Riley International Corp., 785 (1994)

Riley International Corporation and Thomas H.

Wagner. Case 21-CA-29277

August 18, 1994

DECISION AND ORDER

BY MEMBERS STEPHENS, DEVANEY, AND COHEN

On February 2, 1994, Administrative Law Judge George Christensen issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering 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 briefs,1 and has decided to affirm the judge's rulings, findings,2 and conclusions3 and to adopt the recommended Order.

ORDER

The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Riley International Corporation, Carlsbad, California, its officers, agents, successors, and assigns, shall take the action set forth in the Order.

Brian Sweeney, for the General Counsel.

Jack M. Riley, of Carlsbad, California, for the Respondent.

DECISION

STATEMENT OF THE CASE

GEORGE CHRISTENSEN, Administrative Law Judge. On October 5, 1993, I conducted a hearing at San Diego, California, to try issues raised by a complaint issued by Region 21 on April 30, 1993, based on a charge filed by Thomas

H. Wagner on March 22, 1993.

The complaint alleged and Riley International Corporation

(Respondent) denied the Respondent violated Section 8(a)(1) of the National Labor Relations Act (Act) by discharging Wagner for complaining to the Respondent concerning wages and working conditions of the Respondent's employees, the need for a meeting between the Respondent and the employees to resolve those complaints, and for discussing that need for those purposes with other employees and attempting to enlist their support in seeking a meeting with management to discuss and attempt to resolve their mutual complaints.

The issues created by the foregoing are whether Wagner engaged in the activities just set forth; if so, whether he was discharged for engaging in those activities; and if so, whether the Respondent thereby violated the Act.

The General Counsel appeared by counsel and the Respondent appeared by its president, Jack M. Riley. Both were afforded full opportunity to adduce evidence, examine and cross-examine witnesses, argue, and file briefs. Both filed briefs.

Based on my review of the entire record, observation of the witnesses, perusal of the briefs, and research, I enter the following

FINDINGS OF FACT1

1. JURISDICTION

   The complaint alleged, the answer thereto admitted, and I find at all pertinent times the Respondent was an employer engaged in commerce in a business affecting commerce within the meaning of Section 2 of the Act.

2. THE ALLEGED UNFAIR LABOR PRACTICES

   A. Facts

   At all pertinent times the Respondent was engaged in the business of modifying aircraft at the Palomar airport in Carlsbad, California, employing a staff of aircraft mechanics.

   At pertinent times Jack M. Riley was the Respondent's president, Daniel M. Erickson was the Respondent's vice president and successively the Respondent's director of maintenance and director of research and planning, George Puthoff was the Respondent's director of maintenance (suc-

   1 The Respondent has moved to reopen the record to introduce additional evidence on the ground that it was not represented by legal counsel at the hearing in this case because of insufficient funds to pay for an attorney. We deny the motion as the Respondent has not shown that the evidence it seeks to offer was newly discovered or previously unavailable, or that extraordinary circumstances exist due to the absense of counsel that would justify reopening the hearing.

   2 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.

   3 In adopting the judge's finding that the Respondent unlawfully discharged employee Thomas Wagner, we note that, as Wagner credibly testified, the Respondent told him that one of the reasons for his discharge was that he urged employees to join together and bring their complaints about wages and working conditions to management. The judge found that this protected activity ''played a prominent role in Wagner's discharge.'' For this reason, the General Counsel has established a strong prima facie case of a violation in Wagner's discharge. We find that, on this record, the Respondent has failed to show that it would have discharged Wagner in the absence of his protected concerted activities. Indeed, the judge found little or no evidentiary support for the various other reasons that the Respondent urged as grounds for Wagner's discharge. Thus, we agree with the judge that the Respondent has not met its burden under Wright Line, 251 NLRB 1083 (1980), to rebut the General Counsel's prima facie case of a violation.

