Mark J. Leach Electrical Contractors, 1100 (1980)

1100 MARK J. LEACH ELECTRICAL CONTRACTORS Mark J. Leach d/b/a Mark J. Leach Electrical Contractors and International Brotherhood of Electrical Workers, Local Union No. 5, AFLCIO. Case 6-CA- 11831

August 27, 1980 DECISION AND ORDER

BY MEMBERS JENKINS, PENELLO, AND TRUESDALE

On February 20, 1980, Administrative Law Judge Stephen Gross issued the attached Decision in this proceeding. Thereafter, Respondent and the General Counsel filed exceptions and supporting briefs, and Respondent filed a brief in response to the General Counsel's exceptions.

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.

We agree with the Administrative Law Judge's findings that Respondent violated Section 8(a)(1) of the Act by threatening its employees, promising benefits, creating the impression that employees' union activities were under surveillance, and indicating that it would be futile for them to seek union representation. However, we find merit in the General Counsel's contention that, in addition to the above unlawful conduct found by the Administrative Law Judge, Respondent also engaged in an unlawful interrogation of employee Douglas Myers sometime in September 1978.1 Myers testified without contradiction that on this occasion Leach confronted Myers and asked him 'what's all this bullshit I hear, that you will vote for the union if you get a chance to vote?' Myers responded that he did not know anything about it and Leach said 'if you want to continue to work, stick with me.' 2

This inquiry amounted to an unlawful attempt to ascertain Myers' union sympathies in violation of Section 8(a)(1) of the Act and we so find.

The Administrative Law Judge further found that Respondent violated the Act by issuing written warnings on November 21 to employees Bernard Brooks, Dennis Pigford, Joseph Cekala,

Robert Ritz, and Douglas Myers, by laying off Myers on that date, and by 'indefinitely suspend' All dates refer to 1978. unless otherwise specified.

2 The Administrative Law Judge found that this latter statement constituted an unlawful threat 251 NLRB No. 151 ing' or terminating Brooks, Pigford, and Ritz for discriminatory reasons on November 30. However, he found merit in Respondent's contention that, in any event, Myers would have been laid off for lack of work approximately 2 weeks after his November 21 layoff. Accordingly, he concluded that Myers should receive backpay only for those 2 weeks, and that Myers was not entitled to reinstatement along with the other discriminatees. For the reasons set forth below, we agree with the Administrative Law Judge that the written warnings, layoffs, and terminations violated the Act.3

However, we find merit in the General Counsel's contention that the Administrative Law Judge erred in concluding that Myers would have been laid off in 2 weeks anyway and thus was not entitled to reinstatement and full backpay.

The record reveals that, from the inception of the union organizational campaign, Respondent, by threats, promises, and intimidation, sought to discourage its employees from supporting the Union.

In this regard, on several occasions Respondent's owner, Mark J. Leach, warned employees of the grave consequences that would befall those who supported the Union. Employee Bernard Brooks testified without contradiction that on June 29

Leach told him that he would 'find a way to fire you and make it tough on you' and that he would prevent Brooks from getting a job elsewhere by giving him a bad reference. Brooks further testified that Leach ended the conversation by stating that 'I could tell anybody I wanted, union friends or anybody about the conversation and that he would lie on a stack of Bibles that it wasn't true because his company and the safety of his wife and kid was [sic] in jeopardy.' Employee Douglas Myers testified, again without contradiction, that in August Leach told him that 'if you want to continue to work, stick with me' and also that Leach would never give the union supporters 'the satisfaction of letting them [the Union] come in.' Myers further testified that on November 15, 2 days before the election, Respondent's supervisor, Lawrence Hussar, told him that 'for my own good, if I wanted to stay working, stick with Mark.' Hussar also implied that Respondent would lay off employees because of their union activity.

