Grinnell Corp.

National Labor Relations Board - Board Decisions

Feb 8, 1996

320 N.L.R.B. 817 (N.L.R.B. 1996)

817
320 NLRB No. 66
GRINNELL 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.
1 General Counsel’s motion to correct the transcript, dated Novem-
ber 9, 1994, unopposed, is granted. Corrections agreed on by the
parties as reflected in Respondent’s response dated November 17,
1994, are approved.
2 Jurisdiction and the status of the Union as a labor organization
are admitted.
Grinnell Corporation and Jesse N. Harper. Case 4–
CA–22283
February 8, 1996
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On August 10, 1995, Administrative Law Judge
William F. Jacobs issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed cross-exceptions and an
answering brief in response to the Respondent’s excep-
tions. The Respondent also filed a reply brief and an
answering brief in response to the General Counsel’s
cross-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, cross-exceptions, and
briefs and has decided to affirm the judge’s rulings,
findings,1 and conclusions and to adopt the rec-
ommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative judge and or-
ders that the Respondent, Grinnell Corporation, Wil-
mington, Delaware, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
David Faye, Esq., for the General Counsel.
Thomas J. Bender Jr., Esq. (Saul, Ewing, Resnick & Saul),
of Philadelphia, Pennsylvania, for the Respondent.
DECISION
WILLIAM F. JACOBS, Administrative Law Judge. This case
was heard in Philadelphia, Pennsylvania, on September 21
and 22, 1994. The charge was filed by Jesse N. Harper, an
individual, on November 22, 1993, and amended on Decem-
ber 23, 1993. Complaint issued March 15, 1994, alleging that
Grinnell Corporation (Respondent, Employer, or Company)
violated Section 8(a)(1) and (3) of the National Labor Rela-
tions Act by laying off Jesse N. Harper on two occasions be-
cause of his union activities on behalf of the Road Sprinkler
Fitters Local Union No. 669, UA (the Union), and violated
Section 8(a)(1) by telling an employee that the employee
would not be recalled from layoff because the employee had
engaged in union activities, by threatening an employee with
discharge if the employee sought assistance from the Union
or filed grievances concerning his earlier layoffs, and by tell-
ing an employee that the employee would never work for
Respondent again if the employee ‘‘went’’ to the Board. Re-
spondent denies the commission of any unfair labor prac-
tices.
All parties were represented at the hearing and were af-
forded full opportunity to be heard and to present evidence
and argument. The General Counsel and Respondent filed
briefs. On the entire record,1 my observation of the demeanor
of the witnesses and after giving due consideration to the
briefs, I make the following
FINDINGS OF FACT2
Background
Respondent is a Delaware corporation which has at all rel-
evant times been engaged in the design, fabrication, and in-
stallation of fire protection systems and sprinkler piping. The
number of employees in its work force has, through the
years, fluctuated. Employees are laid off, recalled, and laid
off again depending on the work available. This is a problem
suffered throughout the industry. Respondent’s collective-bar-
gaining agreement with the Union permits it to hire and lay
off in accordance with its own estimation of the qualifica-
tions of the particular employees involved.
During the period of time relevant to this case, Harry
Dumas held the position of construction superintendent in the
Wilmington, Delaware district. As superintendent, Dumas
was in charge of all construction. That included estimating
the jobs, scheduling, providing for the delivery of tools and
materials to the jobsites, and staffing the jobs with crews. As
Dumas testified, he basically ran the jobs and told the em-
ployees on the jobs what to do.
The type of jobs managed by Dumas involved the installa-
tion of piping and sprinklers, both new construction and ret-
rofits. There were also some emergency service repairs and
corrections required. The different types of jobs required dif-
ferent skills. New construction required basically the installa-
tion of pipe in accordance with blueprints drawn to the speci-
fications designed by Respondent’s engineering department.
Emergency service and repair work had to be performed by
employees with a little more knowledge of sprinkler systems,
employees who knew how the various valves and pumps
worked and how to repair them.
Dumas chose how many employees would work on a par-
ticular job and who those employees would be. Thus, he
chose to hire, layoff, fire, and transfer employees depending
on the requirements of the jobs, the particular skills of em-
ployees available, and his knowledge of their past perform-
ances. Occasionally, Dumas would hire an applicant based
on the Union’s recommendation.
During the last few years, the relevant period here, the
work force consisted of a core of about 20 employees which
included working foremen, journeymen, and apprentices. An-
818 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Hereinafter, all dates are in 1992 unless indicated otherwise.
4 Schwander is an admitted supervisor and agent of Respondent as
defined in Sec. 2(11) and (13) of the Act.
other 10 were hired to supplement the 20 core employees on
an as-needed basis.
Jesse Harper—Employment History
Jesse Harper, the alleged discriminatee in the instant case,
was first hired as a journeyman sprinkler fitter by Respond-
ent in July 1981. He was laid off in November 1981 for lack
of work. He was hired a second time in May 1982 and laid
off in April 1983, again for lack of work.
Between 1983 and 1989, Harper worked for other compa-
nies or was on disability due to an accident. Although he
tried to get work with Respondent during this period, he was
unsuccessful. In 1989, however, Respondent needed addi-
tional employees. Dumas, on that occasion, called John
Garthe, business agent for the Union, and asked him if he
had any members out of work. Garthe mentioned Harper and
inasmuch as Dumas knew Harper and considered him one of
the irregular swing group that worked for Respondent on an
occasional basis, he agreed to hire him once again. From pre-
vious observation, Dumas had noted that Harper was a good
employee with a good attendance record so he put Harper to
work as of June 1989.
In February 1990, Harper was working for Respondent as
a foreman when Dumas advised him that there was a layoff
coming up. Since Harper and Dumas were in disagreement
about certain jobs, at the time, Harper told Dumas to put him
at the top of the layoff list and he would take a voluntary
layoff. Dumas agreed and Harper quickly found employment
elsewhere.
In May 1992, Harper was out of work. Despite his earlier
differences with Dumas, he decided once again to seek em-
ployment with Respondent. There were no other jobs avail-
able and Harper preferred to work for Respondent because
it was close to his home. He applied and was hired once
again.
Throughout his employment history with Respondent,
Harper was a member of the Union which represented Re-
spondent’s rank-and-file employees. As an employee he was
considered a good one. He was conscientious, did what he
was told to do, never missed a day’s work, and was always
on time.
The Organization of Stong, Inc. Employees
In late October 1992,3 Respondent had a project at the Du-
Pont Hotel in Wilmington installing sprinkler systems. At the
same time, Joseph Stong, Inc. also had projects in progress
at the same site. Stong did various types of contracting in-
cluding sprinkler installation and was therefore a competitor
of Respondent.
About this time, certain of Stong’s employees became dis-
satisfied with working conditions as they existed under their
nonunion employer. Their concerns involved wage rates and
the failure of Stong to grant increases during the previous 2
years and to pay promised bonuses. As a result of their dis-
satisfaction, some of Stong’s employees sought out union
members employed by other contractors working at the site,
in order to inquire about union membership. These included
employees of Respondent as well as other union contractors.
Perhaps the first contact made by Stong employees oc-
curred when Graig Bourgeois and Matthew Gravey ap-
proached Harper during lunch hour at the DuPont Hotel
worksite and advised him that they were interested in orga-
nizing Stong’s employees. They asked him how to go about
it and whom to contact. They asked him about collective bar-
gaining, how it works and what benefits could be derived
from it. They provided Harper with their names and phone
numbers and he promised to have a union representative con-
tact them.
Harper was later approached by other Stong employees
and asked about the Union but he refused to talk to them on
working time. Rather, he directed them to meet him at lunch-
time out at the mall or during breaktime.
In addition to Harper, Bourgeois and Garvey also spoke
with Chris Walker, another of Respondent’s employees.
When they told him that they were interested in joining the
Union, Walker encouraged them by explaining to them the
benefits of unionization and suggested that they sign author-
ization cards. He did not supply cards to them, however.
Meanwhile, there were other contacts between the two
groups of employees. Stong employee Patrick MacCrory
spoke to each of Respondent’s employees both on the day
shift and the night shift about the benefits of joining the
Union. He talked with Respondent employees Harry Gravell,
Dave Walls, Wally Greer, Jesse Harper, and others. He
talked to Harper extensively because Harper was experi-
enced, had been involved in an organizing campaign years
before while employed by another employer, and MacCrory
did not fully understand the procedure to follow. Somewhat
later, MacCrory talked with Harry Gravell, mostly about
scheduling meetings and about who was who in the Union.
But since Gravell was not steadily employed at the DuPont
Hotel jobsite, MacCrory initially could talk with him only
occasionally when he was visiting the site or just driving by.
When MacCrory talked to Walls and Greer, it was again
about benefits and they both encouraged him to join the
Union.
After his initial contact with Bourgeois and Garvey, Harp-
er contacted John Garthe, a business agent with the Union.
He told Garthe that certain Stong employees, in their sprin-
kler division, were interested in organizing. He supplied
Garthe with the names and telephone numbers of Bourgeois
and Garvey. Garthe told Harper that organizing Stong’s em-
ployees was a good idea and that he should contact Marvin
Martin, the Union’s organizer, about their interest.
Harper also spoke with Harry Gravell about the same time,
one afternoon after work, at the jobsite. Gravell, in addition
to being a foreman for Respondent, was also a tutor proctor
for the Union. Harper told Gravell about Bourgeois and Gar-
vey and their interest in the Union, and supplied him with
their phone numbers. He asked Gravell if he thought organiz-
ing Stong was a good idea and Gravell agreed that it was.
Gravell told Harper that he would follow up on the matter
and talk to him later.
After talking with Garthe and Gravell, still in October,
Harper visited Respondent’s office to pick up his paycheck.
There, he happened to meet Gravell again. Dumas and Jim
Schwander,4 contract sales and office manager, were also
there. Schwander was Dumas’ immediate supervisor. Harper
mentioned to the others that Stong employees had come to
819GRINNELL CORP.
5 On this point, I credit Walls over Dumas.
6 Dumas testified that he did not attend the December 7 meeting,
but I credit Harper and Martin.
7 Dumas specifically denied that this conversation ever took place.
His denial is not credited.
him and advised him that they were interested in organizing
and in joining the Union. He told them that he had discussed
these contacts with Garthe and that he thought it was a good
idea. Schwander, Dumas, and Gravell all agreed that since
Stong was a nonunion competitor of Respondent and, as
such, was hurting Respondent’s business, it would be a good
idea to get that company organized. Schwander and Dumas
both gave their blessings and said that it would be all right
to pursue the organizational efforts at Stong. Gravell said
that he would contact Marvin Martin and John Garthe in pur-
suance of the decision to organize Stong but could not per-
sonally get further involved because of his other duties.
Toward the end of October, Bourgeois contacted Gravell
and a union organizing meeting was scheduled for November
3. Gravell ran the meeting. He explained to those present
what was involved in a union organizing campaign and what
they would have to do. The Stong employees asked ques-
tions, after which they decided that they were all in favor of
joining the Union. Gravell then stated that he would be turn-
ing over the organizing campaign to Marvin Martin whose
job it was to organize.