   1 While every apparent or nonapparent conflict in the evidence has not been specifically resolved below, my findings are based on my examination of the entire record, my observation of the witnesses' demeanor while testifying, and my evaluation of the reliability of their testimony; therefore any testimony in the record which is inconsistent with my findings is discredited.

   ceeding Erickson) and successively the Respondent's parts manager, Robert C. Harrell was the director of maintenance (succeeding Puthoff), and at pertinent times Riley, Erickson, Puthoff, and Harrell were supervisors and agents of the Respondent acting on its behalf within the meaning of Section 2 of the Act.

   The Respondent hired Wagner as an aircraft mechanic in November 1990. He remained in that position until his discharge on February 19, 1993.

   Erickson was the Respondent's director of maintenance until the summer of 1992, when he became the Respondent's research and development director (retaining his vice presidency), and Puthoff succeeded Erickson as the Respondent's director of maintenance.

   The succession was communicated to the aircraft mechanics by Puthoff in the summer of 1992 at a meeting attended by Erickson, Puthoff, and the mechanics.

   During the fall and winter of 1992, and continuing into early 1993, during both working and nonworking hours, Wagner and other mechanics engaged in frequent conversations wherein they discussed their dissatisfaction with current pay scales and working conditions.2

   During his discussions with other mechanics concerning their mutual complaints, Wagner consistently advocated the mechanics join together in seeking a meeting with management to discuss and resolve their complaints.

   In January 1993, Puthoff conducted a meeting with the mechanics, in the presence of Erickson and Harrell. He stated Harrell was going to succeed him as director of maintenance and he was becoming parts manager. He went on to state the mechanics were to strictly adhere to the work schedule in the future, i.e., to report for work at the designated starting time, not to leave the premises during working hours, and not to cease work until the designated end of the shift.3

   Wagner asked Puthoff if there were going to be any job evaluations and pay raises. Puthoff replied this wasn't the proper time to discuss the subject. Another mechanic stated the Respondent ought to establish a seniority system with systematic pay raises. Puthoff repeated his observation this wasn't the proper time for a discussion of that subject. Wagner asked when was there going to be an appropriate time. Puthoff replied he didn't know, it wasn't anything he could do anything about, it was unlikely there would be any pay raises for quite a while4 and it wasn't the proper time to discuss the subject.

   Following that meeting, Wagner and other mechanics continued discussing their mutual complaints over their wages and working conditions during both their working and non-working hours and Wagner continued advocating the me-

   chanics join together in seeking a meeting with Respondent's management to discuss and resolve their complaints.

   On January 29, 1993, Wagner contacted Puthoff, stating the mechanics were dissatisfied over his failure to address their complaints. Puthoff replied only Jack Riley could remedy the complaints. Wagner stated perhaps Riley would resolve the complaints if he met with the mechanics and discussed their complaints with them. Puthoff said he talked to Riley, Riley was not going to make any changes, and asked Wagner if he was seeking strike action. Wagner denied that was his intention. Puthoff said he would talk to Erickson and get back to Wagner.

   Later the same day Puthoff contacted Wagner, said he talked to Erickson and Erickson said it wasn't a good time to seek strike action. Wagner replied Puthoff misunderstood him, he wasn't seeking strike action, he was seeking a meeting between management and the employees to discuss and resolve their complaints. Puthoff replied this wasn't the time for that, Riley would fire Wagner if he knew that was what Wagner was seeking and he would lose his job if he supported Wagner.

   Upset over the discussion, Wagner left work prior to the end of the workshift.

   Wagner worked the following day (a Saturday). There was no mention by management of his leaving work the preceding day prior to the end of his workshift.

   When Wagner came to work the following Monday (February 1, 1993), Harrell told Wagner that Puthoff wanted to talk to him. Wagner went to Puthoff's office and Puthoff upbraided him for leaving work early the preceding Friday after he told Wagner not to promote strike action. Wagner responded he was not advocating strike action, what he sought was a meeting between management and the mechanics...