Extract
Kajima Engineering & Construction, 1604 (2000)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
August 31, 2000DECISION AND ORDER BY CHAIRMAN TRUESDALE AND MEMBERS FOX AND LIEBMAN On January 29, 1998, Administrative Law Judge Burton Litvack issued the attached decision. The Respondent, the General Counsel, and the Charging Party filed exceptions, supporting briefs, and answering briefs. The Respondent and the Charging Party also filed reply briefs. 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 conclusions as modified and to adopt the recommended Order as modified and set forth in full below.2 The General Counsel and the Charging Party except to the judge's failure to find that the layoff of employee Todd Ewoldt violated Section 8(a)(3) and (1) of the Act. The judge concluded that the General Counsel had not met its burden of establishing that Ewoldt's union activities were a motivating factor in the Respondent's action against him because there was no evidence showing that the Respondent had knowledge of Ewoldt's union activities. He therefore recommended that this complaint allegation be dismissed. The General Counsel contends that the Board should infer from all of the circumstances, including evidence of the Respondent's demonstrated union animus as reflected in the numerous 8(a)(1) violations found by the judge, and the timing of the layoff, not only that the Respondent knew of Ewoldt's protected union activities or sympathies, but that this knowledge was the true motive behind the Respondent's selection of Ewoldt for layoff. The Charging Party also argues that the judge committed reversible error by his exclusion of relevant testimony from Ewoldt regarding his conversations with the Respondent's superintendent, Bruce Kellogg, about the Union and Ewoldt's union sympathies or activities. The Respondent, in opposing the General Counsel's and the Charging Party's exceptions, contends that the judge was correct in his dismissal of the 8(a)(3) and (1) allegation because Ewoldt was laid off due to lack of work. For the following reasons, we find merit in the General Counsel and the Charging Party's exceptions. It is well established that where there is no direct evidence, knowledge of an employee's union activities may be proven by circumstantial evidence from which a reasonable inference may be drawn. BMD Sportswear Corp., 283 NLRB 142 (1987), enfd. 847 F.2d 835 (2d Cir. 1988); and Montgomery Ward & Co., 316 NLRB 1248, 1253 (1995), enfd. 97 F.3d 1448 (4th Cir. 1996). Such circumstances may include the employer's demonstrated knowledge of general union activity, the employer's demonstrated union animus, the timing of the discharge in relation to the employee's protected activities, and the pretextual reasons for the discharge asserted by the employer. Greco & Haines, Inc., 306 NLRB 634 (1992); and E. Mishan & Sons, 242 NLRB 1344, 1345 (1979). Applying the above criteria here, we find, contrary to the judge, compelling circumstantial evidence that warrants an inference that the Respondent knew of or at least suspected Ewoldt of engaging in union activities or harboring union sympathies and that it terminated him be-cause of those activities in violation of Section 8(a)(3) and (1).3 The evidence reveals that the Respondent harbored animus against the Union as demonstrated in the judge's findings of numerous 8(a)(1) violations. Specifically, the Respondent unlawfully interrogated employees, including Ewoldt, in an attempt to ascertain how they were going to vote in the October representation election. In addition, the Respondent threatened the employees with plant closure and job loss if they chose the Union as their bargaining representative, promised employees increased wages and benefits if they rejected the Union, and threatened not to negotiate in good faith with the Union. Further, the Respondent discharged employees Robert Atteberry and Robert Rupp in violation of Section 8(a)(3) and laid-off employees Robert Hickman, Dan Billsby, Jim Mathers, Guy Kennedy, Justin McPhie, and Bucky Taylor in violation of Section 8(a)(5). We also find that the alleged reason proffered by the Respondent for Ewoldt's layoff does not withstand scrutiny. Ewoldt was one of the Respondent's most senior employees on its Del Webb project, having been hired in August 1995. He was a 637D scraper operator and possessed the ability to operate the Respondent's other heavy equipment, including blades, bulldozers, water pulls, and loaders. On December 9, 1996,4 the Respon-3 We agree with the Charging Party's contention that the judge erred in excluding testimony regarding conversations between Ewoldt and Superintendent Kellogg, which could have established direct evidence of the Res...See the full content of this document
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