Anderson Construction

National Labor Relations Board - Administrative Judge Opinions

Apr 9, 2003

17-CA-021891 (N.L.R.B. Apr. 9, 2003)

JD(SF)–25–03
Kirksville, Missouri

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SAN FRANCISCO BRANCH OFFICE
DIVISION OF JUDGES

ANDERSON C & E, INC.
d/b/a ANDERSON CONSTRUCTION

and Case 17-CA-21891

OPERATIVE PLASTERS AND CEMENT
MASONS LOCAL UNION NO. 518

Michael Werner, Esq., Overland Park, KS,
for the General Counsel.

Anthony Mihalevich, Business Rep.
Kirksville, MO, for the Union.

Mark D. Anderson and Kathy Darling,
Kirksville, MO, for Respondent.

DECISION

Statement of the Case

JAY R. POLLACK, Administrative Law Judge: I heard this case in trial at Kirksville,
Missouri, on February 25, 2003. On September 25 2002, Operative Plasterers and Cement
Masons Union No. 518 (the Union) filed the original charge alleging that Anderson C & E, Inc.,
d/b/a Anderson Construction (herein called Respondent) committed certain violations of Section
8(a)(3) and (1) of the National Labor Relations Act, as amended (29 U.S.C. Section 151 et seq.,
herein called the Act). On November 25, 2002, the Union filed an amended charge against
Respondent. On November 26, 2002, the Acting Regional Director for Region 17 of the National
Labor Relations Board issued a Complaint and Notice of Hearing against Respondent, alleging
that Respondent violated Section 8(a)(3) and (1) of the Act by discharging employee Josh
Carman because of his support for the Union or because of his other protected concerted
activities. Respondent filed a timely answer to the complaint, denying all wrongdoing.

The parties have been afforded full opportunity to appear, to introduce relevant evidence,
to examine and cross-examine witnesses, and to file briefs. Upon the entire record, from my

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observation of the demeanor of the witnesses,1 and having considered the briefs submitted by the
parties, I make the following:

Findings of Fact and Conclusions

I. Jurisdiction

Respondent is a corporation, with an office and place of business in Kirksville, Missouri,
where it is engaged in the construction industry as an excavation and concrete subcontractor.
During the 12 months prior to issuance of the complaint, Respondent purchased and received at
its Kirksville, Missouri facility, goods and services valued in excess of $50,000 directly from points
outside the State of Missouri. Accordingly, Respondent admits and I find that it is an employer
engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act.

Respondent admits and I find that at all times material herein the Union has been a labor
organization within the meaning of Section 2(5) of the Act.

II The Alleged Unfair Labor Practices

A. The Facts

Respondent is an excavation and concrete contractor. Respondent maintains two crews;
an excavation crew and a concrete crew. Mark Anderson, Respondent’s president and owner
supervises the excavation crew. Josh Carman began working on the concrete crew for
Respondent in April 2002. Beginning in May 2002, Herb Williams, foreman, supervised the
concrete crew consisting of Williams, Carman and two other employees. Anderson testified that
Carman was a good worker but had a poor attendance record.

In early September 2002, the concrete crew was working on a construction site at Truman
State University in Kirksville, Missouri. This was a “prevailing wage job.” Anthony Mihalevich,
business representative for the Union, visited the jobsite and spoke with the Respondent’s
employees. Upon learning that the employees did not belong to a union, Mihalevich passed out
business cards and asked the employees to call him. Several days later, Williams called
Mihalevich and they scheduled a meeting in a restaurant in Kirksville. Williams invited the three
other concrete crew employees to the meeting but only Carman was interested.

On September 16, Carman and Williams met with Mihalevich and discussed the possibility
of organizing the employees of Respondent. The following day, Carman spoke with the two other
employees and attempted to convince them to join the Union.

On Monday, September 23, Carman and Williams arrived at Respondent’s shop for
instructions to begin work. Carman testified that on September 23, while he and Williams were
drinking coffee, Anderson approached them and said that he had heard something that
disturbed him. Anderson said that he had heard that Carman and Williams were talking to Tony

1The credibility resolutions herein have been derived from a review of the entire testimonial
record and exhibits, with due regard for the logic of probability, the demeanor of the witnesses,
and the teachings of NLRB v. Walton Manufacturing Company, 369 U.S. 404, 408 (1962). As to
those witnesses testifying in contradiction to the findings herein, their testimony has been
discredited, either as having been in conflict with credited documentary or testimonial evidence, or
because it was in and of itself incredible and unworthy of belief.

