Williams generally spend their time
in the field supervising several jobsites. Allan Williams fre-
quently operates machinery, as apparently does his father on
some occasions.
Kippy Phillips first worked for Respondent in 1973 and
for various periods of time until 1989, after which date he
was either recalled after the completion of the job or after
the winter shutdown or rehired upon his request on a regular
basis up to the summer of 1991. He operated a backhoe and
bulldozer, i.e., he filled and leveled the ditch after installation
of plastic ‘‘PVC’’ pipe by laborers. Kippy’s nephew, David
Phillips, commenced work for Respondent in 1984 as a la-
borer and worked regularly thereafter except for seasonal lay-
offs, after which, according to uncontradicted testimony, he
was regularly recalled by Respondent. David Phillips pro-
gressed from laborer to machine operator. At times material
herein, he operated the trencher, which, as its name suggests,
digs an open trench into which the pipe is immediately laid
and connected by laborers. David Phillips was apparently
deemed by Respondent to be a sufficiently responsible work-
er, that he had been frequently designated as the crew chief
who gave routine instructions to laborers and others in the
absence of either Williamses. There is no allegation nor suf-
ficient evidence that his discretion was such as to constitute
supervisory status under the Act.
Respondent has had occasions in the past to perform work
under conditions whereby it was obliged to pay its employ-
ees the prevailing wage rates as determined by the appro-
priate government agencies in pursuance of the enforcement
of the Fair Labor Standards Act or Davis-Bacon Act. On
those occasions, the appropriate state and/or Federal agents
conducted routine on-site interviews of employees to deter-
mine if their actual rate of pay coincided with the payrolls
reported to those agencies. David Phillips testified that on
two prior occasions at different jobsites, at the request of the
Williamses, he misrepresented his actual lower pay rate to
the agent to be that represented by the Respondent, i.e., the
higher prevailing wage rate. He was not contradicted by ei-
ther Tom or Allan Williams, and I therefore credit him.
B. The Salem Jobsite
In 1991, both Phillipses were recalled to work by Re-
spondent—Kippy to a jobsite in Paoli in January and David
in February or March at one in Bedford, Indiana. Both were
reassigned in the last week of May to Salem, Indiana, where
Respondent was commencing work for a new contract with
the East Washington (County) Water Company. Along with
the Phillipses, commencing work on that job also were labor-
ers Wayne Patton and Brock Fischer. Kippy ran the backhoe
and bulldozer and David operated the only trencher assigned
to the job. Respondent owned two other trenchers and oper-
ated them at other sites prior to mid-June 1991. Also em-
ployed on the Salem job on a sporadic basis was Gary Dil-
lard, Tom Williams’ former son-in-law. Dillard worked var-
iously as laborer, foreman, supervisor, and operator, depend-
ing on the job. During the summer of 1991, he shuttled be-
tween the Salem and Bedford jobs and divided his workweek
between the two places. Patton and Fischer were relatively
new, inexperienced workers. Fischer is reputed to be the son
of the administrator of the East Washington Water Company.
Respondent admits that it was obligated to pay the prevail-
ing minimum wage rate, as determined and applied under the
Davis-Bacon Act, at the Salem jobsite at least as long as
Federal funding lasted. Respondent’s contract obliged it to
lay 147,840 feet of water pipe in 120 calendar, i.e., 80 work-
ing days. Thus Respondent calculated that it must lay from
3000 to 4000 feet of pipe per day. A penalty was assessed
at $100 a day for work in excess of 120 days, but Tom Wil-
liams testified without specificity that ‘‘other options’’ were
open to him. David Phillips testified without contradiction
that extensions are, and have been, readily granted to every
job where he has worked.
