WILLIAMS ENTERPRISES

National Labor Relations Board - Board Decisions

Jan 16, 1991

301 N.L.R.B. 167 (N.L.R.B. 1991)

WILLIAMS ENTERPRISES
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
301 NLRB No. 19
Williams Enterprises, Inc., a Division of Williams Industries, Inc. and
Local Lodge 10 of the International Association of Machinists &
Aerospace Workers, AFL-CIO, CLC. Case 5-CA-19408
JANUARY 16, 1991
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND RAUDABAUGH
On May 22, 1989, Administrative Law Judge Bernard Ries issued the
attached decision. The Respondent filed exceptions and a supporting
brief. The Acting General Counsel filed cross-exceptions and a brief in
support of cross-exceptions and in response to the Respondent's
exceptions. The Charging Party filed cross-exceptions and a supporting
brief.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
The Board has considered the decision and the record in light of the
exceptions and briefs and has decided to affirm the judge's rulings,
findings,\1\ and conclusions and to adopt the recommended Order as
modified.\2\
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\1\The Respondent, Acting General Counsel, and the Charging Party
have excepted to some of the judge's credibility findings. The Board's
established policy is not to overrule an administrative law judge's
credibility resolutions unless the clear preponderance of all the
relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We
have carefully examined the record and find no basis for reversing the
findings.
In adopting the judge's findings, we disavow the subjective
observations made in fns. 6, 9, and 14 as well as his gratuitous
comments about the educational and intellectual sophistication of the
employee witnesses.
Further, in agreeing with the judge that the Respondent is a
successor employer, we find it unnecessary to rely on his comments,
drawn from his reading of Fall River Dyeing Corp. v. NLRB, 482 U.S. 27
(1987), that the Supreme Court there indicated (1) that ``a significant
degree of liberality [is] appropriate to the operation of the
[successorship] doctrine''; (2) that the Court allegedly approved ``what
fairly [may] be regarded as relaxed corollary principles of when and how
the [successorship] obligation may attach''; and (3) that the Court had
a ``strong . . . disposition in favor; of imposing successorship
obligations.'' Nor do we find it necessary, in assessing whether there
is a ``substantial continuity'' between the two enterprises, to rely on
the judge's comment that ``it seems logical . . . to begin with the
assumption that employees who have in the past elected (or accepted)
union representation in one enterprise will be inclined to prefer
representation in the succeeding business.'' Rather, we are in agreement
with the judge, pursuant to his findings at sec. I,A, pars. 18-19, and
as elaborated in his decision, that the General Counsel established a
``substantial continuity'' between the predecessor and the Respondent.
Finally, in the last paragraph of the section of the decision
entitled ``Did Respondent Violate Section 8(a)(5) by Refusing to
Recognize the Union?'', the judge referred to fn. 18 of Fall River
Dyeing. It is evident from his discussion that the judge meant to refer
to fn. 19 of Fall River. We do not find that this misstatement has any
1
effect on the judge's ultimate conclusions here.
\2\The judge's recommended Order includes a provision requiring the
Respondent to cease and desist from violating the Act ``in any other
manner.'' We find that the Respondent's unfair labor practices do not
warrant the use of such a ``broad'' order. Consequently, we shall
substitute the Board's traditional narrow remedial language, requiring
the Respondent to cease and desist from violating the Act ``in any like
or related manner.'' See Hickmott Foods, 242 NLRB 1357 (1979).
We shall also modify the recommended Order to include affirmative
bargaining language. A new notice reflecting both of the modifications
discussed above will be substituted for the judge's recommended notice.
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1. The Respondent argues in its exceptions, citing Fremont Ford, 289
NLRB 1290 (1988), that the complaint is facially defective here because
it alleges that the Union's demand for recognition occurred before the
Respondent commenced operations at its Richmond, Virginia plant about
October 1, 1987. Contrary to the Respondent, we find that the present
case is factually distinguishable from Fremont. Here, the judge found
that the Union made its bargaining demand ``sometime between'' July 15
and September 30, 1987. The evidence shows that on or about July 13,
1987, before the Union acted, the Respondent had executed an agreement
to purchase the predecessor's assets which essentially consisted of the
Richmond plant involved in this case. The Respondent immediately began
accepting employment applications for the plant and all 83 of the
predecessor's employees submitted the requisite forms. During a meeting
on August 21, 1987, the Respondent told 44 of these employees that they
were in ``the favored group being considered for potential hire'' and
informed them of those working conditions they could expect. In Fremont,
by contrast, the Board found that the union's first demand for
recognition was premature because the successor at that time had not
entered into a franchise agreement to operate the car dealership nor had
it taken any other steps to divest the predecessor's control of the
employing entity (id. at 1294).