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Mihalevich. Anderson declared that nobody was going to make him go union. He stated that it
was his company, and that he was firing Carman. He then said that he was demoting Williams.
Carman asked if Anderson was firing him for talking to the Union and Anderson answered “yes.”
Williams testified that Anderson approached Carman and Williams and said, “I need to speak
with you about rumors I have heard, that you were wanting to join the Union.” Anderson stated
that he would not have the Union in his shop. He added that it was his business, and that he
would run the business the way he wanted. Anderson then told Carman that he was fired and
told Williams that he was being replaced as concrete foreman. Williams asked where Anderson
had heard the rumors and Anderson answered that it didn’t matter. Anderson told Williams that
if Williams did not like it, he could quit. While Anderson denied these statements, I credit the
testimony of Carman and Williams over Anderson’s denials.

On September 25, Anderson prepared a letter to Carman dated September 23, 2002
entitled notice of termination. In the letter, never given to Carman, Anderson states that
Carman was terminated for the following reasons:

1. June 17-23 was given one week off without pay due to third time of not showing
up for work. There was no phone call or excuse given as to why.
2. Girlfriend constantly showing up at the jobsites in an unprofessional manner and
acting inappropriately, i.e., screaming at employees and the owner of the
company, squealing tires in [sic] her car, coming into a restricted hard hat area
and laying on the car horn while the owner of the company was on his cell phone
making a business call, and constantly questioning other employees of the
whereabouts of Josh when he is on the job or is not at work. It is not the policy of
this company to be an answering service. We need to have our phone lines
available for our customers first.
3. Recently, Josh walked off the jobsite at the Truman Paric job before the work
was complete without the Foreman’s permission.

Also on September 25, Anderson gave Williams a letter dated September 23, 2002,
listing the reasons for Williams’ demotion from foreman. The letter stated that Williams was
demoted because the work he supervised was not done in a timely fashion and was performed
inefficiently. The letter also alleged that Williams had been previously warned.

Anderson does not maintain records of employee discipline or attendance. In spite of
the fact that Anderson has hired and fired many employees, these letters are the only written
documents regarding personnel changes. The informal system used by Respondent consists of
“post-its” given by Anderson or Williams to Kathy Darling, office manager. Using post-its and
her memory, Darling could not confirm that Carman had been suspended the week of June 17-
23, 2002. Rather Darling’s records showed that Carman did not work that week but was paid
for ten hours. According to Darling, Carman was fired and paid severance pay but Anderson
relented and allowed Carman to return to work. Darling had no records to support the
allegations concerning Carman’s girlfriend but testified that the woman was constantly calling
her. According to Darling, Anderson would always give Carman a “second chance.” Darling’s
records showed that on the Truman jobsite, Respondent’s customer had claimed that the hours
for certain employees were overcharged. The responsibility for the alleged overcharging would
have properly been placed on Williams, the foreman. Further, the record shows that the
customer refused to pay for one hour charged to Carman. However, the customer also refused
to pay for one hour each for two other employees and three hours each for Williams and
another employee. There was a charge back for every employee who worked on that job during
the week in question.

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Mark Anderson testified that Carman and Williams were drinking beer on the morning of
September 20 and that he waited until September 23 to discharge Carman. Carman and Williams
did drink beer on the morning of September 20, however, the weather that day caused work to be
postponed. Further, neither the letter to Williams nor the letter to Carman mentioned the drinking.
Moreover, Anderson testified falsely that he had given the letters to the employees on September
23, when in fact, he gave the letter to Williams on September 25 and never gave a letter to
Carman.

Anderson admitted that Carman was a good worker but claimed that Carman was
discharged for poor attendance. According to Anderson, Carman was suspended for one week in
June 2002, due to his poor attendance. However, Anderson did not explain the payment made to
Carman for that week. Even assuming Carman was suspended for poor attendance, Carman had
no attendance problems between his suspension in June and his discharge in September.

Anderson further testified that Carman walked off the Truman State jobsite on
September 17. There is no credible evidence to support this allegation. As noted above, the
general contractor for the job reduced the number of hours on that job for all Respondent’s
employees. Carman’s hours were reduced by only one hour. This amount was not more than
any other employee and less than two other employees.

Anderson further testified that Carman’s girlfriend showed up at work and acted in an
unprofessional manner. The credible evidence establishes only that Carman’s girlfriend
frequently called Darling asking about Carman. However, that was not a recent occurrence but a
situation that had occurred throughout Carman’s employment. Anderson never spoke to Carman
or Williams about this conduct. Had this truly been a reason for discharge, Anderson would have
communicated with Carman, directly or through the foreman, about the problem.