It is undisputed that the general geographical area of the
rural Salem jobsite lay in the midst of embedded under-
ground rock. Clearly, the existence of rocks is an excavator’s
problem. When encountered, either the trencher must be
modified by the on-site removal of the dirt cutting chain and
its replacement with a rock cutting chain by the operator and
laborers, or two trenchers must be at hand, i.e., one for rock
cutting and one for dirt trenching. Tom Williams sought to
minimize the problem by testifying that he knew where the
rock was generally located, and that the Salem site was ‘‘not
particularly’’ rocky. He corroborated David Phillips’ testi-
mony that changing chains was too time-consuming and, as
such, a prohibitive procedure at Salem. He finally admitted
that he really was not aware of what was being encountered
in the dirt at Salem. I credit contrary, more convincing testi-
mony that yes, indeed the very rocky nature of the Salem
soil caused problems. In cross-examination, Respondent’s
witness Dillard admitted that during the first few weeks at
Salem, only one trencher was assigned there and that David
Phillips frequently encountered problems attempting to cut
through or around rock with a dirt chain. By not taking time
to change chains, David appears to have followed Respond-
435WILLIAMS CONTRACTING
ent’s policy of not resorting to the time consuming option of
changing chains. Tom Williams testified that you cannot
change chains every time you encounter rock because it is
too time consuming, and the appropriate procedure is to ‘‘lay
back and start laying again.’’ Dillard testified that it was ac-
ceptable procedure to try and cut through the rock and that
normally Respondent uses two trenchers ‘‘to expedite’’ the
procedure but did not do so initially at Salem. He testified
that there was a large amount of rocks at the Salem jobsite.
Another problem encountered at Salem was Respondent’s
lack of easement at the outset of work. Tom Williams admit-
ted this but insisted that it did not cause a slowdown because
the crew simply could hop and skip about to areas where
easements had been granted. His testimony is unbelievable
on its face. Williams admitted that in June he had easements
for only part of the 4-inch pipe installation and that it was
‘‘impossible’’ to lay 3-inch pipe before laying the 4-inch
pipe. More reasonable and believable is the unrefuted testi-
mony of David Phillips that during the first week at Salem,
the job was shut down for half a day by an easement dispute
and that bypassing areas of noneasement entailed lost time
consumed in nonproductive loading and unloading of equip-
ment and driving about to noncontiguous areas. I also credit
David Phillips’ certain, detailed, and specific testimony that
rock was encountered every 1000 feet at Salem. There was
no effective, explicit, competent contradiction. Finally, Kevin
Phillips testified without contradiction that he overheard
Allan Williams state that the Salem job was not going well
because of several problems, inclusive of machinery break-
downs and lack of easements.
C. The Concerted Wage Complaint
Before commencing the Salem job, David Phillips was
told by Allan Williams that the job was a ‘‘prevailing wage
job.’’ David later informed Kippy Phillips, Patton, and Dil-
lard. Allan Williams testified that for the first week or two,
the Phillipses were erroneously paid much less than the pre-
vailing wage but that Brock Fischer, a laborer of vastly less-
er job tenure, was paid the prevailing wage rate which gross-
ly exceeded the Phillipses wage rate. Neither Patton nor Dil-
lard were paid the prevailing wage rate for those early
weeks. Gene Van Scoyc is employed as a labor standards of-
ficer for the Indiana Department of Commerce (IDOC). It is
the function of her position to oversee compliance by local
contractors with prevailing wage determinations on those
federally funded jobs. Investigation and discoveries of pos-
sible noncompliance are reported to the Wage Claim Divi-
sion of the U.S. Department of Labor (DOL). Salem was a
federally funded job. The contract for the Salem job was ad-
ministered by an entity entitled ‘‘River Hills.’’ As the con-
tracted administrator, they are responsible to IDOC to see
that the construction is in compliance with the prevailing
area wage obligation. Employed by that agency was Teresa
Bradding who visited the Salem job and interviewed employ-
ees regarding their wages on about June 5 or 6, 1991. Brad-
ding reported her investigation findings to Van Scoyc who
later communicated with Respondent.
The Phillipses testified without contradiction as to the
events at that visitation. Allan Williams first instructed Kippy
Phillips to report to the investigator and to agree with what
she asked about his wages, i.e., confirm receipt of the pre-
vailing wage rate. When Kippy suggested that what he might
tell her was not in accord with his reported wage rate, Wil-
liams arranged for her to see Dave Phillips instead. With
Allen present and interceding to answer before Dave Phillips
could respond, the impression conveyed to Bradding was that
David Phillips was receiving $16 as his base hourly wage
rate, i.e., the prevailing wage. Afterward, Dave consulted
with Kippy Phillips and told him what was stated to be their
wage rate.
Upon receipt of their subsequent paychecks, the Phillipses,
Patton, and Fischer mutually discussed their paychecks to
find that only Fischer, a laborer, had received the apparent
higher prevailing wage rate whereas even the experienced
operators received substantially less. About a week later, Pat-
ton and the Phillipses thereafter discussed the disparity and
mutually agreed to make photocopies of their checks to sub-
mit to Bradding or the IDOC office in Indianapolis. Van
Scoyc testified that Kippy Williams communicated by tele-
phone with her at the IDOC office in Indianapolis prior to
his discharge in mid-June and complained that he believed
the employees were not being paid the obligatory prevailing
wage rate.