In finding that the December 31, 1987 decertification petition did
not provide a valid justification for terminating the Respondent's
bargaining obligation to the Union, the judge relied on the Respondent's
8(a)(1) conduct of August 21. We would also rely on the fact that, as of
December 31, 1987, Respondent had been unlawfully refusing to recognize
the Union for 2-1/2 months.
2. The judge concluded that the Respondent violated Section 8(a)(1)
of the Act when it told employees during the August 21, 1987 meeting
that it ``did intend to operate the Richmond plant as a nonunion
plant.'' The Respondent claims, however, that this 8(a)(1) finding is
contrary to the decision in Heck's, Inc., 293 NLRB 1111 (1989), in which
the Board held that a statement in a unionized employer's handbook that
the company did ``not want any of our employees to be represented by a
Union'' did not constitute a violation. The Respondent's statement here
tends to interfere with employees' Section 7 rights because the
Respondent announced to prospective employees its firm intention to
remain nonunion and thus, as the judge found, implicitly conveyed the
message to these individuals that ``any conduct by them which is not
consistent with that ukase may jeopardize their employment possibilities
or security.'' In contrast, the employer in Heck's did nothing more than
inform present employees of its desire to operate nonunion.
3. Finally, we adopt the judge's findings that the Respondent
violated Section 8(a)(3) of the Act by refusing to hire employees Gable
Bullock Jr. and Melvin Deloatch on or about February 23 and March 7,
1988, respectively. In so doing, we reject the Respondent's argument
that it was deprived of its basic right to adequate notice of the
material issues to be tried and to full and fair litigation of those
issues because the complaint alleges that the termination or refusal to
hire both Bullock and Deloatch occurred on or about October 1, 1987. The
Respondent claims that the instant case is controlled by Castaways Hotel
& Casino, 284 NLRB 612 (1987), in which the Board reversed a judge's
finding that a June 4, 1984 discharge violated the Act because the
complaint had alleged that the unlawful discharge had occurred on May
19, 1984. We find Castaways to be inapposite to this case because the
2
judge there examined a completely different factual setting for the
discharge in finding that it occurred on a different date than was
alleged. Furthermore, the Board stressed in Castaways that the General
Counsel had not put the respondent on notice that the lawfulness of its
conduct on June 4 was at issue. Here, by contrast, the issue of whether
the Respondent refused to hire Bullock and Deloatch was the same
regardless of when the violation occurred. It is clear that the
Respondent's refusal to hire them on the dates the judge specified was
fully litigated because the General Counsel presented evidence comparing
their qualifications with those possessed by the employees that the
Respondent hired during that period.
ORDER
The National Labor Relations Board adopts the recommended Order of
the administrative law judge as modified below and orders that the
Respondent, Williams Enterprises, Inc., a Division of Williams
Industries, Inc., Richmond, Virginia, its officers, agents, successors,
and assigns, shall take the action set forth in the Order as modified.
1. Substitute the following for paragraph 1(d).
``(d) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of rights guaranteed them by
Section 7 of the Act.''
2. Insert the following as paragraph 2(b) and reletter the
subsequent paragraphs.
``(b) Recognize and, on request, bargain with the Union as the
exclusive collective-bargaining representative of the employees in the
bargaining unit described above and, if an understanding is reached,
embody the understanding in a signed agreement.''
3. Substitute the attached notice for that of the administrative law
judge.
APPENDIX
Notice To Employees
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated the
National Labor Relations Act and has ordered us to post and abide by
this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their own
choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected concerted
activities.
We will not discriminate against applicants for employment because
of their union activities.
We will not refuse to bargain with Local Lodge 10 of the
International Association of Machinists & Aerospace Workers, AFL-CIO,
CLC, as the exclusive collective-bargaining representative of the
employees in the following appropriate unit:
All production, maintenance, and warehouse employees at the
Employer's Richmond, Virginia, plant, excluding employees
working in and/or engaged as office, clerical, watchmen,
drafting, engineering, office janitor, guards, supervisors,
erection, installation or construction work.
We will not coercively interrogate employees or applicants about
3
their union sympathies or the sympathies of others, or announce to
applicants that we intend to operate a nonunion plant.
We will not in any like or related manner interfere with, restrain,
or coerce you in the exercise of the rights guaranteed you by Section 7
of the Act.
We will offer Gable Bullock Jr. and Melvin Deloatch immediate and
full employment in their former, or equivalent jobs, and we will make
them whole for any loss of earnings and other benefits resulting from
our failure to hire them.