Although Respondent claimed that, from the very beginning of the union campaign in February, the Union and its adherents were engaged in a slowdown and deliberate 'sabotage' on its worksites, including serious errors in construction which 3 Although the Administrative law Judge found that the warnings were discriminatory, he found that such action iolated only Sec 8(aXI) of the Act. Since Rspoindent' s discriminiation also constitutes a violation of Sec 8(a)(3) of the Act, \we hereby correct this inadvertent error MARK J. I.EACH EI.ECTRICAL CONTRACTORS I101 allegedly cost $30,000 to $40.000 to rectify, it ostensibly took no action against the alleged saboteurs because its counsel advised that disciplining employees prior to the election should be avoided.

However, approximately 1 week prior to the election, Respondent's supervisor, Hussar, began keeping a detailed daily log of the work performance of the alleged discriminatees at the Canonsburg jobsite, and also met with Leach each evening to discuss the employees' work. This log described the work performance of union adherents Brooks, Pigford, Cekala, Ritz, and Myers as substandard, using such nebulous terms as 'Production very poor,' 'very little work,' and 'Production 20%.' 4

In addition, the day after the election, Leach began spending substantial time at the Canonsburg jobsite on a daily basis, although he had previously spent little time there.

On November 21, Brooks, Pigford, Cekala, Ritz, and Myers each received written warnings from Respondent for poor work performance. Myers was also laid off the same day. ostensibly for lack of work. Thereafter, according to Respondent's notes, the employees' performance did not improve and Respondent decided to issue 'indefinite suspensions' to Brooks, Pigford, and Ritz on November 30. 5

Subsequently, Respondent offered to and did in fact meet with the Union concerning the suspensions. 6

As noted above, the Administrative Law Judge found that were it not for the union activities of these individuals, they would not have been discharged. We agree with this conclusion. Respondent had on numerous occasions threatened to discharge the union adherents and Leach indicated he would 'find a way' to accomplish this result.7

To that end, shortly before the election, Respondent began to scrutinize and record the employees' work performance more closely than it had ever 4 Although Respondent also introduced into evidence typed transcripts of notes concerning alleged absences, tardiness, and work errors dating back to May, these notes do not reflect that Respondent kept detailed logs of daily work performance at its jobsites until just prior to the election.

5 In addition, these logs contain several other self-serving statements For example. when allegedly warned for returning late from a coffeebreak, the notes indicate that the employees 'acked [sic] indifferent' to Hussar's warning. When Ritz was allegedly asked about an error involving the pouring of concrete, Hussar quotes him as saying, 'I guess I have caused enough trouble for today so I guess I better go home.' a Respondent's supervisor, Hussar. testified that, at this meeting, nion Representative Mahoney agreed that Respondent had ''just cause' for firing Ritz. Even if such a statement Were made, it is of slight evidentiary value, since there is no indication as to the context in which it \was made and it merely represents an opinion concerning incidents not within Mahoney's personal knowledge. More importantly, it is contradicted by the overwhelming weight of the evidence I In this regard, we disavow the Administrative Law Judge's comment that Leach's threat to fire Brooks 5 months before his (Brooks') discharge 'was largely sounding off. Without any real iniention behind it done in the past. 8

And although these employees had been employed by Respondent for a substantial time prior to the election without adverse comment, their work performance was all of a sudden constantly criticized and considered wanting in nearly every respect. These employees were then terminated several weeks after the Union had prevailed in the election. Thus, the numerous threats of discharge, the precipitous timing of Respondent's close scrutiny and reports of job performance, and the timing of the discharges themselves are sufficient evidence to give rise to the inference that the discharges were motivated by the employees' union activity.

In its effort to rebut the General Counsel's case and to show that the terminations were not unlawfully motivated, Respondent contended that the employees were terminated for engaging in a 'slowdown' and 'sabotage' on Respondent's construction projects. In addition, Respondent also introduced evidence that in late November Brooks and Ritz had feigned illness to go hunting and that on one occasion Ritz had refused to perform an assigned task.

With respect to the alleged slowdown, as noted above, Respondent introduced detailed notes written by Hussar, who supervised the Canonsburg project, ostensibly recording the daily work performed by the employees on the jobsite. the election, and continued to be kept for a short time after the discharges at issue. With few exceptions, the log stated that the employees' work production was...