Tom Williams testified that in early June, he decided that
pipelaying progress was too slow at Salem. Both he and
Allan Williams testified to the same conclusion based upon
general observation. No records or other documentation was
adduced to establish objectively the amount of pipe that was
purchased, delivered and installed before or after mid-June.
Concededly, engineering records accessible to Respondent re-
flected such data, as, of course, did the date of purchase of
pipe which was an ongoing event. Pipe was purchased and
delivered as work progressed. When the supply of pipe
stopped, work stopped. Thus there must have been a direct
correlation of work progress to pipe delivery. Obviously, Re-
spondent had access to such records but did not adduce such
evidence. Instead, the Williamses relied upon their general-
ized, conclusionary testimony that only 1500 feet of pipe was
being installed daily.
Clearly, Respondent must have encountered some kind of
delay because, on about the morning of June 12, Tom Wil-
liams reproached both Dillard and David Phillips, who were
both ‘‘running crews’’ for him at the time, by telling them
that they needed to lay 3000 feet of pipe per day. David
Phillips’ testimony suggests that he perceived Williams’
comments more of a rebuke than even Williams’ own testi-
mony suggests. Kippy Phillips testified that Williams
‘‘jumped’’ on David Phillips and Dillard and said that there
would be more pipe laid or there would be ‘‘new faces’’ on
the job. To add to that perceived insult, Allan Williams had
called the crew ‘‘a bunch of idiots’’ according to Kippy’s
testimony. Allan Williams testified that he called the
Phillipses ‘‘dirty, ignorant, dumb [S.O.B.’s].’’ He testified
that he called them these names several times because of
poor production and poor work performance. Allan Williams
testified that from the first day, he complained to the
Phillipses of their slow production and that they needed to
lay 3000 feet per day. They contradict him and testify that
they were never told of any specific time targets or produc-
tion goals. According to Tom Williams, the first time he ap-
peared to have urged faster pipe laying was on June 12, de-
spite his testimony that he was aware in early June and even
late May of a danger of being unable to meet the 120-day
deadline. Also, Tom Williams’ testimony suggests that he di-
436 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
rected his remarks to the two crew leaders, Dave Phillips and
Gary Dillard.
The Phillipses, thereafter having been stung by insulting
epithets and the awareness that a new, inexperienced laborer
was being paid far more in wages than experienced machine
operators of about 7 and 15 years service, mutually decided
upon a course of action. They testified that they decided to
demand payment of the prevailing wage rate as Fischer had
been paid and that, if refused, they would quit their jobs and
seek employment elsewhere.
Normally, the Phillipses, who live a few miles from Orle-
ans, drive to the Orleans office and yard, park their personal
vehicles and drive the equipment fuel trucks 30 or more
miles to Salem. The truck has fuel to later resupply the ma-
chinery which has also itself been fueled. On the morning of
June 13, David and Kippy Phillips drove their personal vehi-
cles directly to the Salem job, leaving behind the fuel trucks.
They decided that they would deliver their ultimatum to
Allan Williams at the jobsite and, upon his rejection, they
would quit and go home.
The Phillipses did proceed with their plan. According to
their testimony, the ultimatum was given to Allan Williams
to get paid the prevailing wage rate as had Fischer. Accord-
ing to them, Williams stated that he would not pay them the
prevailing wage rate and, when they warned him that they
intended to drive to Indianapolis to submit copies of their
checks to the IDOC agent, Allan Williams answered ‘‘go on
in’’ or ‘‘go ahead.’’
In his initial testimony, Allan Williams’ description of the
incident differed. He claimed that he saw the Phillipses sit-
ting on a bank at the jobsite laughing and when asked why
they did not bring the fuel truck, answered that they ‘‘did
not feel like it.’’ According to Williams, he then ordered
them off the job, i.e., discharged them. The Phillipses there-
after reported to the Orleans office where they encountered
Tom Williams. His testimony is substantially in accord with
theirs as to what they represented to him was the reason they
were not at the jobsites with the fuel trucks, i.e., the wage
demand refusal by Allan Williams, Williams’ personal in-
sults, and their decision to quit.