After the first union meeting, over the next few days,
those Stong employees who had attended, MacCrory, Gar-
vey, Bourgeois, Michael Mills, and Steven Mecouch con-
tacted fellow employees of Stong by phone to invite them to
a second union meeting scheduled by Gravell for November
9. At the same time, Grinnell employees continued to con-
verse with various Stong employees concerning union mem-
bership and benefits. Harper continued to ‘‘talk up’’ the
Union but so did other employees of Respondent to the same
extent.
At the November 9 meeting, Martin had building trade or-
ganizers and representatives from five locals attend including
those from plumber and pipefitter locals in the Delaware
Valley. They helped conduct the meeting. Gravell was there
but did not address the Stong employees. Harper and other
employees of Respondent attended as well as about 25 Stong
employees.
At the meeting, Martin enlisted the support of the Grinnell
employees in the Unions’ organizing drive at Stong, Inc. He
asked them to talk to the Stong employees about their union
pension and their union health and welfare plans and to show
them their check stubs. They were expected to continue their
support throughout the entire campaign which was to con-
tinue through the following January.
The third union meeting was held on November 16. Bour-
geois attended that meeting and signed a union authorization
card while there. He also attended additional union meetings
and testified with regard to them that Gravell attended a cou-
ple of them and may have spoken at some of them. Neither
Harper nor any of Respondent’s other employees attended
any of these later union organizational meetings, according
to Bourgeois.
Throughout the end of November and December, both Re-
spondent and Stong continued to employ workers at the Du-
Pont worksite. Jesse Harper was the only Grinnell regular
employee, however. Wally Greer and David Walls were also
there, Greer for only a relatively short period of time. Other
employees worked there on an as-needed basis.
In accordance with Respondent’s plan and Marvin Mar-
tin’s request, these employees were expected to continue to
talk to the Stong employees about the benefits of union
membership. According to Dumas, Harper, Greer, and Walls
all told him that they were continuing to talk to Stong em-
ployees in support of the organizing campaign. However,
Walls testified that neither he nor Greer was so engaged.5
On December 7, the Union held a meeting at the Hilton
Hotel in Wilmington, Delaware. This meeting was attended
by about 50 people. Marvin Martin ran the meeting and ad-
dressed those present. As part of the program, Martin dis-
cussed how the membership could help the Union organize
contractors.
After the meeting, Harper approached Martin and asked
him if the Building Trades were involved in organizing
Stong. Harper, in his organizing efforts, had been concentrat-
ing on Stong’s sprinkler fitters and not the other trades. Mar-
tin informed him that now, the Building Trades were in-
volved in the union organizing campaign and the game plan
had changed. He said that his organizing committee at Stong
had told him that the Building Trades could organize all of
Stong’s craft divisions if they could just convince one key
employee of Stong to join in the effort. He identified that
key employee as Jeff Bowersox, Stong’s lead plumber. He
told Harper that he would appreciate it if Harper would ap-
proach Bowersox, show him his pay stub, talk to him about
his pension plan and insurance, and encourage him to get in-
volved in the organizing effort.
Harper, in reply, suggested that Martin get the plumbing
organizer to talk to Bowersox because he, Harper, was not
in favor of the broader organizing effort and because he was
afraid of losing his job. He explained to Martin that he had
been told that Bowersox was antiunion and warned that he
should stay away from him.
Despite Harper’s protestations, Martin insisted that Harper
speak to Bowersox and use his personal influence to obtain
his cooperation. He tried to assure Harper that he would not
lose his job. Finally, Harper agreed to talk to Bowersox pro-
vided it was all right with Dumas.
According to both Martin and Harper, Dumas was present
at the December 7 union meeting and Martin testified that
Dumas was supportive.6 After Harper agreed to talk to
Bowersox, if Dumas said it was all right, he went over to
Dumas and brought him back to join in his conversation with
Martin. He then told Martin that he wanted him to clear with
Dumas, his plan to have Harper contact Bowersox and enlist
him in the organizing campaign. Martin did so, and Dumas
agreed that it would be all right for Harper to talk with
Bowersox for the purpose of organizing Stong. Harper asked
Dumas specifically if he was going to lose his job if he
talked to Bowersox and Dumas assured him that he would
not.7
Sometime after the December 7 meeting, Harper began
speaking to Bowersox at the DuPont Hotel jobsite in Wil-
mington. They had several conversations, over a period of
time extending into late December, during which Harper de-
scribed the benefits of belonging to a union and tried to con-
vince Bowersox to join. He told Bowersox that it would be
a good idea if Stong went union. Bowersox told Harper that
he was not interested, that he was better off the way he was,
820 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Where discrepancies appear in the record as to the times, places,
and style of Harper’s campaigning, I credit his and Bowersox’s testi-
mony over that of Forshey. I do not believe Forshey’s account of
what Bowersox told him about his discussions with Harper.
9 Stepchuck denied that anyone mentioned Harper’s name during
his telephone conversation on this occasion. He testified that he
could not recall talking to Forshey. Where the testimony of
Stepchuck and Forshey are in conflict, I credit Forshey.
as a nonunion employee. Harper testified that he only spoke
to Bowersox during lunch hours, never during working time.
Bowersox testified that he never felt harassed by Harper and
never was upset or angry with him for discussing unioniza-
tion of Stong. Harper was the only Grinnell employee to dis-
cuss the Union with Bowersox.
After several of Harper’s union conversations with
Bowersox, probably in late December, the latter repeated
some of Harper’s remarks to several of Stong’s other em-
ployees including to Bubba Forshey, supervisor of the sprin-
kler fitters who had the title of fire protection field super-
intendent. Bowersox told Forshey that there was a pipefitter
down at the DuPont job that was telling him how great the
Union was and how great it would be if all of Stong’s em-
ployees went Union. According to Forshey, Bowersox told
him that the employee he was talking about had been bother-
ing him about organizing and going Union; that he had been
talking about the Union all the time, on the job, during work-
ing hours, frequently in the material storage area shared by
the employees of both Respondent and Stong; and that he
had been harassing him constantly.8 Forshey asked Bowersox
who the employee was that he was talking about but
Bowersox could only identify him by his first name, Jesse.
Forshey then commented that it was not allowed on the Du-
Pont site to talk, pro or con, about unions and then added
that he would take care of it.
The day after Forshey obtained the information about
Harper’s organizing activity from Bowersox, he spoke with
Duke Yankalunas, Stong’s project manager on the DuPont
job. He told Yankalunas that Respondent’s employees had
been talking to Stong’s employees and trying to organize
them. Yankalunas informed Forshey that he would make a
phone call and would ‘‘get this thing squared away.’’
Yankalunas, at this point, called Jack Stepchuck, contract
administrator for DuPont, at the project. He told Stepchuck
that Stong was having a problem at the hotel jobsite with
certain of its employees who were trying to organize and that
one of Respondent’s mechanics had contacted them with re-
gard to their possibly joining the Union. He said that there
had to be a resolution of the problem, then let Forshey talk
to Stepchuck. Forshey then told Stepchuck that somebody by
the name of Jesse9 had been ‘‘confronting’’ one of his men
on the jobsite. Stepchuck promised ‘‘to take care’’ of the
problem, that he would call Respondent and talk to Dumas.
Stepchuck testified, in replying to a number of leading
questions, that Yankalunas indicated that the conversations
between Respondent’s organizing employees and the Stong
employees were going on during working hours and that this
fact was his main concern because it disrupted the workday.
Stepchuck testified that 5 minutes after his discussion with
Yankalunas, he phoned Dumas. He told Dumas that
Yankalunas had called and complained that one of the
Grinnell employees was interfering with Stong employees’
ability to do their work by constantly talking to them and
bothering them about joining the Union. He advised Dumas
that Stong was somewhat upset about it, and urged, ‘‘We
need to get the situation corrected.’’ Both Stepchuck and
Dumas testified that the Grinnell employee involved was not
mentioned by name. Stepchuck did not volunteer the name
and Dumas did not ask for it. Dumas testified that he had
no reason to believe that any specific employee was involved
and that Stepchuck did not say that he wanted anyone re-
moved from the job. Stepchuck also testified that he did not
ask Dumas to have any individual Grinnell employee re-
moved from the DuPont worksite. Despite the testimony that
no names were mentioned, Dumas promised Stepchuck that
he would take care of the problem right away. Though
Dumas admittedly promised Stepchuck, ‘‘I’ll take care of
it,’’ he nevertheless denied that he ever removed anyone
from that job as a result of this conversation with Stepchuck.
Dumas testified that as a result of his conversation with
Stepchuck, he talked to the individuals who were on the Du-
Pont job, Greer, Harper, and Walls. He told them that they
had a job to do for Grinnell, to concentrate on performing
their duties during working hours and not to spend time
away from that job. According to Dumas he told them that
if they wanted to do something on their own time, during
their lunch period, breaktimes, or after work, he had no prob-
lem with that, but that during working hours, he expected
them to be working for Respondent and not talking with ev-
eryone else.
Stepchuck was not the only member of DuPont manage-
ment with whom Dumas spoke concerning the campaign to
organize Stong’s employees. Within a week of that conversa-
tion, Dumas had a discussion with Bob Frawnapple,
DuPont’s contact with Grinnell’s employees at the jobsite.
Frawnapple asked Dumas what he knew about Respondent’s
trying to organize Stong. Dumas denied that Grinnell was
trying to organize Stong. He told Frawnapple that the cam-
paign was initiated by Stong’s own employees who wanted
representation from the building trades. According to Dumas,
he denied that Respondent had anything to do with the orga-
nizing effort and did not mention that its employees were in-
volved. Dumas also testified that Frawnapple did not com-
plain about any particular one of Grinnell’s employees’ in-
volvement. Frawnapple did not testify.
Meanwhile, about this time, at the jobsite, Frawnapple also
became engaged in conversation with David Walls, one of
Respondent’s foremen on the job. Frawnapple, according to
Walls, told him that Respondent’s employees were to stay in
their own work areas. He explained that a few problems had
arisen involving Jesse Harper and he wanted to make sure
that the problems were taken care of. He said that he did not
want Harper talking with Stong’s other trades, trying to
unionize them and that if Respondent’s employees were
going to work in specific areas, Walls should notify him in
advance and set it up with him.
After his discussion with Frawnapple, Walls told Harper to
stay in his work area and not to be going out and talking
to the other trades and holding them up.
Harry Gravell testified that in late December he had a con-
versation with Dumas during which Dumas told him that
representatives of Stong had lodged a complaint with DuPont
that Grinnell employees were trying to organize Stong’s em-
ployees and that Stong wanted the person responsible for the
organizing campaign, Jesse Harper, removed from the job
821GRINNELL CORP.
10 Hereinafter, all dates are in 1993 unless indicated otherwise.
11 Walls coordinated the job for Respondent. He attended job
meetings and assigned tasks to fitters and apprentices. These assign-
ments were taken as orders. I find that Walls was the supervisor on
this job, as defined by the Act.
and that DuPont was making the same request of Grinnell.
Dumas then informed Gravell that he was going to transfer
Harper.
