Extract
Joseph Stallone Electrical Contractors, Inc., 1139 (2002)
Joseph Stallone Electrical Contractors, Inc. and International Brotherhood of Electrical Workers, Local Union No. 269, AFL-CIO. Case 4-CA- 30370
August 1, 2002 DECISION AND ORDER BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN AND COWEN On November 26, 2001, Administrative Law Judge William G. Kocol issued the attached decision. The Respondent filed exceptions and a supporting brief. The Charging Party filed an answering brief, and the General Counsel filed a brief in support of the judge's decision. 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 decided to affirm the judge's rulings, findings,1 and conclusions2 and to adopt the recommended Order as modified below.3 1. For the reasons set forth in the judge's decision, as further explained below, we agree that the Respondent violated Section 8(a)(1) when Owner Joseph Stallone made statements indicating that employee Andrew McIlvaine's layoff and recall were connected to the union activity of other employees. We also agree that the Respondent violated Section 8(a)(3) by laying off McIlvaine on May 15, 2001. On that date, Stallone called McIlvaine to his office and informed him that he was laid off. According to McIlvaine's credited testimony, Stallone said that "he was having some financial problems and that there were some things going on with the Union that he had to take care of." Stallone specifically mentioned that employees had talked to the Union and that it had allowed them to talk to him. He repeated that "when I get this straightened-When I get this taken care of, maybe in a couple of weeks, call me. Maybe I can hire you back." 1 The Respondent has excepted to some of the judge's credibility findings. The Board's established policy is 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. 2 No exceptions were filed to the judge's finding that the Respondent violated Sec. 8(a)(1) when its owner accused an employee of disloyalty because of the employee's union activity.3 We shall modify the recommended Order and notice to include reference to a Sec. 8(a)(1) violation found by the judge but not mentioned in those sections of his decision. We shall also substitute a new notice in accordance with our recent decision in Ishikawa Gasket American, Inc., 337 NLRB 175 (2001). Stallone then asked if McIlvaine had met with anyone from the Union and if he had signed a card. After McIlvaine answered, "yes" to each inquiry, Stallone's face flushed red. Stallone was previously unaware of McIlvaine's union affiliation. We agree with the judge that Stallone, in his conversation with McIlvaine, linked McIlvaine's layoff with the fact that other employees and the Union were presenting grievances to the Respondent.4 It is clear that this activity was protected by Section 7. It is equally clear that the Respondent, through Stallone, violated Section 8(a)(1) by telling McIlvaine that his layoff was linked to this Section 7 activity of the other employees. As to the 8(a)(3) allegation concerning the layoff of McIlvaine, we agree that the General Counsel has shown, by the 8(a)(1) statement above, that the Section 7 activity of the other employees was reason for the layoff of McIlvaine.5 We recognize that the decision to layoff was made prior to the meeting with McIlvaine and prior to the Respondent's knowledge of McIlvaine's union activity. However, inasmuch as this alleged 8(a)3) violation is based on th...See the full content of this document
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