According to the Phillipses, Tom Williams, upon seeing
them at the office and not at the jobsite with the fuel truck,
asked what was wrong. They thereupon stated that unless
they were paid the prevailing wage rate that they would quit
their jobs. Tom Williams agreed to pay them the prevailing
wage rate if they would return to work. David also com-
plained about ‘‘being talked to like a dog’’ by Allan Wil-
liams. Tom Williams’ testimony tended to stress the insulting
language complaint as their primary complaint, but he admit-
ted, particularly on cross-examination, that they complained
about not being paid the prevailing wage rate and that they
would not work unless they were paid that rate. In direct ex-
amination, he suggested that they willfully returned home in-
stead of to their jobs. In cross-examination, he admitted their
return to the job the next morning instead of that same day
was with his agreement and approval.
Allan Williams’ testimony undermines his own credibility
as to his assertion that he ordered the Phillipses off the job,
i.e., discharged them when they laughingly showed up with-
out the fuel trucks. He admitted that after a confrontation
with his father, at least over a complaint about his insults
and their ‘‘threat to quit,’’ they returned because Tom Wil-
liams refused to accept their ‘‘resignation.’’ I conclude that
Allan Williams contrived his version of the Phillips’ con-
frontation. I credit their testimony, including their threat to
Allan Williams to report Respondent to the IDOC as well as
the wage ultimatum which he rejected.
Kevin Phillips, brother to Kippy Phillips, was also em-
ployed by the Respondent sporadically since 1981. He
worked from Respondent during the spring of 1991 as a la-
borer until he voluntarily quit his job in the first part of June.
He was assigned to the ‘‘carefree’’ jobsite on route no. 64
and worked with Walter Weiniger and Bobby Fox laying
pipe. Kevin testified that at a time shortly before the layoff
of David and Kippy Phillips, he was present at the Orleans
shop with Weiniger and Allan Williams. He testified that he
heard Weiniger ask Williams how the Salem job was pro-
ceeding and that Williams answered that it was not proceed-
ing well because of a high degree of machine breakdowns,
easement problems, and the fact that David and Kippy Phil-
lips wanted the prevailing wage rate. Williams further stated
to Weiniger that Respondent could not afford to pay the pre-
vailing wage rate because they calculated their bid on a
lower wage rate. Weiniger was called as a General Counsel’s
witness. Although not declared hostile, Weiniger’s demeanor
was that of an extremely reluctant and anxiety ridden wit-
ness. He testified that he had no recollection of the conversa-
tion. Respondent can point to the natural proclivity of blood
brothers to support each other and the lack of corroboration
by Weiniger. Those are factors to consider in resolving a
credibility conflict between Kevin Phillips and Allan Wil-
liams, whose credibility was found lacking already, as noted
above, and whose demeanor throughout the trial lacked cer-
tainty, conviction, and spontaneity. However, Allan Williams
offered no effective, if any, contradiction of Kevin Phillips’
testimony, which I credit.
Kevin Phillips testified, again without contradiction, to a
conversation with Tom Williams, a witness whose testimony
as to the terrain being ‘‘not particularly’’ rocky has been
shown above to be false and contradicted by Respondent’s
own witnesses. According to Kevin Phillips’ credible testi-
mony, he engaged in the following conversation with Tom
Williams on the carefree jobsite, on the day that David and
Kippy Phillips delivered their ultimatum. Weiniger, the for-
getful witness, again was present. Williams told Phillips that
his kin had left the jobsite. When asked the reason, he ex-
plained that they had demanded the prevailing wage rate
which would last only until the federal funding lasted, a pe-
riod he estimated to be only 1 month. Williams then told
Kevin that ‘‘it was not smart’’ for David and Kippy to have
asked to be paid the minimum wage. Kevin Phillips effec-
tively impeaches testimony that nonpayment of prevailing
wage was an ‘‘error.’’ On June 13, the Phillipses returned to
work and received backpay as well as the prevailing wage
rate. Even Patton received an increase in his pay.
In June and July 1991, Respondent became the subject of
investigations by IDOC, and DOL as well. It is admitted by
Allan Williams that as a result of the Phillipses’ complaint
and the consequent investigations, Respondent was subject to
adverse findings which resulted in backpay assessments on
other of its jobsites. Several employees thereafter received
DOL notifications of backpay due to them by Respondent.