Gravell also testified that, prior to this conversation with
Dumas, he had reluctantly been involved in the organizing
of Stong employees. He explained that he would receive
phone calls from Stong employees concerning the organizing
campaign and he met with them on at least three occasions,
twice at different hotels and once at Pipe Fitter’s Local 420
union hall in Philadelphia. Since Gravell only visited the Du-
Pont project occasionally, he did not speak with them much,
if at all, while on the job, but did talk to them at breaktime
and after work.
When examined concerning his late December conversa-
tion with Gravell about the forthcoming transfer of Harper,
Dumas testified that he could not recall such a conversation.
He explained that, at any rate, he would not have told
Gravell that DuPont or Stong had complained about Jesse
Harper, because he had not known which employees they
had complained about. He testified that the complaint had
been vague and general and that he never did find out which
of the Grinnell employees had been the subject of the com-
plaint. He testified that if he had known, at the time, that it
was Harper who had been talking to Stong employees, dur-
ing working time, and disrupting the work schedule, Harper
would have been reprimanded and removed from the job.
On the morning of January 4, 1993,10 Walls, as foreman
in charge,11 called a meeting with Wally Greer, who was
there for just that day, and Jesse Harper. He told them that
he had a message from Dumas that there was to be no talk-
ing to Stong employees on the job, on companytime. Greer,
also a foreman, though not in charge of the job in progress,
repeated Walls’ words, apparently for Harper’s benefit. Harp-
er agreed not to talk with Stong employees. At the end of
the brief meeting, Walls and Greer invited Harper to join
them for lunch, scheduled as per usual, at the 9:30 a.m.
break. The three then separated and went to their work-
stations.
Later that morning, Harper was working by himself on the
fifth floor of the building when, about 9:30 a.m., Greer came
to get him to go to lunch. They were walking together to get
coffee for lunch and conversing when Greer advised Harper
that if he continued to engage in union activity, he could lose
his job. Harper replied that he was not in there organizing
by himself, that Dumas, Garthe, and Martin all knew what
was going on.
Before actually going to lunch that morning, Walls, Greer,
and Harper went to the change room, also considered Stong’s
shop room or supply room. Pat MacCrory, one of Stong’s
foremen, was in the room when they entered. He was upset.
Harper asked him what the problem was. MacCrory replied
that he was upset about his men getting laid off due to being
involved in union organizing activities. Harper told Mac-
Crory to calm down, that he would see to it that they got
legal assistance. He advised MacCrory to get his men down
to the Labor Board. MacCrory answered that he did not want
to hear about it.
According to Walls, he did not hear much of the discus-
sion between MacCrory and Harper and did not report on it
to Dumas. Walls testified that he did not report on any of
the union campaign to Dumas.
After lunch, Harper called home to check on an appoint-
ment and was informed that his daughter had been rushed to
the hospital. He left the jobsite immediately after obtaining
permission from Walls, and did not return for the rest of the
day.
On the afternoon of January 4, Dumas advised Walls that
he was transferring Harper to another job. Walls testified that
he assumed that Harper was being transferred because
Dumas needed him on another job and the DuPont job was
at the stage that one man, working a day here and a day
there, could finish the job himself, so that Harper could be
spared. The job was essentially caught up.
Dumas testified that he did, in fact, transfer Harper from
the DuPont job on January 4 because the actual amount of
work was decreasing on that job. The job was winding down
and the need for manpower was not enough to keep three
men working. For that reason, Dumas decided to send Harp-
er to another job the following week.
According to Dumas, he had already decided to transfer
Harper to another job, rather than lay him off, before he
called Walls to let him know that he was taking Harper off
the DuPont job. Since Greer was scheduled to leave the Du-
Pont job on January 4 along with Harper, that would leave
just Walls to both run the job and to do what work there was
left to do.
Dumas testified that the way manual labor was being di-
vided on the DuPont job, at the time that he removed Harper,
was to have each man, including Walls, perform an equal
amount. Since the job was at a point where one man could
keep up with the rest of the installation, leaving Walls as the
only man on the job was considered the most economic way
of handling the situation.
During his examination, Dumas was questioned as to
whether he would have removed Harper from the DuPont job
because of his helping to organize the Stong employees.
Dumas denied that he would have done so because, as he ex-
plained, it was to Respondent’s benefit to have Stong orga-
nized. If Stong were organized, ‘‘it would have put the labor
costs at an even keel and made both companies more com-
petitive with each other.’’ Dumas specifically denied remov-
ing Harper from the DuPont job because of his organizing
activities.
Dumas was also briefly examined with regard to the con-
versation between Harper and MacCrory which had taken
place during the lunchbreak on January 4. Dumas referred to
this incident as the ‘‘blowout.’’ He admitted that news of the
blowout had gotten back to his office and that there was
some kind of problem. He could not recall whether it was
Walls or Greer who told him about it, but both had been
present during the incident. Dumas said that he investigated
the matter, found no evidence of anything, and essentially
took no action.
On the afternoon of January 4, Dumas testified, he called
Harper at the jobsite to discuss with him the blowout and to
let him know about his transfer. However, Harper had al-
ready left because of the emergency involving his daughter
so Dumas called him at home that evening.
822 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 Where the testimony of Dumas concerning the content of this
conversation differs from that of Harper, it is not credited.
13 A settlement agreement in the Stong case contains a nonadmis-
sions clause.
14 Mecouch’s layoff was followed on December 14, 1992, by an
alleged unlawful discharge.
According to the credited testimony of Harper,12 when he
received Dumas’ call, Dumas told him that he had spoken
with Walls and Greer and had heard from them that Harper
had had a big blowout with a Stong employee in violation
of his ‘‘no-talking’’ order and he was removing Harper from
the DuPont jobsite. Harper did not consider his discussion
with MacCrory earlier that day to be a blowout, and tried to
tell Dumas so. Dumas, however, would not listen. Harper
then asked Dumas if his removal from the DuPont job meant
that he was being laid off. Dumas replied that Harper was
not going to be laid off but would be transferred to the
Raychem job in Pencader Industrial Park in Delaware.
On January 5, Harper reported to Raychem. MacCrory,
back at the DuPont jobsite, first thing in the morning, asked
Walls where Harper was. Walls replied that Stong had called
DuPont and DuPont had Harper removed, apparently mean-
ing through Respondent.
On January 6, Dumas visited the Raychem jobsite and en-
gaged Harper in conversation. He advised Harper that he was
being laid off for lack of work. Harper told Dumas that he
believed that he was being laid off because of his union ac-
tivity and the hiring of his replacement, Steve Mecouch.
Dumas denied Harper’s accusation. Dumas testified that lack
of work was the true reason for Harper’s layoff and that his
union activity had nothing to do with it.
As of January 6, Respondent employed two employees on
the Raychem job, Harper and his foreman, George Snyder.
When Harper was laid off on that date, Synder remained the
only employee. I find that Harper’s layoff from Raychem le-
gitimate and not unlawfully motivated.
After his layoff on January 6, Harper called Garthe and
told him that he had been laid off and had been singled out
for layoff because of his attempts to organize the Stong com-
pany and perhaps because of the blowout or confrontation
with MacCrory on January 4 which he blamed on Walls’ and
Greer’s reporting to Dumas. During this conversation, or an-
other one in January after his layoff, Harper spoke with
Garthe, and later with Martin, about Mecouch being hired by
Respondent. He asked them why they were bringing new
men into the Union at a time when there was so much unem-
ployment. Garthe explained that they were trying to help out
the Stong employees who had been laid off or discharged as
a result of the organizing campaign. Harper told Garthe that
he disagreed with this procedure.
During this discussion with Garthe, Harper stated that he
was considering filing a grievance over his layoff. Garthe,
however, attempted to dissuade him from doing so on
grounds that there were not enough facts to support the filing
of a grievance against Respondent. He offered, however, to
speak with Dumas to see if he could remedy Harper’s prob-
lem and get him recalled. This he eventually did. He also
promised to talk to Dumas about his agreement with Martin
to hire laid-off and discharged employees of Stong.
Following the transfer of Harper out of the DuPont
project, Stepchuck called Yankalunas to ask him if the situa-
tion that they had talked about initially had been corrected
there. Yankalunas replied that the situation had been cor-
rected, that the mechanic (Harper), was no longer working in
the facility. Stepchuck testified that he made his followup
call ‘‘roughly two days after the incident occurred.’’
Despite the testimony of Dumas and Walls that there was
only enough work left at the DuPont jobsite to keep one man
busy, Harper was immediately replaced by Gravell. Gravell
worked there for the next 3 or 4 days along with Walls.
Gravell had heard that Harper had been removed from the
jobsite because he had been talking union to Stong employ-
ees, so he decided to avoid any similar conduct which might
result in his own removal. He understood that DuPont was
a big customer of Respondent and he did not want to do any-
thing that would interfere with their good relationship. Nev-
ertheless, Gravell continued his organizing efforts, though
not during working hours, and these efforts were known to
Dumas and probably to Stong’s supervisors, according to
Gravell. He testified that he received no complaints about his
union activities and, in fact, Dumas was still supportive of
the effort because it would have been financially beneficial
to Respondent to have Stong organized.
Two days after Harper’s layoff, three other employees
were laid off by Respondent, two journeymen and an appren-
tice journeyman. One of the journeymen was recalled shortly
after his layoff. None of these three employees were laid off
for any reason other than lack of work.
Following the initiation of the Union’s campaign to orga-
nize Stong, a number of Stong’s employees were laid off
and/or discharged, allegedly13 because of their union activity.
Marvin Martin requested Dumas to hire some of the former
Stong employees to support the organizing effort. John
Garthe made the same request. As a result, Respondent hired,
among others, one Steven Mecouch on December 8, 1992,
following his alleged unlawful layoff on November 20,
1992.14 Mecouch was hired as an apprentice to help Charles
Walls out, to lend credibility to the Union, and to help bene-
fit Respondent financially by permitting Mecouch to work
for Respondent at the lower wage of apprentice. Dumas testi-
fied that both apprentices and journeymen do similar work.
They both assist the foreman install pipe in the usual two-
man crew used by Respondent. He stated that it is more ad-
vantageous to use an apprentice rather than a journeyman to
assist a foreman because the difference between their abili-
ties is minimal while the apprentice works at a lower wage
rate than a journeyman.
Following his layoff, Harper talked with Martin about the
Mecouch issue. He asked Martin why he was bringing new
men into the Union at a time when there was so much unem-
ployment. Martin explained that he had to help out the men
who got hurt in the organizing campaign at Stong. Harper
believed that Mecouch had been hired about the same time
he was laid off although not to work either at the hotel or
at Raychem. Since Dumas admitted that it was possible that
Mecouch was hired around January 4, 1993, it may be that
Mecouch was hired on December 8, as he testified else-
where, then laid off, then rehired. However, the record is un-
clear as to these dates. In any case, Harper maintains that
Mecouch should not have been working while he was in lay-
off status.
823GRINNELL CORP.
15 Harper’s testimony concerning this conversation is credited.
16 Dumas’ denial is not credited.
17 There is no explanation in the record why Duncan was chosen
over Harper for recall.