We will recognize and, on request, bargain with the Union and put
in writing and sign any agreement reached on terms and conditions of
employment for our employees in the bargaining unit described above.
Williams Enterprises, Inc., a Division of
Williams Industries, Inc.
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Steven L. Sokolow, Esq., for the General Counsel.
Lawrence T. Zimmerman, Esq., of Washington, D.C., for the Respondent.
Stephen Spain, of Richmond, Virginia, for the Charging Party.
DECISION
Bernard Ries, Administrative Law Judge. This case was tried in
Richmond, Virginia, on January 26 and 27, 1989, pursuant to a charge
filed on February 4, 1988 (as amended on March 28, 1988), and a
complaint issued on August 9, 1988.
The essential allegations of the complaint are (1) that Respondent
is, in law, a successor employer obligated to recognize the Charging
Party as the excluslve representative of its production and maintenance
employees, and that having failed to honor this obligation since on or
about October 1, 1987, and having unilaterally made changes in terms and
conditions of employment since that date, Respondent has violated
Section 8(a)(5) of the Act; (2) that Respondent, since the foregoing
date, unlawfully ``terminated the employment of, and/or refused to
hire''\1\ Gable Bullock Jr. and Melvin Deloatch, in violation of Section
8(a)(3); and (3) that Respondent's agent, on or about August 21, 1987,
in or around December 1987, and on or about April 1 and 4, 1988, coerced
or restrained employees by making various statements.
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\1\As amended at the hearing.
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The General Counsel and the Respondent filed briefs on or about
March 19, l989. I have reviewed the entire record and the briefs. On the
basis of that review, and taking into account my recollect1on of the
demeanor of the witnesses, I make the following findings of fact,\2\
conclusions of law, and recommendations.
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\2\Certain errors in the transcript are noted and corrected.
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i. the alleged violations related to the successor-employer
issue
A. Was Respondent a Successor Employer
For several decades, a succession of firms have operated a steel
fabricating business in a plant in Richmond, Virginia: first Richmond
Steel, then Bristol Steel and Iron Works, Inc., from some unknown date
until September 30, 1987, and since October 1, 1987, Williams
Enterprises, Inc., a division of a conglomerate called Williams
Industries, Inc., which bought the plant a machinery from Bristol. For
years, Bristol recognized the Charging Party as the collective-
bargaining agent for its production and maintenance employees, the
recent bargaining agreement between them covered a 3-year period
4
commencing February 1, 1985.
Bristols' (and later Williams') plant manager at material times has
been John Barnes, who began employment with Bristol in 1970; the plant
superintendent for both companies has been James Johnson, whose Bristol
association dates back to 1965. These two witnesses provided virtually
all the testimony relating to the nature of the work performed at the
plant under Bristol, as compared to that done under the Williams'
regime.
The testimony shows that Bristol was mainly engaged in the
fabrication of structural steel or use in constructing buildings, while
Williams has undertaken to devote itself to the construction of steel
bridges. There are exceptions to both general statements. While Barnes
testified Bristol performed building work ``almost exclusively'' from
1970 to 1980, it thereafter, in 1981-1982 and half of 1984, engaged in
bridge work, amounting to 20-25 percent total product, at the Richmond
plant (the bridge work constituted ``overflow''from another Bristol
location in Virginia, which did only bridge construction). After that
work, however, the Richmond location produced ``exclusively building
work'' with the exception of one minor bridge job solicited by an old
customer. The primary intended use of the plant by Williams is to
produce bridge girders and accessories. However, out of 58 projects
undertaken between October 1, 1987, and January 14, 1989, some 31,380
hours, of an overall total of 108,451 hours worked, were expended on
nonbridge production (including completion by Williams of six unfinished
Bristol jobs) (R. Exh. 5).
At the time that Bristol was about to cease production at the plant,
there were 83 production employees. Since Williams has taken over the
plant, the highest level of employment has been 62 rank-and-file
employees, with the average in the range of 36-42. It is primarily this
reduction in employment level which has caused the number of floor
supervisors to decline from eight to two, although some portion of that
decline, Barnes said, is also due to changes in the work format.
The difference in the essential character of the basic product and
work techniques is substantial. Preparing construction steel for Bristol
meant receiving ``many, many'' relatively small preshaped structural
parts which were then processed, while bridge work principally involves
receiving steel plate ``sometimes even longer than a hundred foot long
and . . . in excess of a hundred inches wide.''\3\ To outfit the plant
for bridge specialization, a new receiving area had to be constructed,
and major changes were made in the plant to accommodate new machinery
and to remove or relocate old equipment.
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\3\Testimony of Plant Superintendent Johnson.
