Consolidated Services, 845 (1976)

CONSOLIDATED SERVICES

I Charles Edwin Laffey, d/b/a Consolidated Services and United Steelworkers of America , AFL-CIO and Earl E. Risner. Cases 25-CA-7121 and 25CA-7121-2

April 9, 1976 DECISION AND ORDER

BY CHAIRMAN MURPHY AND MEMBERS JENKINS

AND WALTHER

On December 15, 1975, Administrative Law Judge Ivar H. Peterson issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed cross-exceptions and a brief answering the General Counsel's exceptions and in support of its crossexceptions.

Pursuant to the provisions of Section 3(b) of the National Labor- Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge to the extent consistent herewith.

1. The Administrative Law Judge found, and we agree, that Respondent violated Section 8(a)(1) of the Act by threats made during the election campaign.

Thus, the Administrative Law Judge, on the basis of clear credibility resolutions, found that Respondent violated Section 8(a)(1) through: (1) Foreman Jones' statement to employee Heise that Risner was terminated because he was a prime instigator of the Union, (2) Jones' statement to employees that if the Union did come in it was likely that their jobs would be adversely affected, and (3) the statement of Respondent's owner Charles Laffey at an employee meeting that Respondent's operations would be adversely affected if the Union came in. We do not, however, predicate any 8(a)(1) finding upon other alleged comments and threats not specifically credited by the Administrative Law Judge.

2. The complaint alleges that on February 21 and March 24, 1975, Respondent laid off employees in violation of Section 8(a)(3) and (1) of the Act. The Administrative Law Judge found, and we agree, that 'Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544( 1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings.

845 the layoffs were not violative of the Act. In addition to the factors cited by the Administrative. Law Judge, which primarily relate to the March 24 layoffs, record evidence amply supports his conclusion that neither the February 21 or the March 24 layoffs violated the Act.

As early as December 1974, Respondent's owner,

Charles Laffey, spoke with William Shirley, manager of engineering for Apex International Alloys, Inc., a company which accounts for approximately 95 percent of Respondent's business, about the economic conditions of Apex's business. Shirley indicated that business had begun to decline, that its plans for expansion had been delayed, and that Apex might reduce the work it provided Respondent. Similar conversations continued at intervals through March 24, 1976. In one such discussion, Shirley suggested that Laffey might want to lay off some employees or, at least, attempt to line up other sources of work in view of the probable reduction in work from Apex. In mid-February 1975 Laffey received a letter dated February 12 in which Shirley indicated that there would be a substantial reduction in Apex work allocated to Respondent and that, in the future, Apex's work would be awarded increasingly on a competitive bid basis. This new work allocation procedure placed Respondent at a competitive disadvantage because of high shipping costs due to Respondent's distance from the Apex projects. Following receipt of this letter, Laffey met with his employees to explain the situation and to warn of pending layoffs. He informed them that the layoffs would be made according to seniority, but requested that employees with no family obligations volunteer for early layoff. Seven employees were laid off on February 21.

On the basis of the above, we find that the record supports Laffey's explanation for the February 21 layoffs. We further find that those layoffs were prompted by the already diminished amount of Apex work Respondent received, as well as the anticipation of even further reductions in the future. Accordingly, we affirm the Administrative Law Judge's conclusion that the February 21 and March 24 layoffs were not discriminatory.

3. The Administrative Law Judge concluded that Respondent's termination of Earl Risner was not a violation of the Act. We do not agree. The Administrative Law Judge credits employee Gregory Heise's testimony that Foreman Jones said, in reference to Risner's termination, that Respondent 'fired your buddy . . . because he was head of the Union and a troublemaker.' In light of this credited testimony, we find that Risner's discharge was motivated, at least in part, by his exercise of Section 7 rights. It is well established that a discharge motivated in part by an 223 NLRB No. 126 employee's exercise of Section 7 rights is a violation of the Act even though another valid cause may also be present.' Accordingly, we find that Respondent's discharge of Risner violated Section 8(a)(3) and (1) of the Act .3

Since we have found that Respondent discriminatorily discharged employee Risner because of his union activities, we will order Respondent to offer him full reinstatement to his former job or, if it does not exist, to a substantially equivalent job, without prejudice to his seniority or other rights and privileges, with backpay computed on a quarterly basis plus interest at 6 percent per annum as described in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962), from the date of discharge to the date of a proper offer of reinstatement.

ORDER

Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent Charles Edwin Laffey, d/b/a Consolidated Services, Knox,

Indiana, his agents, successors, and assigns, shall:

1. Cease and desist from:

(

  1. Threatening or questioning its employees concerning their concerted or union activity.

    (b) Discharging or otherwise discriminating against any employee for supporting the United Steelworkers of America, AFL-CIO, or any other labor organization.

    (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act.

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

    (

  2. Offer Earl E. Risner immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for his lost earnings in the manner set forth in the Remedy.

    (b) Preserve and, upon 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.

    (c) Post at its offices and place of business in Knox, Indiana, copies of the attached notice marked 'Appendix .114 Copies of said notice, on forms provided by the Regional Director for Region 25, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material.

    (d) Notify the Regional Director for Region 25, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith.

    IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges violations of the Act not specifically found.

    2 Broyhill Company, 210 NLRB 288 (1974).

    7 We are not, of course, finding that Respondent was prohibited from discharging Risner for violating company rules, excessive absenteeism, or poor work performance. We are, instead, merely finding that Risner's termination was motivated in part by his union activities and was thus unlawful.

    4In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading 'Posted by Order of the National Labor Relations Board' shall read 'Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.' APPENDIX

    NOTICE TO EMPLOYEES

    POSTED BY ORDER OF THE

    NATIONAL LABOR RELATIONS BOARD

    An Agency of the United States Government WE WILL NOT threaten employees concerning their concerted or union activity.

    WE WILL NOT discharge or otherwise discriminate against any employee for supporting the United Steelworkers of America, AFL-CIO, or any other labor organization.

    WE WILL offer full reinstatement to Earl Risner to his former job or, if that job no longer exists, to a substantially equivalent one, without prejudice to his seniority or other rights and privileges, with backpay plus 6-percent interest.

    WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights under Section 7 of the Act.

    CHARLES EDWIN LAFFEY, d/b/a CONSOLIDATED SERVICES

    DECISION

    STATEMENT OF THE CASE

    IVAR H. PETERSON, Administrative Law Judge: The hearing in this case was held in Knox, Indiana, on September 24 and 25, 1975, upon...

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