18 See Harper’s weekly planner.
Dumas recalled Harper to work on February 22. According
to Harper, he had a conversation with Dumas at 7:30 a.m.
when he reported to the shop office. He testified that Dumas
was upset at his attempting to organize Stong and chastised
him for it. Harper reminded Dumas that his position was
contrary to his earlier position. Dumas stated that he knew
Stong and he did not care how he treated his employees, that
it was none of Respondent’s business. Harper replied that
John Garthe and the Union did not feel that way about it.
Dumas then said that he did not want to hear another word
about it and Harper promised not to engage in any more
union activity since it had already cost him his job.15
Dumas testified that he called Harper and other employees
back to work on February 22 because Respondent experi-
enced an upswing in the workload and more manpower was
needed. He denied that Garthe had asked him to recall Harp-
er and also denied that the conversation described by Harper
took place that morning.16 Indeed, Dumas stated that, at the
time, he was still anxious for Stong to be organized and was
in favor of the effort.
The organizational campaign at Stong continued through-
out February. Martin filed a petition for an election on
March 12.
On April 5, the Regional Director approved a Stipulated
Election Agreement providing for a representational election
at Stong to take place on May 13. The petitioning unions lost
the election but filed objections on May 20. Thus, the cam-
paign to organize Stong continued. Harper, however, was no
longer involved. His notes do not indicate that he did any
more work at the DuPont Hotel. Nor do they reflect whether
or not he worked at any locations where Stong employees
were also employed.
According to Harper, on May 7 he was working with
Greer at the West Company jobsite at Lionville, Pennsyl-
vania. Greer advised him on that date that there was going
to be a layoff but that he was safe because Respondent had
to keep the politicians happy. Harper interpreted Greer’s re-
marks as referring to the internal union elections which were
going on at the time and in particular to John Garthe, who
was running for business agent. Harper testified that Garthe
had been instrumental in getting him his job back and, at the
time of the conversation with Greer, he was engaged in cam-
paigning on behalf of Garthe. He further interpreted Greer’s
remarks as inferring that he would not be laid off with the
other employees because of his political connection to
Garthe. That day, Respondent laid off two employees, both
journeymen, then on May 14 laid off six more, five journey-
men and one apprentice while Harper was retained. Neither
Garthe nor Greer testified with regard to this issue. Dumas
testified that although he was aware that an internal union
election was ongoing at the time, no one asked him to keep
Harper on the job because of it, neither Martin nor Garthe.
On June 8, Respondent laid off three employees for lack
of work, two journeymen and Harper. A few days before the
actual layoff, another company, Magic Fire Protection, some-
how heard of the forthcoming layoff and asked Dumas for
the names of the employees who were going to be laid off.
Dumas told the caller that all of the men were pretty good
guys and provided the names of Phil and Ralph Leonard,
Duncan, and Harper. Ralph Leonard had been laid off on
May 14. The representative of Magic asked Dumas to have
the two Leonards call whenever they were laid off, because
there was a job available for them and they could ride to-
gether. The caller did not seem to be interested in Harper.
Originally, Dumas told the three laid-off employees to take
only 3 days off, the rest of the week, and to report in on
Monday, June 14, at the shop for reassignment. He explained
that the job had been bid so tightly that he could not afford
to keep the men on the job. Despite Dumas’ explanation,
Harper still felt that he was being singled out for layoff be-
cause of his union activity.
On June 14, Duncan, Phil Leonard, and Harper reported
to the shop but the few big jobs that Dumas had expected
to break did not, and there was no work. Dumas told the
three that he was going to let them go, that there was no
work, and to report to the shop the following week. He told
Leonard to call Magic Fire Protection for employment. He
subsequently did so, and was hired.
According to Harper, he asked Dumas if he would contact
Respondent’s Columbia, Maryland office on his behalf but
Dumas declined to do so. Dumas could not recall Harper
marking this request but stated that he had no connections
at the Columbia office anyway, that Gravell would have been
the one to make such a call.
After the layoff of June 14, Harper went to Garthe and
asked to file a grievance based on his layoff for engaging in
union activity. Garthe told Harper that he would talk with
Dumas, that he would like another chance at clearing the sit-
uation up, so Harper did not file the grievance. When Garthe
called Dumas, he was told that Harper’s layoff had nothing
to do with his organizing at Stong’s, that there had been a
reduction in force, and that other employees had been laid
off as well as Harper. Garthe was satisfied with Dumas’ ex-
planation.
After the June 14 notice that the June 8 layoffs were to
be extended, Harper called Dumas once or twice each week,
thereafter. He called about every Monday throughout the
summer and appeared personally at the shop the first three
or four Mondays after the layoff seeking employment, but
each time was advised to check back. Although Harper told
Dumas that he was having financial problems and needed a
job, he was not offered employment. Harper also searched
elsewhere for employment and checked with the unemploy-
ment office without success.
Meanwhile, at Respondent’s shop, George Snyder, a fore-
man who had been initially laid off on June 11, was sent on
June 15 to Respondent’s office in Avenel, New Jersey. Sny-
der had been chosen for layoff rather than someone else be-
cause he had made known his intention to start his own busi-
ness and Dumas decided to save the slot for someone who
intended to stay with the Company. Toward the end of the
month, Duncan was recalled.17
On July 19 and again on July 22, Harper called Garthe18
to seek his help in getting recalled and most likely to further
discuss, once again, the possibility of filing a grievance. As
a result of these calls Garthe again called Dumas and suc-
824 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
19 Harper’s weekly planner notes that he spoke to Dumas on Au-
gust 16 about his union activity.
20 Harper’s version of this conversation is credited, Dumas’ denials
are not.
21 Contacts with the Union are noted on these dates in Harper’s
planner.
22 The description of the content of this conversation is a compos-
ite of the testimony of both Garthe and Dumas. Where there is a
conflict, Garthe’s testimony is credited over that of Dumas.
23 Dumas denied that Garthe or anyone else had requested him to
recall Harper. However, this was obviously the ultimate purpose of
the call.
24 Dumas’ testimony that Garthe’s reference to a grievance came
‘‘pretty much out of the clear blue’’ is not credited. Although the
record discusses only one telephone call, it is more likely that there
were two, the first during which Garthe obtained Dumas’ version of
the history of Harper’s problem, the second to advise him that there
would be no grievance forthcoming.
ceeded, at least he thought, in getting Dumas’ agreement to
recall Harper.
On July 29, Harper attended a union meeting in Frederick,
Maryland, where he spoke to Garthe and Martin about his
problems with Respondent. They told him that they had spo-
ken with Dumas about his problems and he should go to the
shop.
Throughout the summer, according to Dumas, there were
rumors flying that Harper was claiming that he had been laid
off because of his union activities and that lawsuits, National
Labor Relations Board (NLRB) litigation, and grievances
were about to be filed. While these rumors were floating,
Harper was still calling periodically to ask about employ-
ment. Several times during the summer, Dumas confronted
Harper about the rumors, asking him if, in fact, there was
some kind of litigation pending and, if so, what form it
would take. Each time Harper would deny that there was any
truth to the rumors that litigation was contemplated. He did
admit to Dumas, however, that he felt that he had been re-
moved from his job because of his union activities and com-
plained that Mecouch had his job.
Despite Dumas’ testimony that he heard about Harper’s in-
tention of filing a grievance only through rumor, it is clear
that he also heard about it directly from Garthe when Garthe
called him about recalling Harper to work. For reasons al-
ready stated, neither Dumas nor the Union welcome a griev-
ance at this time.
On August 2, Harper visited the shop, as instructed on
July 29 by Garthe and Martin, but Dumas was not there.
Harper was under the impression that his problems had been
resolved and that he was supposed to talk to Dumas about
employment again. While Harper waited for Dumas at the
shop, Dumas called in and spoke with Gravell to dispatch
work through him. When Harper asked Gravell if he could
speak to Dumas on the phone, Gravell said that Dumas did
not have time for him then, to check back later.
Harper’s weekly planner contains notes indicating probable
additional contacts with Garthe on August 2, 9, and 14 and
Dumas on August 9. There is, however, no testimony con-
cerning these contacts.
At 7 a.m. on August 16, Harper met and had a conversa-
tion with Dumas in front of the shop.19 According to Harp-
er’s credited testimony, he asked Dumas if he had a job for
him and pointedly asked him how Mecouch, his ‘‘replace-
ment apprentice’’ was making out. Dumas replied that
Mecouch was doing a fine job. The two next talked about
the union organizing campaign at Stong’s and Dumas offered
an opinion that organizing was outdated and ineffective,
comparing it with a Sherman tank chasing a stealth bomber.
Harper testified that Dumas then said that he ‘‘was an exam-
ple of how you can lose that good paying union job for par-
ticipating in union activity.’’ About helping Harper get a job,
Harper testified that Dumas said, ‘‘The horse was out of the
barn’’; that there was nothing he could do to help Harper at
that time. Dumas told Harper to check back. According to
Harper, Dumas did not explain what he meant by the expres-
sion, ‘‘the horse was out of the barn’’ and he did not ask.
He did feel, however, that Dumas meant that he was not
going to hire Harper back and that he would have to look
elsewhere for work.
With regard to the August 16 conversation between Harper
and himself, Dumas testified that he never told Harper that
he ‘‘was an example of how you could lose a good-paying
union job by participating in union activity’’ and never said
anything like ‘‘the horse is out of the barn’’ which he denied
was one of his expressions.20
After his August 16 conversation with Dumas, probably on
August 23 and 24,21 Harper apparently met with or called
Garthe and reported its content to him. Evidently he again
suggested that he should file a grievance but Garthe once
more talked him out of it. Garthe said he would, once again,
talk to Dumas on Harper’s behalf.
Meanwhile, Harper concluded that Garthe was proving in-
effective in getting him recalled and decided to seek addi-
tional help from someone higher up in the Union. The name
of John Lundak Jr., business manager for the Union, appears
for the first time in Harper’s weekly planner on August 20.
On August 31, the planner notes that he called Lundak and
had a meeting scheduled for 1 p.m., September 2, but that
Lundak did not make an appearance.
Harper’s weekly planner for dates, September 6, 7, and 8
contains the initials ‘‘B.A.,’’ presumably standing for busi-
ness agent, meaning Garthe. I find these entries to mean that
Harper had contacts on these dates with Garthe concerning
his recall.
In early September, about the time of these calls, Garthe
contacted Dumas once again22 to see if he could get Harper
recalled.23 He told Dumas that Harper was upset because he
had been laid off and not recalled and believed that he had
been singled out because of his organizational activity among
Stong employees. Dumas denied Harper’s accusation and
stated that Harper’s organizational activity at Stong had noth-
ing to do with the situation. He reviewed for Garthe, the in-
cident that had occurred back in January at the DuPont Hotel
and insisted that Harper’s June layoff was simply the result
of a reduction in force. He said that Harper would be re-
called when work picked up.