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Performance of bridge construction is, according to Barnes, much
simpler than readying steel for fabrication into a building.\4\ Barnes
also stressed the claim that Williams, unlike Bristol, relies heavily on
teamwork by the employees on its abillty to utilize their multiple
skills on a variety of tasks instead of having to rigidly pigeonhole
them, as under the union contract, by classification.
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\4\At the same time, however, Respondent adduced evidence that
bridge work is more closely scrutinized by Federal and state
authorities, and that certain work must be performed to tolerances a
great deal closer than those required in building construction.
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This latter asserted difference is, of course, a priori, a product
of the fact that Williams, having failed to extend recognition to the
Union in October 1987 or thereafter, felt free to organize the plant
along the lines that it wished. It appears, nonetheless, that Respondent
did retain a form of classification system, as indicated not only in the
testimony of Barnes and Johnson, but also in General Counsel Exhibit's
14, which is composed of lists of production employees as of January 14,
1988, and 1989 and which shows their ``primary'' assignment. In
addition, certain application forms filed by Bristol employees for work
at Williams have attached to them the employees' statements of various
skills they possess; it would appear from the applications that these
5
varied skills were most likely learned while working at Bristol in
classifications which normally would not encompass such functions.
Johnson testified, furthermore, to having hired employees for Williams
on the basis of their several abilities, but I cannot imagine any way
that he could have known of these multiple capabilities unless he had
witnessed them. Thus, it seems likely that many Bristol employees
performed work outside of their formal classifications.
Without setting out the considerable evidence bearing on the
contrast between the Bristol and the Williams operations, it seems
sufficient to say that the work processes and machinery have undergone
substantial change; that many of the ``new'' functions are similar to
the old functions and others are actually different; that some former
classifications no longer exist; and that the bridge construction work
is being performed mostly by the employees who had made building steel
for Bristol.
It was in NLRB v. Burns Security Services, 406 U.S. 272 (1972), that
the Supreme Court first approved the basic Board doctrine relating to a
successor employer's obligation to bargain with the union which had been
the collective-bargaining representative of the predecessor employer's
employees. The facts in Burns, however, were not the usual kind of
case--the predecessor's employees had, only months before, designated a
bargaining agent, and the successor, whose work force consisted of a
majority of these employees, succeeded not to a plant but rather simply
took over a security service contract. More recently, in Fall River
Dyeing Corp. v. NLRB, 482 U.S. 27 (1987), the Supreme Court has had an
opportunity to consider the sort of successorship situation which more
comonly presents itself, as well as related Board-hewn principles not
before the Court in Burns.
A review of Fall River suggests that the Court perceives the
successor-employer concept as being capable of making a valuable
contribution to labor peace. As indicated below, the Court appears to
deem a significant degree of liberality appropriate to the operation of
the doctrine. Speaking of the reference in Burns to the normally
conclusive presumption of a union's majority status during the year
following certification and the rebuttable presumption of such support
thereafter, the Court found that the application to the successorship
situation of the policy choices underlying these presumptions was
especially justified (482 U.S. at 38-40):
These presumptions are based not so much on an absolute
certainty that the union's majority status will not erode
following certification, as on a particular policy
decision. The overriding policy of the NLRA is
``industrial peace.'' Brooks v. NLRB, 348 U.S., at 103.
The presumptions of majority support further this policy
by ``promot[ing] stability in collective-bargaining
relationships, without impairing the free choice of
employees.'' Terrell Machine Co., 173 N.L.R.B. 1480
(1969), enf'd, 427 F.2d 1088 (CA4), cert. denied, 398 U.S.
929 (1970). . . The upshot of the presumptions is to
permit unions to develop stable bargaining relationships
with employers, which will enable the unions to pursue the
goals of their members, and this pursuit, in turn, will
further industrial peace.
The rationale behind the presumptions is particularly
pertinent in the successorship situation and so it is
understandable that the Court in Burns referred to them.
During a transition between employers, a union is in a
peculiarly vulnerable position. It has no formal and
established bargaining relationship with the new employer,
is uncertain about the new employer's plans, and cannot be
sure if or when the new employer must bargain with it.
While being concerned with the future of its members with
the new employer, the union also must protect whatever
rights still exist or its members under the collective-
bargaining agreement with the predecessor employer.
Accordingly, during this unsettling transition period, the
6
union needs the presumptions of majority status to which
it is entitled to safeguard its members' rights and to
develop a relationship with the successor.
