Ellis Electric, 1187 (1994)

Daniel J. Ellis, d/b/a Ellis Electric and International

Brotherhood of Electrical Workers, Local 288.

Case 18-CA-12634

December 30, 1994

DECISION AND ORDER

BY CHAIRMAN GOULD AND MEMBERS BROWNING AND COHEN

On December 21, 1993, Administrative Law Judge William J. Pannier issued the attached decision. The Respondent filed exceptions and a supporting 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 brief, and has decided to affirm the judge's rulings,1 findings,2 and conclusions only to the extent consistent with this Decision and Order.

1. We agree with the judge that employee Jeffrey Hicks did not forfeit his right to reinstatement because he overstated his work experience on his job application. As the judge noted, the Respondent knew about Hicks' overstatement of his work experience with one employer-Delta Diversified-for almost a month before the March 9 layoff, but took no adverse action against Hicks-including the layoff-based on that knowledge. In fact, the layoff notice reads in part, ''In the event our work load picks up you will be eligible for rehire.''

In its brief, the Respondent argues that it did not discharge Hicks because of the overstatement regarding Delta Diversified because it was still awaiting information from a second employer-Fluor Daniel. However, the Respondent's office manager, Janet Ellis,

testified that she had received the information from Fluor Daniel ''within a day or two, before he (Hicks) got laid off.'' Regarding a third employer ''JBJ'' that Hicks had listed on his application, Janet Ellis testified she did not know the company or how to contact it.

In view of this testimony, we conclude that, prior to Hicks' layoff, the Respondent was aware that Hicks had overstated his work experience. Despite this knowledge, the Respondent laid off Hicks rather than terminating him, did not cite the overstatement as a basis for the layoff, and indicated that Hicks was eligible for rehire. Further, the Respondent has not produced evidence of any policy or practice of terminating employees who overstate their prior employment experience. Accordingly, the Respondent has failed to satisfy ''its burden of establishing that the discriminatee engaged in unprotected conduct for which the employer would have discharged any employee.'' Marshall Durbin Poultry Co., 310 NLRB 68, 70 (1993). We, therefore, agree with the judge that Hicks has not forfeited his right to reinstatement.3

2. We disagree with the judge that employees Peter Arbic, Ritchie Kurtenbach, and Jon Mariani should not be considered as part of the unit for purposes of determining whether the Union had majority support during the time when this showing of support is at issue (between February 26 and March 6).4 The judge did not include them because, by the pertinent dates, they had not worked sufficient days under the eligibility formula for the construction industry set forth in Steiny & Co., 308 NLRB 1323 (1992). However, the purpose of that formula is to determine which employees in the construction industry who are laid off at the time of an election are eligible to vote, ''in addition to those eligible to vote under the standard criteria,'''5 i.e., those employees hired and working on the pertinent date.6

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 In affirming the judge's finding that the credible evidence establishes a prima facie case of unlawful motivation for the March 9, 1993 layoffs, we make clear that we rely on the pretextual nature of the reasons the Respondent asserted as its defense. See Wright Line, 251 NLRB 1083, 1088 fn. 12 (1980) (absence of an legitimate basis for an action may form part of the proof of the General Counsel's case), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). See also NLRB v. Melrose Processing Co., 351 F.2d 693, 699 (8th Cir. 1965) (''[W]hen every other plausible motive has been eliminated and the reasons advanced are not persuasive, the union activity may well disclose the real motive behind the employ-er's action.''). Property Resources Corp. v. NLRB, 863 F.2d 964, 967 (D.C. Cir. 1988) (''Board's decision that the layoffs would not have occurred but for the antiunion animus is supported by evidence

. . . that the reason given for the layoffs at the time . . . was implausible.'').