Following the early September conversation between
Garthe and Dumas, Garthe reported back to Harper what
Dumas had told him. He convinced Harper temporarily to
wait and not to file a grievance, then called Dumas during
the second week in September to tell him that the ‘‘grievance
business’’ was all settled and that the Union would not be
grieving Harper’s layoff on his behalf.24 Harper’s notation in
825GRINNELL CORP.
25 See the entry of that date in Harper’s planner.
26 See Harper’s planner, September 28.
27 Ibid. September 29.
28 Harper’s planner note, dated October 5, indicates that he had
seen and had said hello to Dumas on that date.
his planner for Thursday, September 9, ‘‘Next to be sent
out’’ supports the testimony of the witnesses.
From Harper’s planner, it would appear that he made fur-
ther calls to Garthe on September 13 and to Respondent on
September 14. Nevertheless, he remained in layoff status
through September 19.
Harper’s entry for September 20 indicates apparent con-
tacts with Martin, Lundak, and Garthe but does not explain
whether these individuals were contacted individually on that
date, met together, or participated in a conference call. A
contact of some sort with Respondent was also noted that
day. Harper had another contact with Garthe the following
day. None of these contacts were the subject of testimony.
Despite the lack of testimony concerning Harper’s contacts
with the various union officials and with the Respondent on
September 20 and 21, from previous and subsequent events,
it would appear that these contacts concerned the following:
1. Harper’s desire for reemployment with Respond-
ent.
2. Respondent’s failure to recall him following
Garthe’s most recent promise that it would do so.
3. Harper’s decision, in the absence of recall, to pur-
sue the matter at a higher level and perhaps file a griev-
ance based on his removal from the DuPont Hotel job
and his suspected replacement by Mecouch.
4. Garthe’s belief that Harper did not have enough
evidence to prove his allegation, and Harper’s agree-
ment to try to obtain the additional necessary evidence
to support his grievance.
On September 24, Harper met with and obtained from Pat-
rick MacCrory, a sworn and notarized statement concerning
Harper’s ‘‘Discharge for participation in Collective Bargain-
ing.’’ This document was clearly obtained to support Harp-
er’s allegations and any grievance which Harper might even-
tually file. That evening Harper spoke with Garthe25 and pre-
sumably told him about getting the sworn statement from
MacCrory and about the letter of complaint which he in-
tended to send to Lundak.
On Sunday, September 26, Harper composed a five-page
letter to John Lundak. In it, he accused the Union and Re-
spondent of failing to act in good faith on his behalf, ‘‘con-
trary to the contract, constitution, by-laws and [his own] well
being.’’ He reviewed the entire history of his problems with
Respondent, his layoff based on his union activity, the inef-
fective efforts of the Union to have him recalled on a perma-
nent basis, his objections to the offering of union member-
ship to Mecouch and other former Stong employees, and the
hiring of them by Respondent while he and other employees
of Respondent remained unemployed. Harper later attached
to his letter to Lundak, sworn statements signed by
MacCrory supporting his reasons for believing he had been
laid off the previous January because of his union organizing
at Stong.
On Monday, September 27, according to Harper’s weekly
planner notes for that day, he called Martin and told him
about the letter of complaint he was sending to Lundak.
On September 28, again according to his notes, he called
Lundak, apparently to advise him to expect his letter of com-
plaint. Failing to reach Lundak, Harper evidently requested
Lundak’s secretary to let him know when his letter was re-
ceived. He also made calls to MacCrory and Philip Leonard,
possibly to obtain more support for his case.
Probably as a result of one of his calls of the last few
days, most likely the one to MacCrory, or perhaps as a result
of a belated thought of his own, Harper determined to obtain
a second statement from MacCrory. Later that day, Septem-
ber 28, he met with MacCrory and obtained from him a
sworn statement entitled, ‘‘Secondary reason for discharge
from DuPont site.’’ This statement absolved him completely
from any fault regarding the blowout incident. Still later, on
September 28, Harper attached the two MacCrory affidavits
and possibly additional documents to his letter of complaint
and mailed them that date to Lundak.26
On September 29 at 10 a.m., Lundak’s office confirmed
to Harper that his letter had been received.27 He was told
that Lundak was not in and would not be back until the fol-
lowing day. In any case, Lundak did not immediately reply
to Harper, but chose to fully investigate the matter before
doing so. This would take almost a month.
Toward the beginning of October, Dumas testified, busi-
ness began, once again, to pick up, as it traditionally did at
that time of year. Dumas determined to increase the crew
size in response. Moreover, the Respondent was in the proc-
ess of moving its offices from Wilmington to New Castle,
Delaware, and Dumas felt that he could use some extra
hands. He contacted and recalled a number of employees
who had been laid off the previous spring, including Harper
who was called on October 1 and told to report to the shop
October 4 for a job at the Morgan Bank in Stanton, Dela-
ware.
Although Dumas denied that the Union had requested
Harper’s recall, Harper assumed that his recall was the direct
result of the letter he had written to Lundak. He admitted,
however, that when he was called on October 1, to report on
October 4, the individual who contacted him, Eddie Osienski,
did not mention anything about the Union intervening on his
behalf. Although Garthe eventually told Harper that he had
informed Dumas about Harper’s letter to Lundak, I do not
believe Dumas knew about it as of October 1. He was prob-
ably told about it on or shortly after October 4.
On October 4, after reporting to the shop, Harper was sent
to the jobsite at the Morgan Bank. According to the notes
in his planner, he was on that job with Dave Walls, Pat
Coen, and Doug Conoway. These notes indicate that Harper
spoke to Walls about his problems with Respondent and that
Walls told him that he ‘‘would like to help but the men are
scared.’’ Clearly, Harper was not satisfied with reemploy-
ment alone. He fully intended to pursue restitution for his
earlier layoffs.
According to Dumas, within a few days of Harper’s recall
on October 4,28 he and Harper had occasion to engage in
what Dumas described as a fence-mending conversation.
Dumas explained that inasmuch as he had heard the various
rumors about Harper possibly bringing a lawsuit against him
or Respondent, he wanted to assure Harper that there was no
‘‘bad blood’’ between them. According to Dumas, he told
826 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
29 The record treats Dumas’ and Harper’s descriptions of their con-
versations with each other as widely differing versions of a single
conversation. I find, however, as noted in the text, that they were
describing two separate conversations which probably occurred al-
most a month apart.
30 Dumas testified that Harper made no such assertion concerning
his September 26 letter.
31 Dumas denied making any statement to the effect that Harper
had been recalled because certain employees had requested his re-
call.
32 Dumas denied making this statement. Rather, he testified, he
made a similar sounding statement in a harmless aside, after the two
had shaken hands and that Harper had quoted the remark completely
out of context.
33 Dumas denied making this statement.
34 Debber Electric, 313 NLRB 1094 (1994).
Harper that he thought they should start with a clean sheet
of paper at that point, and try to have a good working rela-
tionship between them, and that Harper agreed. The con-
versation ended with a handshake. I believe that by this time,
Dumas had been told by Garthe about Harper’s letter to
Lundak.
From October 5–27, Harper continued to work at the Mor-
gan Bank worksite without incident. On October 28, how-
ever, he was transferred to the shop where he worked di-
rectly for Dumas, sorting material.
On October 28, Lundak finally replied to Harper’s letter
of September 26. In it, he advised Harper that he had looked
into his situation, found that he was gainfully employed by
Respondent at the time, and that the facts, as presented by
Harper to the Union, did not warrant further action by the
Union. Lundak added that if Harper felt that his June layoff
had been because of his union activity, he could file and pur-
sue an unfair labor practice charge against the Respondent
with the NLRB. On its surface, Lundak’s October 28 letter
would tend to indicate that Harper’s recall was independent
of any action on the part of the Union at Lundak’s level.
However, it is just as likely that Respondent and the Union
determined together that offering Harper reemployment was
the best way of circumventing Harper’s filing of a grievance
which might prove embarrassing to both the Respondent and
the Union.
Harper credibly testified that he had a conversation with
Dumas following his October 4 recall. He placed this con-
versation as occurring on November 1, while they were both
working together moving the shop. Inasmuch as Harper kept
a weekly planner or diary in which he entered the names of
his foremen each day plus other notes, and this planner indi-
cates that he worked at the Morgan Bank from October 4–
27 with other foremen and did not work with Dumas at the
shop until the period October 28 through November 3, I find
the planner supports his testimony. Moreover, there is the
entry for November 1: ‘‘Spoke to Harry about problem.’’
Based on Harper’s testimony and written entries, I find that
the conversation he described occurred on November 1 as he
testified and that the one described by Dumas occurred, as
noted, on October 5.29 It is not clear from the record, how-
ever, whether or not Harper had received Lundak’s October
28 reply to his September 26 complaint by November 1, but
from subsequent events, it appears as though he had not. Ac-
cording to Harper’s version of their November 1 conversa-
tion, which I credit over that of Dumas where there are dis-
crepancies, he spoke to Dumas about the events that occurred
the previous January, his removal from the DuPont Hotel
job, his previous layoff, the complaint he had written to
Lundak on September 26, and how they could remedy his
problem. He told Dumas that he believed that his recall was
due to his filing the September 26 complaint with Lundak.
According to Harper, Dumas denied this30 and stated that the
recall was due rather to some of Respondent’s employees
who had requested Harper’s recall.31 When Harper asked
Dumas for the names of these employees, Dumas refused to
supply them.
Harper testified that Dumas then said that Harper had a
clean slate, that he would have a fresh start but if he pursued
reparations over this issue and continued causing problems in
Dumas’ ‘‘Grinnell world,’’ they would ‘‘be rolling in the
streets.’’32 He added that he did not want to hear any more
complaining either about organizing or about Harper’s lay-
offs.33 According to Harper, throughout the conversation,
Dumas denied that Harper had been pulled out of the hotel
the previous January due to his union activity and warned
him, ‘‘Don’t push it.’’ Contrary to Harper’s testimony on
this subject, Dumas denied that the subject of Harper’s union
activities or layoffs ever came up during the conversation.
Following their November 1 discussion, Harper continued
to work with Dumas through November 3. He worked for
Dave Walls at Concord Mall on November 4 and 5. On No-
vember 8–12 he worked for George Carter either in Bridge-
ton, New Jersey, or at Concord Mall.
George Carter had worked for Respondent for several
years up through November 1993 at which time he was clas-
sified as a foreman. Although at times he had three or four
employees working for him, usually he was assisted by just
one. As foreman, his job responsibilities included overseeing
the job and making sure it was done. He represented his
Company at job meetings. He was paid $1.50 per hour more
than the employees assigned to him but received the higher
wage even when working alone. He had authority to grant
overtime if the job required it and to assign specific tasks.