The position of the employees also support the application
of the presumptions in the successorship situation. If the
employees find themselves in a new enterprise that
substantially resembles the old, but without their chosen
bargaining representative, they may well feel that their
choice of a union is subject to the vagaries of an
enterprise's transformation. This feeling is not conducive
to industrial peace. In addition, after being hired by a
new company following a layoff from the old, employees
initially will be concerned primarily with maintaining
their new jobs. In fact, they might be inclined to shun
support for their former union, especially if they believe
that such support will jeopardize their jobs with the
successor or if they are inclined to blame the union for
their layoff and problems associated with it. Without the
presumptions of majority support and with the wide variety
of corporate transformations possible, an employer could
use a successor enterprise as a way of getting rid of a
labor contract and of exploiting the employees' hesitant
attitude towards the union to eliminate its continuing
presence.
Given this obvious inclination of the Court to view the
successorship obligation as potentially offering beneficial service to
national labor interests, it is not surprising that the Court went on to
also approve what may fairly be regarded as relaxed corollary principles
of when and how the obligation may attach. Thus, the Board was deemed
justified in formulating a ``substantial and representative complement''
rule in successorship situations. In Fall River, that meant that the
successor employer became liable to recognize the old union not when it
commenced operations in September 1982, but rather in mid-January 1983,
by which time it had hired 55 workers, 36 of whom had been employed by
the predecessor employer--even though by mid-Apri1 1983 the successor
had hired a ``full'' complement of 107 employees, less than half of whom
had been employed by the predecessor; even though it was not until
October 1984 (272 NLRB 839) that the Board decided that the phenomenon
of a ``substantial and representative complement,'' and thus a
bargaining obligation, had arisen in mid-January 1983 rather than later;
and even though there as no evidence that the predecessor's 36 employees
hired by the successor as of the January date actually favored the union
as their representative.
The Court further agreed with the Board that a union demand made in
October could be considered to be ``continuing'' until mid-January 1983
(a time which necessarily postdated the violation date cited in the
original complaint issued in December 1982). In so doing, the Court
seemed to even further confirm its belief in the value of the
successorship policy as an emollient in potential labor disputes
(particularly given the limited ``collateral consequences'' of any
Board-found violations). Id. at 51 fn. 18.
It is against this background of what I perceive as a strong court
disposition in favor of imposing successorship obligations that I
examine the question of whether the Respondent should be considered a
successor to Bristol. ln Fall River, the Court phrased the test in broad
terms as follows: ``If the new employer makes a conscious decision to
maintain generally the same business and to hire a majority of its
employees from the predecessor, then the bargaining obligation of
Sec. 8(a)(5) is activated.'' Id. at 41. As to the second half of this
test, there is no question raised here. Of the 94 employees hired by
Williams between October l, 1987, and January 1989 just prior to the
hearing in this case,\5\ a substantial majority had worked for Bristol.
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\5\See G.C. Exh. 13. It appears that employees Ray A. Brown, Jessie
A. George, and Norman L. Logan were hired twice by Respondent.
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lt is the first test which presents more difficulty on this record.
7
In Fall River, paying due respect to precedent, the Court said that the
issue of whether ``a new company was indeed the successor to the old''
(id. at 43):
. . . is primarily factual in nature and is based upon the
totality of the circumstances of a given situation, requir[ing]
that the Board focus on whether the new company has ``acquired
substantial assets of its predecessor and continued, without
interruption or substantial change, the predecessor's business
operations.'' Golden State Bottling Co. v. NLRB, 414 U.S., at
184. Hence, the focus is on whether there is ``substantial
continuity'' between the enterprises. Under this approach, the
Board examines a number of factors: whether the business of both
employers is essentially the same; whether the employees of the
new company are doing the same jobs in the same working
conditions under the same supervisors; and whether the new
entity has the same production process, produces the same
products, and basically has the same body of customers. See
Burns, 406 U.S., at 280; Aircraft Magnesium, a Division of Grico
Corp., 265 N.L.R.B. 1344, 1345 (1982), enf'd, 730 F.2d 767 (CA 9
1984); Premium Foods, Inc., 260 N.L.R.B. 708, 714 (1982), enf'd,
709 F.2d 623 (CA 9 1983).
In several of the cases cited by Respondent, the Board and
administrative law judges have conducted rote ``examinations'' of the
foregoing factors and, having found fewer instances of ``same'' than
``not the same,'' concluded that no successorship should be found. E.g.,
J-P Mfg., Inc., 194 NLRB 965 (1972); Woodrich Industries, 246 NLRB 43
(1979). But it is inconceivable that each of the factors is entitled to
be assigned equal weight--that the ``same working conditions'' is a
consideration no more or less significant than the ``same body of
customers.'' Integral to this evaluation, rather, there is a point of
view which makes possible a reasoned assessment. This notion has
appeared in the lower authorities (NLRB v. Albert Armato, 199 F.2d 800,
803 (7th Cir. 1952); Ranch-Way, Inc., l83 NLRB 1168, 1169 (1970);
Jeffries Lithograph Co., 265 NLRB 1499, 1504 (1982), enfd. 752 F.2d 459,
464 (9th Cir. 1985)), and has been given unmistakable prominence by the
Supreme Court. As the Court stated in Fall River (at 43-44):
In conducting the analysis, the Board keeps in mind the
question whether ``those employees who have been retained
will understandably view their job situations as
essentially unaltered.'' See Golden State Bottling Co.,
414 U.S., at 184; NLRB v. Jeffries Lithograph Co., 752
F.2d 459, 464 (CA 9 l987). This emphasis on the employees'
perspective furthers the Act's policy of industrial peace.