B. Conclusions

The credible evidence establishes that Anderson told Carman that he was discharged
because the company was non-union and Carman had spoken with a union agent. I find this
statement tantamount to a confession that Respondent took punitive action against Carman for
engaging in union activities. Not only is such a statement evidence of hostility toward Carman
because of his protected activity, but it constituted an outright confession of Respondent's
intention to retaliate against Carman because he had supported the Union. American Petrofina
Company of Texas, 247 NLRB 183 (1980); See, e.g., NLRB, v. L.C. Ferguson and E.F. Von
Seggern d/b/a Shovel Supply Company, 257 F.2d 88, 92 (5th Cir. 1958), and NLRB v. John
Langenbacher Co., Inc., 398 F.2d 459, 463 (2d Cir. 1968), cert. denied 393 U.S. 1049 (1969).
"The Courts pay special attention to such statements against interest when in the unusual case
it occurs that a party admits that his conduct, otherwise ambiguous, is for improper purpose or
objective." Brown Transport Corp. v. NLRB, 334 F.2d 30, 38 (5th Cir. 1964). Such conduct
restrains and coerces employees in the exercise of the right to select a bargaining representative
of their own choice. See Winges Company, Inc., 263 NLRB 152 (1982): A & A Ornamental Iron,
Inc., 259 1019 (1982). See also San Souci Restaurant, 235 NLRB 604 (1978): Bell Burglar
Alarms, Inc., 245 990 (1979).

In Wright Line, A Division of Wright Line, Inc., 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989, the Board announced the following causation test in all
cases alleging violations of Section 8(a)(3) or violations of 8(a)(1) turning on employer motivation.
First, the General Counsel must make a prima facie showing sufficient to support the inference
that protected conduct was a "motivating factor" in the employer's decision. Upon such a

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showing, the burden shifts to the employer to demonstrate that the same action would have taken
place even in the absence of the protected conduct. The United States Supreme Court approved
and adopted the Board's Wright Line test in NLRB v. Transportation Corp., 462 U.S. 393, 399-403
(1983).

For the following reasons, I find that General Counsel has made a strong prima facie
showing that Respondent was motivated by unlawful considerations in discharging Carman.
Respondent condoned Carman’s attendance problems and poor work habits for at least five
months. However, shortly after Carman engaged in union activities with foreman Herb Williams,
Carman was discharged. At the time of the discharge, Carman was told that Anderson did not
want anything to do with the Union. In that context, Anderson told Carman and Williams that
Anderson no longer desired Carman’s services because Respondent was a non-union company.
Anderson admitted that he was firing Carman for speaking with a union agent.

The burden shifts to Respondent to establish that the same action would have taken place
in the absence of Carman’s union activities. Respondent has not met its burden under Wright
Line. Its assertion that Carman was not a good employee is not sufficient to overcome the prima
facie case. An employer cannot carry its Wright Line burden simply by showing that it had a
legitimate reason for the action, but must "persuade" that the action would have taken place even
absent the protected conduct "by a preponderance of the evidence." Centre Property
Management, 277 NLRB 1376 (1985); Roure Betrand Dupont, Inc., 271 NLRB 443 (1984)). In
other words, the mere presence of legitimate business reasons for disciplining or discharging an
employee does not automatically preclude the finding of discrimination. J.P. Stevens & Co. v.
NLRB, 638 F.2d 676, 681 (4th Cir. 1981). Beyond that, "when a respondent's stated motive for
its actions are found to be false, the circumstances may warrant an inference that the true
motive is an unlawful one that the respondent desires to conceal." Fluor Daniel, Inc., 304 NLRB
970, 970 (1991). See also Shattuck Denn Mining Co. v. NLRB, 362 F.2d 466, 470 (9th Cir.
1966). Here, while it has been shown that Carman had a poor attendance record, there has
been no credible evidence that his attendance record was the actual reason for the discharge.
Moreover, analysis of Anderson’s testimony shows that it cannot be relied upon to show any
legitimate reason for the termination of Carman. Where, as here, General Counsel makes out a
strong prima facie case under Wright Line, the burden on Respondent is substantial to overcome
a finding of discrimination. Eddyleon Chocolate Co., 301 NLRB 887, 890 (1991).

In the instant case, the evidence leads to a conclusion that, prior to discovering that
Williams and Carman had spoken with an agent of the Union, Anderson had condoned
Carman’s attendance and girlfriend problems and had continued the employment relationship
as though no misconduct had occurred. White Oak Coal Co., 295 NLRB 567, 570 (1989). See
also, Jones & McKnight, Inc. v. NLRB, 445 F.2d 97 (7th Cir. 1971). In sum, the General
Counsel has shown that the discharge of Carman on September 23, 2002, had been unlawfully
motivated. Respondent has failed to credibly show that the discharge had been for a legitimate
reason. Therefore, I find that Respondent’s discharge of Carman violated Section 8(a)(3) and
(1) of the Act. See Bronco Wine Co., 253 NLRB 53 (1981); Hunter Douglas, Inc., 277 NLRB 1179
(1985).

Conclusions of Law

1. Respondent is an employer engaged in commerce within the meaning of Section 2(2),
(6) and (7) of the Act.

2. The Union is a labor organization within the meaning of Section 2(5) of the Act.

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3. By threatening employees that they would be discharged for engaging in union
activities, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1)
of the Act.