Carter could grant permission to an employee to leave the
job and go home early. He could also recommend job appli-
cants for hire. He worked directly for Dumas and later for
Greer, when Greer took Dumas’ place after the latter’s pro-
motion. He frequently transmitted orders or information from
his superiors to those employees working for him. Fre-
quently, he would be called by his superiors and told to
transfer journeymen or apprentices from one location to an-
other. On completion of a job, Carter would send his assist-
ant back to the shop. Despite his authority, Carter was a
union member, covered by the contract. Despite Carter’s
membership in the Union, I find that Carter was a supervisor
within the meaning of Section 2(11) of the Act and an agent
of the Respondent within the meaning of Section 2(13) of the
Act as of November 8.34
On the morning of November 8, before Carter left for his
first day of work with Harper in New Jersey, he and Dumas
had a conversation in the parking lot of the shop in Wilming-
ton. Carter, a personal friend of Harper’s, had heard that
there was a problem between Dumas and Harper and he de-
cided to straighten it out ‘‘before it got out of hand.’’ The
problem, as Carter understood it at the time, concerned Re-
spondent’s management telling Harper to go onto the DuPont
827GRINNELL CORP.
35 The Wayman case was an unemployment compensation case in-
volving that employer and the layoff of Harper, Carter, and its other
employees.
36 It was stipulated that Greer was, at all relevant times, a super-
visor and an agent of Respondent within the meaning of the Act and
I so find.
job at the hotel back in late 1992 and January 1993 and or-
ganize Stong’s employees, then when he did so, Respondent,
at the request of the Union, replaced Harper, a journeyman,
with Steve Mecouch, an apprentice, laid off by Stong be-
cause of his union activity.
The conversation began when Carter asked Dumas what
his problem was with Harper. Dumas, according to Carter,
mentioned something about Harper’s involvement in union
activities on the DuPont job. He stated that he knew that
Harper had once filed a lawsuit against a previous employer
of his, Wayman Fire Protection,35 and if he brought a lawsuit
against Grinnell Fire Protection, he ‘‘would never, no longer
work’’ for Respondent. He explained further that he had
heard that Harper was going to bring charges against
Grinnell because Mecouch had been hired in his place but
that if he did so, he would no longer work for Grinnell, ever.
He directed Carter to tell Harper this.
Dumas admitted to having a conversation with Carter on
or about November 8 at the shop during which Carter asked
Dumas what was going on between him and Harper. Carter
reported that Harper felt as though he ‘‘was being screwed
around’’ by Dumas and Grinnell and that Dumas did not like
him. Dumas testified that he told Carter that that was not the
case, that he and Harper had had a conversation a week or
two earlier and everything seemed fine.
At that point, according to Dumas, Carter said that Harper
was running around threatening some kind of lawsuit. Dumas
asked rhetorically what Harper had to gain by a lawsuit since
he was then working for Respondent and everything that
Harper felt was wrong between them had been cleared up.
Dumas denied saying to Carter during this conversation, or
at any other time, that if Harper brought a lawsuit against
Grinnell, he would never work for Grinnell again. Where
Carter’s version of this conversation differs from that of
Dumas, I credit Carter.
Later that day, while in the truck, on the way to their job
in New Jersey, Harper told Carter about his November 1
conversation with Dumas wherein Dumas had told him that
his slate had been wiped clean and he had a fresh start. He
asked Carter if he should take Dumas’ word for it or con-
sider the option that his business manager had recommended,
i.e., going to the NLRB. At this point, Carter told Harper
what Dumas had instructed him to tell him, namely, that if
he brought charges against the Company, he would never
work for Grinnell again. When told this, Harper appeared to
Carter to be upset, but did not state whether or not he in-
tended to bring a lawsuit.
On Friday, November 12, Carter told Harper to report to
the shop. When he arrived at the shop about 3:30 p.m.,
Dumas advised him that he was being laid off for lack of
work. Also being laid off were George Snyder, a foreman
who was intending to go into business for himself; Bob
Bradley, a journeyman whose name does not appear on pre-
vious employee lists and who probably was a new employee;
William Preston, a journeyman, also probably a new em-
ployee, laid off November 5; and Steven Mecouch, the ap-
prentice whose hiring was so objectionable to Harper.
Dumas testified that the layoffs of November 1993 were
once again the result of a lack of available work which tradi-
tionally occurs around Thanksgiving time following the an-
nual increase each October. The number of core employees
retained was 19, a number comparable to the number of re-
tentions during previous layoffs.
When Dumas advised Harper of his layoff on November
12, a brief conversation ensued. Dumas told Harper that the
reason he was being laid off was lack of work and there was
nothing he could do about it. Harper said that if that was the
reason, it was fine and he did not mind, but he should not
be laid off for engaging in union activities.
Dumas then flashed Mecouch’s check in front of Harper,
indicating that he too had been laid off. Harper told Dumas
that he too had been laid off. Harper told Dumas that he did
not have to pacify him and repeated that he did not mind
being laid off due to lack of work but did mind being laid
off due to his participation in union activity. Dumas again
assured Harper that union activity was not the reason for his
layoff.
As of November 12, Dumas was aware that he had been
promoted, was leaving, and that he was being replaced as su-
perintendent. He testified that toward the end of his con-
versation with Harper, he told him that there were going to
be some changes made at Grinnell and that if Harper wanted,
he would put in a good word for him with the new super-
intendent. He also offered to supply him with a reference if
he intended to apply for work with other companies. Harper
denied that Dumas made any such offers.
Where Dumas’ version of his November 12 conversation
with Harper is contrary to that of Harper, I credit Dumas. I
believe that Dumas tried to placate Harper and to convince
him that his layoff was due to a lack of work. It was in
Dumas’ and Respondent’s own self-interest to convince
Harper that his layoff was economically motivated in order
to keep him from filing a grievance with the Union or
charges with the Board. For this reason, he would offer as-
surances to Harper and show him that Mecouch and others
had also been laid off. As of November 12, Harper had not
taken any action against Respondent and did not immediately
do so on his being laid off. Thus, it would appear that Harp-
er was satisfied, at least for the time being, that his Novem-
ber 12 layoff was not unlawfully motivated.
On November 16, Dumas was promoted and moved to
Philadelphia and Greer became superintendent in his place.
Thereafter, Greer became responsible for the personnel deci-
sions which had previously been the responsibility of Dumas.
Several days after succeeding Dumas as superintendent,
Greer36 had a conversation with Harry Gravell. He told
Gravell that in his opinion Harper had gotten ‘‘screwed’’ and
he wanted to hire him back. He asked Gravell if he was
going to the union meeting which had been scheduled for the
Thursday evening after Thanksgiving and, if so, to tell Harp-
er that Greer wanted to rehire him.
On November 22, Harper filed his charge against Re-
spondent alleging that the Respondent had laid him off on
June 9 because of his union activities. He had named James
Schwander in the charge as the employer representative and
828 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
37 The examining attorney mistakenly supplied the date, November
29 as the day that this incident occurred. I find, however, that it oc-
curred on November 30 or later because Schwander did not receive
a copy of the charge until the mail was delivered on November 29.
38 Spelled McCooch on the grievance form.
39 More specifically, Harper argued that the agreement to hire
Stong’s employees did not fit the established apprentice/journeyman
ratio and the rule that Respondent could not hire an apprentice to
replace a journeyman.
40 Hereinafter, all dates are in 1994 unless otherwise noted.
Schwander finally received a copy of the charge on Novem-
ber 29.
On receiving a copy of the charge, Schwander testified, he
immediately called his superior, the district general manager,
Jim Pozzi, who instructed him to fax a copy of the charge
to himself and to send the original, Federal Express, to the
legal department in New Hampshire. Thereafter, according to
Schwander, the matter was out of his hands.
George Carter testified that one morning37 about 7 a.m. he
was waiting to speak to Greer before going out on the road.
He was standing just outside of Greer’s office when
Schwander and Greer arrived together and entered Greer’s
office. They had a roll of blueprints and were discussing a
job. While Carter continued to wait outside, he could par-
tially overhear the conversation going on between them. Ac-
cording to Carter, he heard Schwander in a loud voice, with
a harsh tone, state that Jesse Harper would ‘‘no longer, ever
work there.’’ Carter testified that he could not hear what the
conversation was about before Schwander ‘‘blew up’’ and
started yelling about Jesse Harper but that it had something
to do with a job that was going on at the time. Carter said
that he could not hear what Greer was saying.
With regard to the conversation between Schwander and
Greer overheard by Carter, Schwander testified that he could
not recall talking to Greer about the charge, that after receiv-
ing the charge and forwarding it as instructed, it became a
corporate matter and was out of his hands. He specifically
denied making the statement attributed to him by Carter, that
Jesse Harper would never work at Grinnell again. He said
that he could not recall yelling during a conversation with
Greer about Harper. Greer did not testify.
With regard to this conversation between Schwander and
Greer, overheard by Carter, I credit Carter. I find that Greer
was attempting to rehire Harper but that Schwander refused
to permit him to do so because Harper had filed the charge
on November 22.
Carter testified that Greer came out to the jobsite on the
afternoon of the day that Schwander made the statement that
Harper would never work for Grinnell again. He asked Greer
why Schwander had been upset that morning. Greer ex-
plained that Schwander was really ‘‘pissed off’’ because he
had been served with papers concerning a suit filed by Harp-
er, referring, of course, to the charge he had filed November
22. Greer, himself, appeared upset as well, and explained the
history of Harper’s union activity on the DuPont job, acting
at the behest of Grinnell and the Union, and Harper’s re-
moval from that job and the role he, Walls, and others, had
played while employed on that job. Greer was concerned, ac-
cording to Carter, that his involvement might result in his
getting sued himself.
Sometime after their first conversation about rehiring
Harper, and after Harper filed the charge, Gravell met and
had a second conversation with Greer. Gravell told Greer
that he had seen Harper at the union meeting, told him that
Greer wanted him to come back, and that Harper had accept-
ed Greer’s offer. He told Greer that Harper would call him
about coming back to work for Respondent.
On hearing from Gravell that Harper intended to return to
work for Respondent, Greer informed Gravell that he was
not allowed to rehire Harper and that Harper would never
work for Grinnell again. He identified Schwander as having
made this decision but did not state that it was because Harp-
er had filed charges.
Following Respondent’s refusal to reemploy Harper, Harp-
er went forward with arrangements with the Board to have
his charge processed. On December 6, he also filed with
Lundak a grievance against Respondent based on his January
6 layoff at Raychem, his June 8 layoff from Grinnell, and
his termination on November 12. He noted on the grievance
form that these layoffs and final termination were the result
of his participation in union activity. He also attached a
three-page letter to his grievance describing the history of his
problems with Respondent. The settlement he desired was
‘‘full pay for lost time due to being replaced by apprentice
Steve Mecouch’’38 and ‘‘Gainful employee [sic] for Grinnell
without reprisals.’’ The theory of Harper’s grievance was
that the agreement between Respondent and the Union to
hire Stong’s laid-off employees at the expense of Respond-
ent’s union employees was illegal,39 particularly the hiring
and retaining of Mecouch at Harper’s expense.
On December 23, Harper filed an amended charge which
added the November 12 permanent layoff to the allegation
contained in the earlier charge.
Schwander testified that in January or February 199440 he
had a conversation with Greer wherein Greer suggested that
Respondent bring Harper back to work, if it would help the
charge go away. Schwander told Greer that he did not think
that would be a good idea because it would lead to further
problems. He felt that he could not justify putting Harper to
work when Respondent did not have the work, hoping there-
by to have the charge go away. According to Schwander,
Greer was in charge of the construction forces in the field
and it was his decision to rehire or not to rehire Harper. Al-
though Schwander testified that he felt that to hire Harper
back, just to make the charge go away, when there was no
work, would not be correct and to do so would make it ap-
pear as though Respondent were trying to pacify Harper, he
testified further, that Greer, nevertheless, could have done so
if he wanted to reemploy Harper.