If the employees find themselves in essentially the same
jobs after the employer transition and if their legitimate
expectations in continued representation by their union
are thwarted, their dissatisfaction may lead to labor
unrest. See Golden State Bottling Co., 414 U.S., at 184.
A determination made from the ``employees' perspective,'' from the
view point of whether the changes had any ``effect on the employer-
employee relationship,'' id. at 44 fn. 11, seems to translate into a
test, as formulated by the Court of Appeals in Sheffield Industries v.
NLRB (D.C. Cir., March 2, l989, unpublished per curiam order), of
``whether there were significant changes in those circumstances most
likely to affect the attitudes of the employees'' so as to warrant a
conclusion that no successorship came into being; or as stated by the
Board in Derby Refining Co., 292 NLRB 1015 (1989), ``In the
successorship situation, the events must be viewed from the employees'
perspective, i.e., whether their job situation has so changed that they
would change their attitudes about being represented.''
There is no hard and fast way to make judgments about whether the
employees' ``job situation has so changed that they would change their
attitude about being represented'' by a union. It seems logical,
8
however, to begin with the assumption that employees who have in the
past elected (or accepted) union representation in one enterprise will
be inclined to prefer representation in the succeeding business. When
the employees continue to work in the same facility, that fact should
bolster the assumption.\6\ When they perform essentially the same sort
of functions, that again strengthens the assumption; it is difficult to
believe that some new machines, some relocations of machines, some
different work techniques, some fewer categories of workers, would
convert a prounion employee to one who opposes union representation.\7\
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\6\After examining the photograph of the plant shown at p. 12 of
Respondent's l988 annual report, it takes an active imagination to
conclude that almost any changes in machinery and processes would affect
basic employee attitudes toward working in this facility.
\7\It seems most unlikely to me that if Bristol had undertaken to
devote its production to bridge fabrication work which it had performed
in the past, the Board would hold that a question concerning
representation had arisen, even in the face of reconfiguration of the
plant and operational techniques.
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For at least the first 9 months of operation, Respondent basically
continued to perform precisely the kind of work that Bristol had done
(R. Exh. 6). Indeed, although Barnes testified that Respondent was
performing new, Williams-obtained bridge work as early as October 1987,
his letter to employees dated September 30, 1988, states that prior to
June 1988, when ``we were really able to turn full-time to the bridge
business,'' Respondent ``spent the first 2 months finishing Bristol
work; then took on familiar building work for other fabricators; and in
April-June, we fabricated the barge crane boom and the large truss
job.'' (Emphasis added.) This suggests that Respondent might still
return to building fabrication if the situation dictates.
In performing bridge construction work (which Bristol's employees
had also performed), Respondent hired almost exclusively former Bristol
employees who were assigned to tasks which brought into play the same
kinds of skills which they had learned and exercised in working for
Bristol.\8\ Given elemental facts such as these, filtered through the
protective attitude toward the successorship doctrine evinced by the
Supreme Court in Fall River, I conclude that the changes which occurred
under Williams, while not abstractly insignificant, would not likely
have affected the employees' attitude toward union representation.\9\
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\8\E.g., at the hearing, Respondent presented evidence that the
plant as rearranged by Williams now has 11 ``submerged arc welding
stations,'' while Bristol had none. But on cross-examination, the
General Counsel elicited the concession that the former Bristol welders
hired to man these stations had ``performed submerged arc welding as
employees of Bristol.''
\9\The record shows, as Respondent puts it on brief, that Respondent
``afforded fewer benefits'' than Bristol had. The loss of pension
contributions alone was surely meaningful to the employees, both to
those whose benefits had vested and to those whose benefits had not.
Since Virginia is a right-to-work state, and employees did not have to
pay dues to the Union, it seems fairly unlikely that they would have
been willing to give up better benefits with no compulsory costs
attached, or at least that any reasonable observer would have so
thought.