437WILLIAMS CONTRACTING
D. The Phillipses’ Layoff
Very quickly on or after June 13, according to credible,
uncontradicted testimony, Respondent assigned two trenchers
to the Salem jobsite. The job accelerated so quickly that on
Friday, June 21, the supply of 4-inch pipe was reduced to
only enough for 1-1/2-days work. Although no records were
submitted, it appears from the vague testimony of the
Williamses and others that no new 4-inch pipe was to be de-
livered until several weeks later. Allan Williams testified that
4-inch pipe was the only pipe scheduled to be installed at
that point. Although there was a supply of 3-inch pipe avail-
able, both Williamses claimed that they could not install that
type of pipe at that time. Accordingly, they say, they laid off
the Phillipses and at the same time decided that since they
were then two worst workers, they were considered to be
permanently severed from future employment recall. Tom
Williams and Allan Williams operated the machines to install
the remaining pipe. Why they did not even allow the
Phillipses to finish the remaining 4-inch pipe is not ex-
plained, unless it was the sudden realization on that day that
the Phillipses’ job performance had been so terrible, as they
later testified, over the entire 7 to 15 years of employment,
as to not warrant another day’s work. It is indeed remarkable
that Tom Williams would have had such sudden self-enlight-
enment of his own incompetence all those years in relying
upon David Phillips as substitute crew chief. There was no
explanation proffered as to why Respondent had tolerated
such apparent incompetence for so long. There is no evi-
dence that machine operators are either in short supply or
readily available.
After the remains of the 4-inch pipe had been installed, the
other employees, as had been routine past practice even with
the Phillipses, were assigned to other jobs and kept working.
Even such raw recruits as Fischer and Patton were assigned
to other jobs and kept working.
The Phillipses testified that they observed a supply of 3-
inch pipe on hand and testified, without contradiction, to past
experience of being assigned 3-inch pipe installation when 4-
inch pipe was not available. David Phillips’ technical expla-
nation of how it could have been done was not effectively
contradicted. In cross-examination, David Phillips admitted
he did not have access to the Salem job. However, Respond-
ent did not proffer those same blueprints to corroborate its
own witnesses. Allan Williams’ testimony that only 4-inch
pipe was able to be installed at that point contradicts Re-
spondent testimony as to the flexibility of moving crews
around, hither and yon, to avoid and later return to rocky
areas, or areas of easement availability. There is no denial
that the entire project did call for 3-inch pipe. Tom Williams
admitted that there was no target date to install one type of
pipe over another. He testified that the 4-inch pipe was only
a ‘‘small portion of the job.’’ Respondent’s witness Dillard
testified that at Salem, up to that point ‘‘mostly’’ 4-inch pipe
had been laid. No records were adduced that probably could
have revealed precisely what type of work was involved,
when and where.
Allan Williams testified, when asked in direct examination
whether 3-inch and 4-inch pipe could be laid ‘‘at the same
time?’’ ‘‘You could if you have enough.’’
Tom Williams testified in cross-examination that there was
no target date for 4-inch pipe, that whether 4-inch, 3-inch,
or 2-inch pipe, it made no difference. He was then asked if
it made any difference whether he could have started laying
3-inch pipe. He answered: ‘‘It makes no difference.’’ Then
he realized the import of that answer and he testified that
once he ran out of 4-inch pipe, it was ‘‘impossible’’ to lay
3-inch pipe. His inconsistent, conclusionary testimony was
not supported by any detailed explanation whatsoever, as it
was not corroborated by any sort of documentation, despite
the admitted existence of readily available engineering
records and supply invoices.
After what appears to be a period of several weeks, work
resumed at Salem. Allan Williams operated a trencher until
he was injured, and a new employee was hired to replace
him. Other employees were transferred to the Salem jobsite.
Tom and Allan Williams testified that the layoff was de-
cided to be permanent because of their assessment of the
Phillipses to be their worst employees. Indeed, so entranced
by this defense were they that they fell into gross embellish-
ment and obvious exaggeration the longer they testified. Low
productivity, abuse of machinery, negligent cutting of under-
ground telephone cables not only were manifested by the
Phillipses from their immediate commencement of work at
Salem, but during their entire 7 to 15 years of employment.
The Williamses’ testimony in this regard was so deeply
flawed and unconvincing that it totally eroded their veracity.