Despite Schwander’s testimony that he would have loved
to bring Harper back but for the fact that ‘‘we didn’t have
the work,’’ elsewhere he testified that Respondent ‘‘may
have had to have called people back.’’ This would probably
have been after March 15 when the complaint issued and
also after April 13, when the Union went on strike and Re-
spondent offered employment to and hired striker replace-
ments. Gravell also testified that Respondent hired a few
people between November 1993 and April 1994 and also re-
hired Mecouch although the record does not mention a date.
Harper confirmed that Mecouch had been recalled by Re-
spondent but he, himself, had not. He testified that since his
permanent layoff from Respondent, he had been seeking em-
ployment but had not been successful until about 3 weeks
829GRINNELL CORP.
before the hearing when he was hired by Security Fire Pro-
tection.
The record indicates that Respondent hired Randy Steve,
a sprinkler fitter, in early December and offered Brian
Gravell, Harry Gravell’s brother, employment which he re-
fused. After April 13, Respondent hired a large number of
replacements but made no offer to Harper. It is clear that
there was work available for Harper and that lack of work
was not the reason for Respondent’s failure to offer him re-
employment.
Conclusions
The record is clear that Harper was active among
Grinnell’s employees in their campaign to organize Stong. It
is also clear that he was more active than some Grinnell em-
ployees and less active than others. Grinnell’s management,
however, was initially in favor of this activity and took no
action to interfere in its employees’ participation.
When Harper’s organizing activity came to the attention of
Stong’s management, then to DuPont’s management and Du-
Pont complained to Dumas about this activity, Dumas be-
came concerned at the possibility of Respondent’s losing Du-
Pont as a customer. The denials of Dumas and some other
management personnel of Stong and DuPont notwithstanding,
I find that Harper was identified to Dumas as the Grinnell
employee who had spoken to Bowersox and he, in turn,
thereafter admitted this fact to Gravell. Indeed, it is clear that
Bowersox identified ‘‘Jesse’’ as the Grinnell union activist to
Forshey and he stated he ‘‘would take care of it.’’ Then
Forshey reported the problem to Yankalunas, and he prom-
ised to make a phone call and ‘‘get this thing squared
away.’’ Then Forshey named Jesse to Stepchuck who prom-
ised ‘‘to take care’’ of the problem by calling Dumas. Then
Stepchuck called Dumas about the problem. It is absurd, in
my opinion, to believe that, knowing the identity of the
‘‘troublemaker’’ to be ‘‘Jesse,’’ Stepchuck did not pass it on
to Dumas. It is ridiculous to believe that every member of
the Stong and DuPont management teams, who was involved
with the problem, including Stepchuck, promised to take care
of the problem, and knew the problem was Jesse Harper, yet
Stepchuck failed to identify Harper by name when he called
Dumas to complain specifically about his activity. Stepchuck,
who knew Harper was the problem, must have identified him
as such to Dumas so that he could ‘‘take care of it.’’
After Dumas was made aware that DuPont was unhappy
with Harper’s organizing efforts among the Stong employees
and wanted ‘‘the situation corrected,’’ Dumas considered
transferring Harper off the DuPont job. Since that job was
winding down anyway, however, he apparently determined
that he would simply warn his employees, including Harper,
not to engage in organizing Stong’s employees on working
time and to stay in their own area, then later transfer Harper
when the DuPont job was completed. He followed through
on this plan by issuing an order to this effort and by having
Walls issue a similar order. Walls’ order to Harper to stay
in his own area and to refrain from talking to Stong’s other
trades was also a result of his discussion with Frawnapple.
Meanwhile, Dumas advised Gravell of his intention of pos-
sibly having to transfer Harper because of the complaint
from DuPont.
After warnings were issued to Harper about continuing his
organizing activity among Stong’s employees, however, the
blowout occurred between him and MacCrory at lunchtime
on January 4. The blowout was reported back to Dumas,
probably by Greer. Dumas received the mistaken impression
that Harper was still engaging in union activity among
Stong’s employees, contrary to his order. He contacted Walls
immediately, that afternoon, after failing to reach Harper, and
told Walls he was transferring Harper to another job. Al-
though Dumas denied that he removed Harper because of the
blowout, I find that he did so because he believed it to be
a continuation of Harper’s union activity in contravention of
his direct order to refrain from campaigning to unionize
Stong’s employees. Clearly, Dumas felt that he could not
take the risk of angering DuPont by keeping Harper on the
job, if he insisted on engaging in that activity which he had
specifically prohibited.
My conclusion that Harper was removed from the DuPont
job for the above reasons, rather than because work was run-
ning out, is based on Harper’s credited testimony that Dumas
told him specifically that he was being transferred because
of the blowout. I find Harper’s testimony supported by the
fact that Greer was never called by Respondent to testify
concerning his discussion with Dumas about the blowout; the
fact that Harper was abruptly removed from the DuPont job
as soon as he could be reached; and the fact that Gravell re-
placed Harper on the DuPont job thus indicating clearly that
Harper had not been removed for lack of work.
It is important to note that Harper was not removed from
the DuPont Hotel worksite simply because he was a union
member or because he was a union activist. This is obvious
because Respondent was already unionized and was actively,
though not openly, supporting the union campaign to orga-
nize Stong. Moreover, other employees of Respondent be-
sides Harper were engaged in the Stong campaign and were
not removed from the job for that reason. On the contrary,
Harry Gravell, the prime mover among Respondent’s em-
ployees, in the Stong organizational drive, the man who set
up meetings and from whom Stong’s employees sought in-
formation most frequently about the Union, was the very per-
son whom Dumas assigned to fill Harper’s position at the
DuPont Hotel after Harper was removed. For these reasons,
I conclude that Harper’s removal was occasioned not merely
because he was active on behalf of the Union during the
Stong organizational campaign but rather for some additional
reason or reasons. Those reasons, I find to be his specific
identification by Stong, then DuPont as a union activist in
the campaign to organize Stong’s employees; DuPont’s re-
quest to Dumas to correct the situation; Dumas’ effort to cor-
rect the situation by ordering Respondent’s employees to re-
frain from certain organizational activity; the blowout; and
finally, Dumas’ mistaken belief that the blowout was the di-
rect result of Harper’s continuing efforts to organize Stong’s
employees in deliberate contravention of Dumas’ explicit
order. Since Dumas’ concern was not Harper’s activity per
se, but rather the possible loss of DuPont as a customer, he
did not discharge or permanently lay off Harper but trans-
ferred him to another job, away from the worksite where
Stong’s employees were employed.
I have found that Harper’s job at Raychem, which lasted
only 2 days, terminated for legitimate reasons. Harper, how-
ever, was convinced that his unemployment was the direct
result of his organizing efforts among the Stong employees,
the blowout, and the hiring of Stong’s employees, particu-
830 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
41 Mecouch was retained, probably by agreement with the Union
to retain employees previously employed by Stong.
42 I do not agree with the General Counsel that by making these
statements, Dumas was admitting that the June 8 layoff was unlaw-
fully motivated.
43 ‘‘When the horse has been stolen, the fool shuts the stable.’’
John Bartlett, Familiar Quotations (14th ed. 1968), p. 183 b, fn. 5.
Citing Les Proverbes del Vilain [c. 1303].
larly Mecouch, while he remained in layoff status. He
brought his concerns to the attention of Garthe and advised
him that he was considering filing a grievance.
Although Garthe dissuaded Harper from filing a grievance
at this time, with the explanation that there were not enough
facts to support his case, there appears to have been other
considerations which may well have determined the inadvis-
ability of filing and supporting Harper’s proposed grievance.
Thus, the Union and Respondent were allies in the campaign
to organize Stong’s employees, a campaign which was in full
swing at the time. To show Respondent’s support for the or-
ganizational drive, the Union had requested and Respondent
had agreed to hire Stong’s terminated employees. Obviously,
the Union was in no position to support Harper’s grievance,
the object of which was to have him recalled to replace the
Stong employees hired by Respondent at the Union’s request.
At the same time, Garthe and the Union had an obligation
to try to have Harper recalled after his removal from the Du-
Pont Hotel job for engaging in organizational activities.
I find that Garthe did, in fact, follow through on his prom-
ise to contact Dumas to have Harper recalled. I also find it
more probable than not, that in the course of his discussions
with Dumas, that he advised him of Harper’s intention to file
a grievance based on his removal from the DuPont Hotel job
and his objections to the hiring of Stong’s employees, in par-
ticular Mecouch.
When Dumas recalled Harper on February 22, I find that
he did so, not only because he needed more manpower, but
also because Garthe had contacted him, asked him to recall
Harper and advised him of Harper’s possibly filing a griev-
ance if not recalled.
When Harper reported for work on the morning of Feb-
ruary 22, the conversation as credibly described by Harper
and denied by Dumas occurred. I find it more probable that
it took place, rather than it did not, for several related inter-
dependent reasons. First, because on the evening of January
4, Dumas told Harper that he had heard that Harper had had
a big blowout with a Stong employee in violation of his
‘‘no-talking’’ order and was therefore removing Harper from
the DuPont jobsite; second, because Dumas had been told by
Garthe that Harper might file a grievance based on his re-
moval from the DuPont Hotel job on these grounds; third,
because, as Harper quoted him, he did not want to hear an-
other word about it. In other words, Harper had been re-
called, at least in part, to avoid a grievance, and the subject
matter of the grievance, Harper’s removal from the DuPont
Hotel job, was brought up by Dumas as a means of telling
Harper that although he was being recalled by Dumas, he
still did not want Harper to get similarly involved again. By
recalling Harper and lecturing him concerning his activities
among the Stong employees, Dumas clearly expected that he
had put the problem to rest.
Harper worked for Respondent from February 22 into
early May without incident. True to his word, Harper did not
get further involved in the organizational drive at Stong.
When Greer told him that there was going to be a layoff, but
that Harper was safe due to political considerations within
the Union; then, there was, indeed, a layoff, with Harper
spared as Greer forecasted, it is apparent that Greer was
privy, in advance, to the layoff and the reason, perhaps, why
Harper was retained. But even if Harper’s testimony concern-
ing his conversation with Greer is not credited, it is still pos-
sible that Harper was kept after the other employees had
been laid off, in order to avoid Harper’s filing of the threat-
ened grievance.
Of course, if Greer’s internal union political explanation
and Harper’s potential threat to file a grievance are rejected
as the reasons for retaining Harper while laying off eight
other employees, then his retention under the circumstances
is supportive of Respondent’s position that he was retained
because Dumas harbored no animosity toward him at the
time.
The circumstances leading up to and surrounding the lay-
off of Harper on June 8 do not appear to be particularly sus-
picious. Three employees were laid off on that day and the
names of four laid-off employees, including that of Harper,
were given to another company to hire, thus indicating that
the layoff was not expected to be temporary. Kept on the
payroll were 18 employees, including Dumas, virtually all41
of whom, had been employed by Respondent over the years.