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B. Did Respondent Violate Section 8(a)(5) By Refusing to
Recognize the Union
The complaint alleges that Respondent violated Section 8(a)(5)
``[s]ince on or about October 1, 1987,'' when it failed and refused to
extend recognition to the Union, as requested by the Union ``[o]n or
about September 30, 1987.''
The duty to bargain ``is triggered only when the union has made a
bargaining demand.'' Fall River, supra at 53. There is a welter of
9
cloudy evidence here, and contentions are made on brief about the
meaning and effect of Union Representative Stephen Spains confusing
testimony\10\ and the allegations made in the various charges filed by
the Union with the Region; about an apparently inaccurate assertion made
by Spain in a letter written in February 1988 referring to a demand for
recognition he had allegedly made on Barnes in September; and about the
status of Barnes as an agent of Williams prior to October 1, 1987. I see
no need to delve into all this, however, because the record reveals
certain critical facts.
---------------------------------------------------------------------------
\10\General Counsel's characterization of Spains' testimony as
``clear'' is, to be charitable, off the mark.
---------------------------------------------------------------------------
One is found in Barnes' testimony that in July, Spain told Barnes
that he ``would like for Local 10 to represent the employees of the new
company'' and therefore requested Barnes to tell a Williams official
that ``he would like to have an opportunity to discuss, perhaps
negotiate with him.'' The second fact is Barnes' candid admission that
sometime between July 15 and September 30 he delivered this message to
Richard D. Geyer, president of the fabrications division of Williams
Enterprises, who was visiting the plant weekly during that period. Thus,
whether or not Barnes was considered an ``agent'' of Respondent during
this time, the fact is that he did convey Spain's request to the
principal responsible official of the Respondent, and Respondent's
silence clearly constituted a rejection of the request.
Respondent argues that Spain's message did not constitute a
``cognizable claim for recognition,'' citing K & S Circuits, Inc., 255
NLRB 1270, 1297 (1981), and Sheboygan Sausage Co., 156 NLRB 1490, 1500-
1501 (1966). While it is true that here, as in those cases, the Union
did not make reference to representing a ``majority'' of the employees,
that fact is logically immaterial in a context in which a demand may be
deemed to ``continue'' until a majority is reached in a ``substantial
and representative complement''; there are also other factors in the
cited cases which are not present here. The heart of the matter is that
prior to October 1 Spain communicated and Respondent received a demand
for bargaining which the facts subsequently justified as a matter of
law. Respondent's failure to even acknowledge the request was plainly
consonant with its considered determination, as discussed infra, to
operate the plant on a nonunion basis.\11\
---------------------------------------------------------------------------
\11\If it were necessary to consider the issue of Barnes' agency
status, I would conclude that he did become Respondent's agent at some
substantial time prior to the takeover date of October 1, although I
cannot say when. Barnes, who had been a manager of the plant since 1970,
was a pleasant and poised witness who made some admissions adverse to
Respondent, and it is with regret that I find it necessary to disbelieve
him on discrete issues. Nonetheless, I am unable to accept his testimony
that he was not offered employment by Williams until ``[j]ust a day or
two prior to'' October 1. Other evidence shows that he (as well as Plant
Superintendent Johnson) participated intensely in preparing with Geyer
for the takeover, in evaluating employees for future employment, and in
addressing employees about such employment. In the latter connection,
Barnes testified about an offer of insurance coverage to certain
employees on August 21 as follows:
[W]e didn't want to take a chance with the employees having a
break in insurance coverage . . . . [W]e had selected this group
of people and intended to offer them employment.'' These
locutions diminish Barnes' other testimony to the effect that at
the time it would have been ``they,'' not ``we,'' who were
concerned. A similar usage is found in the testimony of Johnson,
who told a more convoluted tale of having been offered employment
``sometime in August,'' but not having actually accepted until he
turned up at the plant on the very morning of October 1. Johnson
testified, in referring to the August 21 employee meeting, that
he told the future Williams employees, ``In our opinion, we could
not be competitive in the bridge fabrication market if we were
unionized,'' and so on, in a very possessive first-person-plural
10
vein. In my judgment, both Barnes and Johnson gave their quite
improbable testimony in an effort to avoid a claim that either
one became a Williams agent prior to October 1.
---------------------------------------------------------------------------
I recognize the problems in Spain's murky testimony, which at one
point indicates that sometime during the summer of 1987, Spain had
apparently concluded that the new owner was going to change the nature
of the enterprise so thoroughly that the Union could not claim
bargaining rights. If Spain did go through such a thought process, it
may be attributable to Respondent's silent rejection of his earlier
request for bargaining. In any event, even if there was a conscious
change of heart on Spain's part, it was not communicated to Respondent
(except for whatever speculative inference Respondent might have drawn
from Barnes' knowledge that Spain had collected authorization cards from
employees at a meeting), and the filing of 8(a)(5) charges in December
1981 and again in February 1988 served to reaffirm the Union's claim to
be the bargaining representative. See Fall River, supra at 53. (``The
Union, however, made clear after this demand that, in its view,
petitioner had a bargaining obligation: the Union filed an unfair labor
practice charge in November.'')
