Brandt-Airflex Corp.

National Labor Relations Board - Board Decisions

Feb 16, 1995

316 N.L.R.B. 315 (N.L.R.B. 1995)

315
316 NLRB No. 61
BRANDT-AIRFLEX CORP.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
Brandt-Airflex Corp. and Ronald S. Komorowski.
Case 22–CA–18655
February 16, 1995
DECISION AND ORDER
BY MEMBERS STEPHENS, COHEN, AND
TRUESDALE
On May 18, 1994, Administrative Law Judge James
F. Morton issued the attached decision. The Respond-
ent 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 and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt his recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Brandt-Airflex Corp.,
Readington Township, New Jersey, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order.
William E. Milks, Esq., for the General Counsel.
James R. Ratliff, Esq., for Brandt-Airflex Corp.
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge. The com-
plaint alleges in substance that Brandt-Airflex Corp. (the Re-
spondent) has engaged in unfair labor practices within the
meaning of Section 8(a)(1) and (3) of the National Labor Re-
lations Act (the Act) by having laid off eight employees on
August 21, 1992, and by having discharged Ronald
Komorowski on August 26, 1992, because of Komorowski’s
activities as steward for Local 11, International Association
of Bridge, Structural, and Ornamental Iron Workers, AFL–
CIO (Local 11). The Respondent contends that it laid off the
eight employees solely for business reasons and that it dis-
charged Komorowski for reasons unrelated to any of his
functions as Local 11’s steward.
I heard this case in Newark, New Jersey, on February 3,
1994. On the entire record, including my observation of the
demeanor of the witnesses, and after consideration of the
briefs filed by the General Counsel and the Respondent, I
make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
The Respondent is a contractor in the building and con-
struction industry. In its operations annually, it meets the
Board’s standard for asserting jurisdiction. Local 11 is a
labor organization as defined in Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
In 1992 (all dates hereafter are for 1992 unless stated oth-
erwise), the Respondent was doing iron, sheet metal, and
glazing work in various parts of a building being built for
Merck Pharmaceutical Company in Readington Township,
New Jersey. Half of those of its employees there who were
doing just the iron work were members of Local 11. The
other half were members of Local 36, an affiliate of the
same International with which Local 11 is affiliated. The Re-
spondent’s ironworker foreman at the Readington jobsite was
Kevin Markowski, a Local 11 member. Komorowski was the
Local 11 steward. The Respondent also had a project man-
ager there.
In March, the Respondent’s paychecks to the ironworkers
at that jobsite were not honored when presented for payment.
The Respondent also was delinquent in making contributions
to benefit funds due under its contract with Local 11.
Komorowski protested several times to the Respondent’s
project manager. The ironworkers, on one occasion in March,
engaged in a brief work stoppage. Several weeks later, the
Respondent’s president, Frederick Fogelman, came to the
jobsite. I credit Komorowski’s testimony as to his account of
his conversation with Fogelman that day. He told Fogelman
that the Respondent was behind in its payments to the Local
11 funds. Fogelman told him that he was mistaken because
that matter had been taken care of 3 weeks previously.
Komorowski replied that he was a liar because he,
Komorowski, had been informed by the Local 11 welfare of-
fice the previous day that the Respondent was 5 weeks in ar-
rears. Fogelman got red in the face and told Komorowski to
worry more about his job than about the benefit payments.
Later that same day, Fogelman talked to Kevin
Markowski, the ironworkers’ foreman. Fogelman was agi-
tated. He asked Markowski ‘‘who is this this guy to come
up to [me] and talk like this.’’ He told Markowski that he,
Markowski, should be the one bringing ‘‘a problem with
benefits or anything’’ to his attention. Markowski replied that
it was not his job to deal with benefits, that it was up to
Komorowski, as the Local 11 steward, to take care of that
matter.
Markowski testified credibly that Fogelman that same day,
and on several occasions afterwards, asked how would he go
about getting rid of this steward, Komorowski. Markowski
told him that the job was winding down and that it would
cause too many headaches to remove a steward. Fogelman
left without taking action then.