This layoff left Respondent with the smallest complement of
employees since the layoff of February 1990. Company
records thus support Respondent’s defense that available
work could not generally support the retention of the laid-
off employees. In light of all of the facts, the company
records, the layoff of a total of 11 employees, including
Harper, in May and June, 8 of them preceding Harper’s, the
retention of the smallest complement of employees by Re-
spondent in several years, the length of Harper’s retention on
the job between February and June with no additional inci-
dents or further evidence of animosity toward him during this
period, I find insufficient evidence to conclude that Harper’s
June 8–9 layoff was discriminatorily motivated and therefore
recommended dismissal of that allegation.
When Harper later sought to file a grievance with Garthe
based on the theory that his January 6 and June 8 layoffs
were both in retaliation for his union activity at Stong, and
Garthe dissuaded him from doing so with the promise that
he would talk to Dumas about it, Harper effectively gave no-
tice that he was still considering seeking restitution for the
wrongs he felt he had suffered at the hands of Dumas. When
Garthe advised Dumas that Harper was considering filing a
grievance, and told him the basis for his grievance, Dumas
was also put on notice that the problem that he had thought
had been put to rest on February 22, was still very much
alive.
When Dumas met Harper in front of the shop on August
16, 1993, and Harper asked to be recalled, and Dumas told
Harper that he ‘‘was on example of how you can lose that
good paying union job for participating in union activity,’’
I find that Dumas was admitting, once again, that Harper had
initially been removed from the DuPont Hotel job because of
his insisting on continuing his union activity despite being
told to cease.42 By stating that ‘‘the horse was out of the
barn’’43 and that there was nothing he could do to help
Harper, I find that he was telling Harper that it was too late
831GRINNELL CORP.
44 Grinnell Fire Protection Systems Co., 307 NLRB 1452, 1454
(1992).
45 W. F. Bolin Co., 311 NLRB 1118 (1993).
46 Helnick Corp., 301 NLRB 128, 133 (1991); Debber, 313 NLRB
1094 (1994).
47 W. F. Bolin, supra.
The factual background on which I base my finding of a violation
includes the factual background upon which the allegations con-
tained in the complaint are based as well as the subsequent events
described herein. All factual issues were fully examined, considered,
and litigated at the hearing, thus permitting the finding of the 8(a)(3)
violation.
48 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982).
for him to change the course of events, that by taking the
position that he would fight Dumas on the issue, through the
filing of grievances or by pursuing litigation, he had closed
the door to recall. By Dumas making these statements to
Harper, I find Respondent violated Section 8(a)(1) of the
Act.44
Despite Dumas advising Harper on August 16 that it was
too late for him to help Harper, Harper persisted through late
August and September in his attempt to get the Union to
support his efforts to obtain reemployment with Respondent.
His efforts were successful to the extent that Garthe
interceded on his behalf, and despite Dumas’ earlier state-
ments to Harper on August 16, about it being too late,
Garthe obtained Dumas’ promise to remploy Harper when
work picked up. This occurred on October 4.
With regard to the November 1 conversation between
Dumas and Harper, I find that Respondent, through Dumas,
violated Section 8(a)(1) of the Act, by Dumas’ telling Harper
that if he pursued reparations over the issue of his layoffs
and continued causing problems for Dumas by doing so, they
would be rolling in the streets.45 Similarly, by telling him
that he did not want to hear any more complaining either
about his organizing or his layoffs; and by telling Harper,
‘‘Don’t push it,’’ Respondent, through Dumas, again violated
Section 8(a)(1) of the Act.
On November 8, I have found, Carter was Harper’s super-
visor and by virtue of this fact, he was also Respondent’s
agent. On that date, when Dumas told Carter to tell Harper
that if he brought a lawsuit or charges against Respondent,
he would no longer, ever, work for Grinnell, Dumas made
Carter Respondent’s agent for the specific purpose of com-
mitting an 8(a)(1) violation of the Act. Later that day, when
Carter advised Harper of Dumas’ threat, he thereby commit-
ted the 8(a)(1) violation on Respondent’s behalf as alleged
in the complaint.46
On November 12, when Harper was laid off, he was one
of five employees let go about that time, a group which in-
cluded Mecouch. Employees retained were almost all core
employees of longstanding. Dumas went out of his way to
convince Harper that the layoff was economically, not un-
lawfully, motivated and even showed him Mecouch’s separa-
tion check. No words of animus passed between Dumas and
Harper at the time and since Harper had not filed any griev-
ances or charges against Respondent prior to his layoff, there
is no basis for a finding that Respondent had reason to effec-
tuate its threat of November 8. I find that there is insufficient
evidence to support the allegation that Harper was laid off
on November 12 for reasons violative of the Act.
When Greer took over for Dumas on November 16, he
was fully aware of the history of Harper’s problem with Re-
spondent dating all the way back to his organizational work
among the Stong employees. He was sympathetic with Harp-
er’s case and decided to undue the injustice Harper had suf-
fered by rehiring him, the authority to hire, just having re-
cently been acquired by him, as a result of his appointment
to superintendent to replace Dumas.
However, between the time that Greer told Harry Gravell
to advise Harper of his decision to rehire Harper and Harp-
er’s acceptance of Greer’s offer of rememployment, as later
reported by Gravell to Greer, Harper, on November 22, filed
his charge with the NLRB alleging that he had been laid off
on June 9 because of his union activities. When Schwander
received a copy of Harper’s charge on November 29, he ve-
toed Greer’s decision to rehire him. Evidence of Schwander’s
refusal to permit Greer to rehire Harper is contained in
Carter’s description of the conversation between Schwander
and Greer which Carter overheard on or about November 30,
and his testimony concerning Greer’s clarification of that
conversation which he offered to Carter that afternoon. Fur-
ther supporting evidence is contained in Gravell’s testimony
concerning his later conversation with Greer who informed
him that he was not allowed to rehire Harper and that Harper
would never work for Grinnell again, by Schwander’s order.
Although I have found that the General Counsel has failed
to prove by a preponderance of the evidence that Harper was
laid off of November 12 for reasons violative of the Act, I
find that the evidence clearly supports a finding that he was
denied immediate employment as well as any possible future
employment with Respondent on or about November 30,
shortly after his November 12 layoff, because he engaged in
union activity, filed charges, complained about working con-
ditions, sought reparations, threatened grievances, and pur-
sued his rights under Section 7 of the Act. I thus find Re-
spondent in violation of Section 8(a)(1) and (3) of the Act.47
The record clearly reflects that Greer was in the process
of rehiring Harper in November 1993. But for the fact that
Schwander vetoed Greer’s decision to rehire Harper, solely
because he engaged in union activity, filed charges, and pur-
sued his rights under Section 7 of the Act, Harper would
have been reemployed by Respondent. The dictates of Wright
Line48 are met.
CONCLUSIONS OF LAW
1. Respondent Grinnell Corporation is an employer en-
gaged 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.
3. By telling an employee that he would not be recalled
from layoff because he had engaged in union activities, by
threatening an employee with retaliation if he pursued repara-
tions for previous layoffs of filed grievances, and by prohib-
iting and otherwise interfering with these protected activities,
Respondent violated Section 8(a)(1) of the Act.
4. By telling an employee that if he filed charges with the
Board against Respondent, he would no longer, ever, work
for Grinnell, Respondent violated Section 8(a)(1) of the Act.
5. By refusing Jesse N. Harper immediate employment as
well as any possible future employment with Respondent be-
832 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
49 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.
50 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.’’
cause he engaged in union activity, filed charges, and pur-
sued his rights under Section 7 of the Act, Respondent vio-
lated Section 8(a)(1) and (3) of the Act.
6. The unfair labor practices enumerated above are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (3) of the
Act, I shall recommend that it be ordered to cease and desist
therefrom and to take appropriate and affirmative action de-
signed to effectuate the policies of the Act. In particular, as
I have found that employee Jesse N. Harper was denied im-
mediate employment as well as any possible future employ-
ment with Respondent because he engaged in union activity,
filed charges, and pursued his rights under Section 7 of the
Act, in violation of Section 8(a)(1) and (3) of the Act, I shall
recommend that Respondent be ordered to offer Harper im-
mediate and full employment to the job for which he was
being considered at the time of the unlawful refusal to em-
ploy him, displacing, if necessary, and replacement or, if the
job for which he as being considered no longer exists, to a
substantially equivalent position, without prejudice to his se-
niority or other rights and privileges, and to make him whole
for any loss of pay suffered as a result of the discrimination
against him with backpay computed in accordance with
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
thereon computed in the manner prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987). See also Isis
Plumbing Co., 138 NLRB 716 (1962). I shall also rec-
ommend that Respondent be required to post an appropriate
notice.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended49
ORDER
The Respondent, Grinnell Corporation, Wilmington, Dela-
ware, its officers, agents, successors, and assigns, shall
1. Cease and desist from discouraging membership in, ac-
tivities on behalf of, or sympathies toward Road Sprinkler
Fitters Local Union No. 669 of the United Association of
Journeymen and Apprentices of the Plumbing and Pipe Fit-
ting Industry of the United States and Canada or any other
labor organization by
(a) Telling employees that they will not be recalled from
layoff because they had engaged in union activities.
(b) Threatening employees with retaliation if they pursue
reparations for previous layoffs or file grievances.
(c) Telling employees that if they file charges with the
Board, they will no longer, ever, work for Grinnell.
(d) Refusing Jesse N. Harper immediate employment as
well as any possible future employment with Respondent be-
cause he has engaged in union activities, filed charges, and
pursued his rights under Section 7 of the Act.
(e) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Jesse N. Harper immediate and full employment
to the job for which he was being considered at the time of
the unlawful refusal to employ him, displacing, if necessary,
any replacement or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his seniority
or other rights and privileges previously enjoyed.
(b) Make Jesse N. Harper whole for any loss of pay suf-
fered as a result of the discrimination against him in the
manner set forth in the remedy section of this decision.
(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) Post at its place of business in New Castle, Delaware,
copies of the attached notice marked ‘‘Appendix.’’50 Copies
of the notice, on forms provided by the Regional Director for
Region 4, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
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 tell employees that they will not be recalled
from layoff because they have engaged in union activities.
WE WILL NOT threaten employees with retaliation if they
pursue reparations for previous layoffs of file grievances.
WE WILL NOT tell employees that if they file charges with
the Board, they will no longer, ever, work for Grinnell.
WE WILL NOT refuse Jesse N. Harper immediate or future
employment because he has engaged in union activities, filed
charges, or pursued his rights under Section 7 of the Act.
WE WILL NOT in any other manner interfere with, restrain,
or coerce employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
833GRINNELL CORP.
WE WILL offer Jesse N. Harper immediate and full em-
ployment to the job for which he was being considered at
the time of our unlawful refusal to employ him or, if that
job no longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights and privi-
leges previously enjoyed and WE WILL make him whole for
any loss of pay suffered as a result of the discrimination
against him.
GRINNELL CORPORATION