Not only was such testimony vague and conclusionary, but
where it was attempted to be documented, the documentation
backfired. For example, Tom Williams attempted to support
his testimony that David Phillips broke a chain. When ques-
tioned by the General Counsel as to the circumstance for the
proffered bill, Williams admitted that a new chain was un-
necessarily purchased because the alleged ruined chain had,
in fact, been repaired and returned to the machine. David
Phillips’ testimony as to the normal wear and tear on ma-
chinery was far more coherent and convincing.
I do not intend to spend too much discussion on the bogus
issues of machinery abuse, cutting telephone cables, etc. It
is sufficient to observe that even if such history of poor per-
formance existed, it was previously condoned by years of
toleration and, more particularly, disregarded when Tom Wil-
liams refused to accept the Phillipses’ proffered resignation
on June 13. However, I find that the Phillips did not have
a history of being Respondent’s worst workers. Respondent
witness Dillard duly followed leading direct examination as
to such conduct as well as alleged low productivity at Salem
by the Phillipses. In cross-examination when he was required
to think about his responses, he admitted that the Phillipses
engaged in no conduct that was not routinely acceptable for
any worker on the job.
Respondent’s generalized, undocumented, unfounded,
conclusionary testimony as to the Phillipses’ low productivity
is belied by the fact that on June 13, Tom Williams refused
to accept their termination. As shown above, the credible evi-
dence establishes that contrary to the testimony of the
Williamses, the Salem jobsite was beset with problems that
impeded productivity beyond the control of the Phillipses.
Those problems were also compounded by the Phillipses’
concerted demand for payment of the prevailing wage at the
job rate and their threat to report Respondent to the IDOC.
Further indicia of the falsity of Respondent’s low produc-
tivity defense is the fact that work proceeded so rapidly that
Respondent ran out of pipe only a week after the concerted
wage demand. Tom Williams testified that he himself as-
438 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sesses progress by the speed with which the pipe supply
dwindled. Yet, he testified that the Phillipses continued to
work at only half speed despite his acquiescence to their
wage demand and, yet, the 4-inch pipe veritably ‘‘dis-
appeared’’ before his eyes in the following week. The an-
swer to the work problem was clear. Respondent, until June
13, failed to follow its usual procedure of using two trench-
ers in a highly rocky terrain. For some reason on June 12,
Tom Williams took out his frustration on the crew leaders,
i.e., David Phillips and Dillard. He did not specifically ac-
cuse David and Kippy of malingering on June 11 as, indeed,
he did not even cite it or any other work deficiency as wor-
thy enough for discussion when they made their subsequent
wage demand. It would have been perverse for Williams not
to have brought up their incompetencies when he acquiesced
to their wage demand. Moreover, ‘‘new faces’’ or at least
one new face on the job did occur which reasonably resulted
in higher productivity, i.e., a second trencher operator.
The real problem Respondent suffered by virtue of the
Phillipses’ employment was revealed in Kevin Phillips’ testi-
mony noted above, i.e., a concerted demand for higher pay
which Respondent had not calculated into its costs. Thus, the
Williamses took over the direct operations of the machines
and rid themselves of the complainers.
Allen Williams’ testimony recited the various reasons for
the Phillipses’ termination. One of the more absurd citations
was the Phillipses’ alleged abandonment of their work on
June 12 and their nontransportation of the fuel truck to the
jobsite. Not only was that conduct condoned by Tom Wil-
liams, but was with his explicit approval, if not direction, as
the Phillips more credibly testify that they did not return to
the site that day. After Allan Williams recited these disingen-
uous, palpably false reasons for the Phillips’ discharge during
his testimony as an adverse witness, he was asked whether
there were any other reasons. Off guard for a moment, he
unwittingly touched upon what I find is the only truthful ele-
ment in his explanation, i.e., they were ‘‘complainers.’’ He
later explained that they had a history of complaining. He
cited as example that they had complained about vehicles
they were forced to drive as a condition of their employment.
He testified that he had in the past ordered them to ‘‘knock
it off,’’ i.e., stop complaining. They did not. Tom Williams
testified: ‘‘They were never satisfied.’’
Conclusions
Allan Williams’ testimony virtually admits that the
Phillipses were laid off, at least in part, because they
concertedly complained about working conditions. The clear
inference of this admission is that they disobeyed his orders
and complained once too much, this time about their wages.
