Stanford Linear Accelerator Center, 464 (1999)

Stanford Linear Accelerator Center, a Division of Leland Stanford Jr. University (SLAC) and Louis E. Davoli. Case 20-CA-26960

May 21, 1999

DECISION AND ORDER

BY MEMBERS FOX, HURTGEN, AND BRAME

On March 18, 1997, Administrative Law Judge Gerald

1. Wacknov issued the attached decision. The General Counsel filed exceptions and a supporting brief. The Respondent filed an answering brief to the General Counsel's exceptions.

   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.

   ORDER

   The National Labor Relations Board adopts the recommended Order of the administrative law judge and the complaint is dismissed.

   Jonathan Seagle, Esq., for the General Counsel.

   Eli W. Gould, Esq. (McCutchen, Doyle, Brown & Enersen), of

   Palo Alto, California, for the Respondent.

   1 The General Counsel 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 We adopt the judge's finding that the Respondent did not, as alleged, violate Sec. 8(a)(3) and (1) of the Act by dismissing and thereafter refusing to rehire Louis Davoli. In doing so, however, we do not agree with the judge that the General Counsel established a prima facie case of discriminatory layoff and nonrehire. Although Davoli testified that he had told the Respondent's representatives, Josef Rehacek and Richard Atkinson, that he had videotaped work at the Respondent's facility in order to help secure more work for the union-represented employees, the judge discredited this testimony. He found, based on the credited denials of Atkinson and Rehacek, that none of the Respondent's representatives who had anything to do with Davoli's dismissal knew of his alleged protected union activity. Without this knowledge, there is no basis for finding that there was a prima facie case of discriminatory conduct. We also agree with the judge that even if there was a prima facie case the Respondent rebutted it. See Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982) (approved in NLRB v. Transportation Maintenance Corp., 462 U.S. 393 (1983)).

   Member Fox agrees with her colleagues that the General Counsel has failed to show that antiunion sentiment was a motivating factor in the dismissal of and refusal to rehire Louis Davoli. She therefore finds it unnecessary to pass on the Respondent's alternative defense that even if Davoli's protected activity was a motivating factor the Respondent would have taken the same actions even in the absence of his protected activity.

   DECISION

   STATEMENT OF THE CASE

   GERALD A. WACKNOV, Administrative Law Judge. Pursuant to notice, a hearing in this matter was held before me in San Francisco, California, on January 16 and 17, 1997. The original charge was filed on October 10, 1995, by Louis E. Davoli, an individual. Thereafter, the charge was amended on November 27, 1995. On February 29, 1996, the Regional Director for Region 20 of the National Labor Relations Board (the Board) issued a complaint and notice of hearing alleging violations by Stanford Linear Accelerator Center (the Respondent or SLAC) of Section 8(a)(1) and (3) of the National Labor Relations Act (the Act). The Respondent's answer, duly filed, denies that it has violated the Act as alleged.

   The parties were afforded a full opportunity to be heard, to call, examine, and cross-examine witnesses, and to introduce relevant evidence. Since the close of the hearing, briefs have been received from counsel for the General Counsel (the General Counsel) and counsel for the Respondent. On the entire record, and based on my observation of the witnesses and consideration of the briefs submitted,1 I make the following

   FINDINGS OF FACT

   1. JURISDICTION

      The Respondent is a nonprofit corporation with an office and place of business located in Menlo Park, California, and has been engaged in the business of education and research, including the operation of a nuclear accelerator research facility sometimes referred to as SLAC. In the course and conduct of its operations, the Respondent annually derives gross revenues, excluding contributions which, because of limitation, by the grantor are not available for operating expenses, in excess of $1 million, and purchases and receives goods and materials valued in excess of $5000 directly from points outside the State of California. It is admitted and I find that the Respondent is engaged in commerce or in an industry affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act.

   2. THE LABOR ORGANIZATION INVOLVED

      It is admitted and I find that at all material times International Brotherhood of Electrical Workers, Local 617, AFL-CIO (the Union) has been a labor organization within the meaning of Section 2(5) of the Act.

   3. ALLEGED UNFAIR LABOR PRACTICES

1. The Issues

   The principal issue raised by the pleadings is whether the Respondent has violated Section 8(a)(1) and (3) of the Act by dismissing and thereafter refusing to rehire an employee of a subcontractor because of the employee's protected concerted and/or union activities.

2. The Facts

   Louis Davoli (the Charging Party) is a member of the Union. Over a period of many years he has been hired on various occasions by Valhalla Builders and Developers (Valhalla) as a journeyman electrician and has been assigned to work on various

   1 As there has been no provision in this proceeding for the filing of reply briefs, the Respondent's reply brief has not been considered.

   projects at the Respondent's linear accelerator site in Palo Alto, California. The record indicates that Davoli's last such period of employment began on about December 14, 1994, and ended on July 20, 1995, and that during this period he worked on several different projects at the Respondent's jobsite. The last project on which he worked commenced in about May 1995.2

   Thus, he worked some 2-1/2 months on this final project.

   Davoli testified that in July he overheard a union organizer telling other union people on the site that it would be useful for them to document the different types of work then being carried out at the site, as this would be the subject of a forthcoming meeting between representatives of the Union and the Respondent. Thereupon, on July 14, Davoli took it upon himself to videotape certain electrical work that was being performed by Respondent's plant maintenance electricians rather than by outside contractors, apparently believing that such work should be performed by Valhalla employees or other union employees at union scale, in accordance with Davis-Bacon Act proscriptions. Davoli took this videotape during a one-half-hour period between 6 and 6:30 a.m., prior to his regular starting time which was 7 a.m. Apparently, no employees were working at the time, and Davoli did not testify that he was observed in this endeavor by any employees or any representatives of the Respondent.

   Thereafter, Davoli advised his union business representative, Joseph Hogan, that he had taken the video. He offered it to Hogan, but Hogan said that he was not interested in seeing it because he already had photographs "of different things out there." Davoli further testified that he also advised his foreman, another Valhalla employee by the name of Dick Korfman, that he was going to take the videotape of the work and, later, that he had done so, because "We've got to fight for our work. We're getting less and less work all the time."

   In addition, Davoli testified that sometime after July 14 he also told Josef Rehacek, one of Respondent's representatives, what he had done, and explained that the video was for use by the union representatives for the purpose of attempting to obtain additional work for union members at the Respondent's jobsite. He told Rehacek this because he just wanted to keep Rehacek apprised of his activities as Rehacek was "kind of like a friend to me." Davoli had no concerns about letting Rehacek know of his activities in this...