3 See also Western Stress, Inc., 290 NLRB 678 fn. 3 (1988) (remedies are not forfeited where the evidence fails to show the employer would have otherwise terminated an employee for the alleged misconduct); and NLRB v. O'Hare-Midway Limousine Service, 924 F.2d 692, 698 fn. 5 (7th Cir. 1991), enfg. O'Hare-Midway Limousine Service, 295 NLRB 463 (1989) (where the court rejected the employer's contention, apparently raised for the first time, that the unlawfully discharged employee had forfeited his remedies because he did not list all traffic violations within the prior 3 years on his job application; the court relied, in part, on the fact that the employer did not discharge the employee until 2 or 3 months after it discovered the first of two omitted traffic violations).

We note that no party has excepted to the judge's finding that the Respondent's offer to reemploy laid-off employees Jeffrey Fisher and Jon Mariani ''does not relieve Respondent of its obligation to offer them reinstatement.''

4 There are no exceptions to the judge's finding that there were no laid-off employees who were part of the unit during the pertinent period for determining whether the Union had majority support.

5 Steiny & Co., supra at 1326.

6 See S. K. Whitty Co., 304 NLRB 776 fn. 5 (1991). (Although Steiny & Co. reversed S. K. Whitty Co. to the extent that case revised the eligibility formula for laid-off employees, it reaffirmed the

Continued

Arbic, Kurtenbach, and Mariani, who had started working for the Respondent on February 22, 3, and 9, respectively, were all actively on the Respondent's payroll between February 26 and March 6, when the Union's showing of majority support is at issue. Therefore, they were in the unit at the pertinent time without regard to the application of the Steiny & Co. formula for laid-off employees, and should be considered in determining whether the Union enjoyed majority support.

Including these three employees with Jerry Fox, Kendall Jacobs, Jeffrey Fisher, and Jeffery Hicks, who the judge found were in the unit between February 26 and March 6, the unit between those dates, including March 2, consisted of seven employees.

All but one of these employees-Fox-signed cards: Jacobs (February 25), Fisher (February 26), Hicks (February 26), Kurtenbach (March 2), Mariani (March

6), and Arbic (March 18). The Union, therefore, evinced majority support on March 2-the date the fourth card in the unit of seven employees was signed.

We adopt the judge's finding that by February 26, the Respondent had engaged in unfair labor practices affecting five employees.7 In addition, we agree with the judge that the Respondent has committed serious and pervasive unfair labor practices and that the lingering effects of the unfair labor practices warrant a bargaining order. Accordingly, we shall order the Respondent to bargain as of March 2, 1993, the date on which the Union achieved majority status, and by which date the Respondent had begun its unfair labor practices.8 Peaker Run Coal Co., 228 NLRB 93 (1977).

ORDER

The National Labor Relations Board orders that the Respondent, Daniel J. Ellis, d/b/a Ellis Electric, Independence, Iowa, its officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Laying off, discharging, or otherwise discriminating against Ritchie V. Kurtenbach, Jon Mariani, Jeffery Hicks, Jeffrey Fisher, Melissa Jacobs, and Kendall William Jacobs, or any other employee, because of activity on behalf of or support for International Brotherhood of Electrical Workers, Local 288, or any other labor organization.

(b) Interrogating job applicants and already employed employees about their own and other employees' union activity and sympathies, threatening closure and denial of wage increases and denying wage increases to discourage employees from union activity, granting and promising to grant wage increases to encourage opposition to union activity, prohibiting display of prounion insignia and covering insignia that are displayed, and directing that 911 be called if employees display insignia on company premises.

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

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

(a) Recognize and bargain collectively, effective March 2, 1993, with the International Brotherhood of Electrical Workers, Local 288, as the collective-bargaining agent of employees in the appropriate unit set forth below and, if an agreement is reached, sign a written contract embodying the terms of that agreement. The appropriate bargaining unit is:

All employees performing electrical work for Daniel J. Ellis, d/b/a Ellis Electric, but excluding office clerical employees, professional employees, guards and supervisors as defined in the Act.

(b) Offer Ritchie V. Kurtenbach, Jon Mariani, Jeff-ery Hicks, Jeffrey Fisher, Melissa Jacobs, and Kendall William Jacobs immediate and full reinstatement to the positions from which they were laid off or discharged, dismissing, if necessary,...