Thus the General Counsel, by this adverse witness alone, has
sustained the burden of proof required by Wright Line, 251
NLRB 1083 (1980). However, it is not even necessary to re-
sort to a Wright Line analysis. The General Counsel has
proven that Respondent’s proffered explanation for the layoff
and nonrecall of the Phillipses is so grossly false that even
in the absence of direct evidence of knowledge of an animus
to their concerted, protected activities, the trier of fact is con-
strained to infer an unlawful motivation. Shattuck Denn Min-
ing Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966). In
this case, the General Counsel has established that Respond-
ent was aware of the concerted, protected activity, including
a threat to report it to the IDOC and that the Respondent was
adverse to a payment of higher wages, i.e., the object of their
concerted activity. The General Counsel has established that
Respondent was adverse to the discriminatees as ‘‘complain-
ers’’ who ‘‘were never satisfied.’’ The General Counsel has
established that subsequent to the discriminatees’ threat to re-
sort to the IDOC, and necessarily the DOL after their layoff,
Respondent’s interests were adversely affected by actions of
those agencies. I find that the General Counsel has adduced
abundant evidence that compels the conclusion that the
Phillipses were permanently laid off because of their con-
certed, protected activities and that their nonrecall was ce-
mented by the consequences of those activities.
The Phillipses’ concerted activities on behalf of higher
wages for themselves were clearly protected by the Act. See
Meyers Industries, 268 NLRB 493 (1984) (Meyers I); Meyers
Industries, 281 NLRB 882 (1986) (Meyers II), affd. sub
nom. Prill v. NLRB, 835 F.2d. 1481 (D.C. Cir. 1987), cert.
denied 487 U.S. 1205 (1988). Accordingly, I find that Re-
spondent’s layoff of and decision to discharge David Phillips
and Kippy Phillips on June 21, 1991, constituted violations
of Section 8(a)(1) of the Act as alleged, constituting unfair
labor practices interfering with commerce as set forth in the
Act.
Although direct evidence of motivation, I do not find that
the testimony of Kevin Phillips contains a sufficiently clear
statement by Respondent to an employee that the Phillipses
were discharged because of their concerted, protected activi-
ties to support the other allegation in the complaint of an
8(a)(1) violation.
CONCLUSIONS OF LAW
1. Respondent, Williams Contracting, Inc., is an employer
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Respondent violated Section 8(a)(1) of the Act on June
21, 1991, by terminating the employment of Kippy Phillips
and David Phillips because of their concerted activities pro-
tected by the Act.
3. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act. I shall recommend that Re-
spondent be ordered to offer Kippy Phillips and David Phil-
lips reinstatement and to make them whole for any loss of
wages they may have suffered due to their unlawful dis-
charges. The backpay due shall be computed in the manner
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest as computed in New Horizons for the Retarded,
283 NLRB 1173 (1987). I shall also recommend that Re-
spondent be ordered to remove from its files any reference
to their unlawful discharges on June 21, 1991, and to notify
them in writing that this has been done and that evidence of
their unlawful discharges will not be used as a basis for fu-
ture personnel actions against them.
439WILLIAMS CONTRACTING
1 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.
2 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 these findings of fact and conclusions of law and on
the entire record, I issue the following recommended1
ORDER
The Respondent, Williams Contracting, Inc., Orleans, Indi-
ana, its officers, agents, successors and assigns, shall
1. Cease and desist from
(a) Discharging, laying off, or otherwise discriminating
against its employees because of their concerted activities
protected by the Act.
(b) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of the rights
guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Kippy Phillips and David Phillips immediate 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, and make them whole for any loss of
earnings and other benefits suffered as a result of the dis-
crimination against them in the manner set forth in the rem-
edy section of this decision.
(b) Remove from its files any reference to their unlawful
discharges of June 21, 1991, and notify Kippy Phillips and
David Phillips in writing that this has been done and that the
discharges will not be used against them in any way.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its Orleans, Indiana place of business copies of
the attached notice marked ‘‘Appendix.’’2 Copies of the no-
tice, on forms provided by the Regional Director for Region
25, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees 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.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT lay off, discharge, or otherwise discriminate
against our employees because of their concerted activities
protected by the Act.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed to them by Section 7 of the Act.
WE WILL offer Kippy Phillips and David Phillips imme-
diate unconditional 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, and WE WILL make
them whole for any loss of earnings and other benefits result-
ing from their discharge, less any net earnings, plus interest.
WE WILL remove from our files any reference to their un-
lawful discharges of June 21, 1991, and notify Kippy Phillips
and David Phillips in writing that this has been done and that
the discharges will not be used against them in any way.
WILLIAMS CONTRACTING, INC.