On August 21, the Respondent laid off Komorowski and
seven other ironworkers at the Readington jobsite. The only
ironworkers it left there then were its foremen, Markowski,
316 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 There are discrepancies between the names of the employees al-
leged in the complaint as having been laid off the same day with
Komorowski and the names on the Respondent’s payroll records of
the employees who were laid off on the same day that Komorowski
was laid off. In view of my finding as to the alleged unlawful layoff
on August 21, no material issue respecting these discrepancies exists
for resolution.
2 At the hearing, the General Counsel stated that, in any compli-
ance proceeding in this case, the General Counsel will argue that
Komorowski’s backpay would continue to accrue after mid-Septem-
ber based on the assertion that the contractor, who replaced the Re-
spondent, had hired all the Local 11 and Local 36 ironworkers who
were laid off by the Respondent in mid-September, when the Re-
spondent’s contract was terminated.
3 As found above, Fogelman had wanted to get rid of Komorowski
for having complained about the delinquencies as to fund contribu-
tions but took no action then in view of his foreman’s warning that
he would be creating a headache for himself by firing the Local 11
steward.
and a Local 11 member.1 On August 25, Markowski was
told by the Respondent’s project manager to have Local 11
send Larry McGrath and Mike Gorman back to the jobsite.
Local 11 sent Gorman but, instead of McGrath, it sent
Komorowski. Local 36 also sent back two ironworkers.
Komorowski worked on August 26. On the next day, the Re-
spondent’s president, Fogelman, came to the jobsite. When
he saw Komorowski there, he told Markowski to discharge
Komorowski and to have Local 11 send McGrath.
Komorowski was discharged that day. McGrath reported for
work on August 27. In mid-September, Merck removed the
Respondent as its iron work contractor. As a result, all the
ironworkers in the Respondent’s employ then were laid off.2
Fogelman testified that he made the decision to lay off
Komorowski on August 21, and also the decision not to re-
call Komorowski for work on August 26. Normally, the
project manager and the foreman make the decision as to
who is to be laid off or recalled. Fogelman’s testimony indi-
cates that the reason he made those decisions was that he
had, on his visits to the jobsite, observed Komorowski ‘‘basi-
cally walking around the job’’ and that, when he complained
of this to the foreman, Markowski, he was told ‘‘not to get
into that.’’ No steps were taken by Fogelman on or after
those visits to discipline Komorowski. Foreman Markowski’s
testimony was that he never had a problem with
Komorowski’s work. I do not credit Fogelman’s testimony
that he saw Komorowski slacking off. It is unlikely that he
would have tolerated nonfeasance by Komorowski when, as
the Respondent’s own exhibits indicated, Merck Pharma-
ceutical was putting pressure on the Respondent because the
Respondent was falling behind on its iron work contract.3
The credited evidence discloses that Komorowski vigor-
ously protested to Fogelman the Respondent’s benefit fund
delinquencies and that Fogelman harbored a deep resentment
against Komorowski therefor. The reason suggested by
Fogelman for his decision to discharge Komorowski on Au-
gust 22—that he had observed Komorowski on prior visits
doing nothing, instead of working—was an obvious pretext.
Fogelman, when he singled out Komorowski for discharge,
bypassed the normal procedure of leaving job-manning re-
quirements to the project manager and foreman. Those con-
siderations, taken together, satisfy me that the General Coun-
sel has made out a prima facie showing that the Respondent
discharged Komorowski on August 27 in reprisal for his ac-
tivities as steward on behalf of Local 11. Under Wright Line,
251 NLRB 1083 (1980), the Respondent had the burden of
proving that it would have discharged Komorowski on Au-
gust 27 regardless of his activities as union steward. No
credible evidence was presented by the Respondent in that
regard. Accordingly, I find that Komorowski was discharged
because of his activities on behalf of Local 11.