4. By discharging Josh Carman because of his activities on behalf of the Union,
Respondent violated Section 8(a)(3) and (1) of the Act.

5. The above unfair labor practices are unfair labor practices affecting commerce within
the meaning of Section 2(6) and (7) of the Act.

The Remedy

Having found that Respondent engaged in unfair labor practices, I shall recommend that it
be ordered to cease and desist therefrom and that it take certain affirmative action to effectuate
the policies of the Act.

I shall recommend that Respondent offer Josh Carman full and immediate reinstatement
to the position he would have held, but for his unlawful discharge. Further, Respondent shall be
directed to make Carman whole for any and all loss of earnings and other rights, benefits and
privileges of employment he may have suffered by reason of Respondent's discrimination against
him, with interest. Backpay shall be computed in the manner set forth in F.W. Woolworth Co., 90
NLRB 289 (1950), with interest as provided in New Horizons for the Retarded, 283 NLRB 1173
(1987); See also, Florida Steel Corp., 231 NLRB 651 (1977) and Isis Plumbing Co., 139 NLRB
716 (1962).

Respondent shall also be required to expunge any and all references to its unlawful
discharge of Josh Carman from its files and notify Carman in writing that this has been done and
that the unlawful discharge will not be the basis for any adverse action against him in the future.
Sterling Sugars, Inc., 261 NLRB 472 (1982).

Upon the foregoing findings of fact and conclusions of law, and upon the entire record, and
pursuant to Section 10(c) of the Act, I hereby issue the following recommended:2

ORDER

Respondent, Anderson C & E, Inc., d/b/a Anderson Construction, its officers agents,
successors, and assigns, shall:

1. Cease and desist from:

(a) Discharging employees in order to discourage union activities.

(b) Threatening employees with discharge, or other retaliation for engaging in union
activities.

2 All motions inconsistent with this recommended order are hereby denied. In the event no
exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed waived for all purposes.

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(c) In any like or related 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) Within 14 days from the date of this Order, offer reinstatement to Josh Carman to
the position he would have held, but for his unlawful discharge.

(b) Make whole Josh Carman for any and all losses incurred as a result of
Respondent's unlawful discharge of him, with interest, as provided in the Section of this
Decision entitled "The Remedy".

(c) Within 14 days from the date of this Order, expunge from its files any and all
references to the discharge of Josh Carman and notify him in writing that this has been
done and that Respondent's discharge of him will not be used against him in any future
personnel actions.

(d) Preserve, and within 14 days of a request make available to the Board or its agents
for examination and copying, all payroll records, timecards, social security payment
records, personnel records and reports, and all other records necessary to determine
the amount of backpay due under the terms of this Order.

(e) Within 14 days after service by the Region, post at its Kirksville, Missouri, facilities
copies of the attached Notice marked "Appendix".3 Copies of the notice, on forms
provided by the Regional Director for Region 17, after being signed by Respondent's
authorized representative, shall be posted for 60 consecutive days in conspicuous
places, including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to ensure the notices are not altered,
defaced or covered by other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the attached notice to all current employees and former employees employed
by the Respondent at any time since September 23, 2002.

(f) Within 21 days after service by the Region, file with the Regional Director, a sworn
certification of a responsible official on a form provided by the Region attesting to
the steps Respondent has taken to comply.

Dated, San Francisco, California, April 9, 2003.

_____________________
Jay R. Pollack
Administrative Law Judge

3 If this Order is enforced by a Judgment of the United States Court of Appeals, the words in the
notice "POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall read
"POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS
ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD."
JD(SF)–25–03
Kirksville, Missouri
APPENDIX

NOTICE TO EMPLOYEES

Posted by Order of the
National Labor Relations Board
An Agency of the United States Government

The National Labor Relations Board has found that we violated Federal labor law and has ordered us to
post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities

WE WILL NOT discharge employees in order to discourage union activities.

WE WILL NOT threaten employees with discharge or other adverse action in order to discourage union
activities.

WE WILL NOT in any like or related manner interfere with, restrain or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the Act.

WE WILL offer reinstatement to Josh Carman to the position he would have held, but for his unlawful
discharge.

WE WILL make whole Josh Carman for any and all losses incurred as a result of our unlawful discharge of
him, with interest.

WE WILL expunge from our files any and all references to the discharge of Josh Carman and notify him in
writing that this has been done and that the fact of his discharge will not be used against him in any future
personnel actions.

Anderson C & E, Inc., d/b/a Anderson Construction
(Employer)

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
8600 Farley Street, Suite 100, Overland Park, KS 66212-4677
(913) 967-3000, Hours: 8:15 a.m. to 4:45 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (913) 967-3005.