The General Counsel contends that the Respondent had
laid off virtually its whole complement of ironworkers on
August 21 in order to cover up its unlawful motive in laying
off Komorowski that day. The Respondent in substance as-
serts that it laid off eight ironworkers that day solely in reac-
tion to pressures being exerted by Merck Pharmaceutical on
the Respondent to get iron work done on time or to get off
the job. Minutes of meetings between representatives of
Merck and the Respondent show that Merck increasingly
wanted updates from the Respondent on the progress of its
work and that it was, more and more, concerned with the
delays encountered by the Respondent in having materials it
needed delivered to the jobsite on time. It was in this context
that the Respondent laid off virtually all of its ironworkers
on August 21. At Merck’s direction, it resumed work with
the number of its ironworkers reduced by half. In mid-Sep-
tember, Merck replaced the Respondent with another contrac-
tor to complete the ironwork.
The General Counsel asserts that a prima facie showing
has been made that the Respondent’s layoff of eight iron-
workers on August 21, and its failure to recall that number
were motivated by its animus towards Komorowski. The
General Counsel’s view is that the very brief period of the
layoff and a variance between the explanation given for the
layoff by Fogelman in his prehearing affidavit and the one
he gave while testifying warrant a finding that the layoff on
August 21 was effected to conceal Fogelman’s real reason,
i.e., his intent to be rid of Komorowski as Local 11’s stew-
ard. If that were his aim, Fogelman would hardly have wait-
ed so long to use such a device. As noted above, he had de-
ferred taking action against Komorowski earlier because of
the warning given him by Markowski. At best from the Gen-
eral Counsel’s standpoint, the evidence is equivocal. I find
that the General Counsel has not sustained the burden of
proving that the layoffs on August 21 were more likely at-
tributable to a discriminatory motive than, as the Respondent
contends, to an attempt on its part to respond to the pressures
being exerted on it by Merck to either bring in the materials
and employees needed to bring its job up-to-date or to leave.
Accordingly, I find no merit in the allegation in the com-
plaint that the Respondent unlawfully laid off employees on
August 21.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Local 11 is a labor organization as defined in Section
2(5) of the Act.
3. The Respondent has engaged in an unfair labor practice
within the meaning of Section 8(a)(1) and (3) of the Act by
having discharged its employee, Ronald Komorowski, on
August 27 because of his activities as steward on behalf of
Local 11 but the Respondent did not engage in an unfair
labor practice by its layoff of eight ironworkers on August
21.
317BRANDT-AIRFLEX CORP.
4 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
5 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘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.’’
4. The unfair labor practice found above affects commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in an un-
fair labor practice, I shall recommend that it be ordered to
cease and desist therefrom and that it take certain action to
effectuate the policies of the Act. The Respondent shall be
ordered to make Ronald Komorowski whole for any loss of
earnings and benefits he may have suffered as by reason of
the discrimination against him. Backpay is to be computed
in accordance with F. W. Woolworth Co., 90 NLRB 289
(1950), with interest to be provided as prescribed in New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Respondent, Brandt-Airflex Corp., Readington Town-
ship, New Jersey, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Discharging any employee for engaging in activities on
behalf of a labor organization.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make whole Ronald Komorowski for any loss of earn-
ings and benefits he may have suffered by reason of his hav-
ing been unlawfully discharged on August 27, 1982, with in-
terest thereon as set forth in the remedy section of this deci-
sion.
(b) Remove from its files all references to the discrimina-
tory discharge of Ronald Komorowski and notify him that
this has been done and that evidence of the discrimination
will not be used as a basis for any future action against him.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Mail to each of its ironworker employees who were
employed on the Merck project at Readington Township on
August 21, 1982, a copy of the attached notice marked ‘‘Ap-
pendix’’5 at their last known address, signed by an author-
ized representative and mail a signed copy to the office of
Local 11 for posting by it there if it so chooses.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the allegation that the Re-
spondent unlawfully laid off employees on August 21, 1992
is dismissed.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT discharge any employee for engaging in ac-
tivities on behalf of a labor organization.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them in Section 7 of the National Labor Relations
Act.
WE WILL make whole, with interest, Ronald Komorowski
for any loss of wages and benefits he suffered by reason of
our having unlawfully discharged him.
WE WILL notify Ronald Komorowski in writing that we
have removed from our files all references to his having been
unlawfully discharged and that WE WILL NOT use that dis-
charge against him in any way.
BRANDT-AIRFLEX CORP.