I conclude, therefore, that Respondent became the successor employer
to Bristol, required to extend to the union general bargaining rights on
or about October 15, 1987, when, it appears, Respondent's work force
consisted of about 39 employees, a plateau at which it thereafter
hovered.\12\
---------------------------------------------------------------------------
\12\Although Johnson and Barnes testified that they began operation
of the Williams enterprise on October 1 with the same 17 employees to
which they had pared the Bristol complement by September 25 (G.C. Exhs.
13 and 14 compared with G.C. Exh. 6) show at least 3 ``production''
employees hired by Williams on October 1 who had not been previously
employed by Bristol (Arthur Hansen, Grover Lawrence, and Wilbert
Vineyard). On October 5, according to the exhibits, 8 former Bristol
employees and 1 new employee (Edwin Anderson) were hired; on October 6,
7, 12, and 15, Respondent employed a total of 10 former employees, and
then did no more hiring until one old employee was engaged on November
30. There may have been a few quits in here, according to Barnes'
testimony.
---------------------------------------------------------------------------
The Respondent argues, however, that if, arguendo, it had a
bargaining obligation, that obligation would certainly have expired as
of December 31, 1987, when Barnes was presented with a petition signed
by 23 employees (out of 35, according to Barnes), stating that they did
not desire to be represented by the Union. General Counsel seeks to
hammer Respondent's shield into a sword by including an 8(a)(1)
allegation based on the manner of the petition's creation.
Barnes testified that on or about December 28, 1987, after the Union
had filed an unfair labor practice charge on December 14 alleging
violations of Section 8(a)(1), (3), and (5),\13\ he gathered the
employees so that he might read the allegations to them and explain
Respondent's position. Barnes testified without contradiction that when
he had finished and asked for questions, employee Jamison indicated that
he did not want to be represented by the Union and inquired what the
employees could do about that. Barnes told his audience that ``they
could get a petition together but that it had to be a petition that they
had framed themselves expressions exactly how they felt. . . . We told
them that it could be our defense . . . . I said we'd be glad to have
the pet1tion.'' On December 31, Barnes was presented with a petition
bearing 23 signatures and captioned ``We The Undersigned Employees of
Williams Enterprises Inc., Do not want to be Represented by the Local 10
Machinist Union For the Purposes of Collective Bargaining'' [verbatim].
---------------------------------------------------------------------------
\13\The charge was inexplicably withdrawn on January 25, 1988, and
then, for reasons which are equally impenetrable, refiled in
substantially identical language on February 4, 1988.
---------------------------------------------------------------------------
The complaint alleges that Respondent ``encouraged a petition
11
seeking the revocation of the Union's representative status and
authority to bargain on behalf of its employees,'' in violation of
Section 8(a)(1). General Counsel cites Good'N Fresh Foods, 287 NLRB 1231
(1988), but that case found a violation where a plant manager, acting on
instructions by the company president, approached an employee and asked
her to circulate a petition opposing union representation. Those facts
possess an intensity not present here. Respondent also cites precedents,
one on which is Indiana Cabinet Co., 275 NLRB 1209, 1210 (1985), in
which a Board panel majority reaffirmed the principles earlier
summarized in R. L. White Co., 262 NLRB 575, 576 (1982), and applied
them in a decertification petition case:
An employer may lawfully inform employees of their right to
revoke their authorization cards, even where employees have not
solicited such information, as the employer makes no attempt to
ascertain whether employees will avail themselves of this right
nor offers any assistance, or otherwise creates a situation
where employees would tend to feel peril in refraining from such
revocation.
In the present case, the evidence is that employee Jamison first
inquired about the methods available for dispatching the Union, and
there is no showing that Respondent offered assistance nor made an
effort to follow up on the progress of such a petition. While there may
be something to General Counsel's stress on Barnes' reference to using
the petition as a ``defense'' to the charges, I doubt on balance that
this spontaneous comment ``creates a situation where employees would
tend to feel peril in refraining from'' signing an antiunion petition.
See Indiana Cabinet, supra.
However, I agree with General Counsel that the petition is
``tainted'' by virtue of other conduct asserted by the complaint to
violate Section 8(a)(1) and which, I think, created ``a situation where
employees would tend to feel peril in refraining from'' signing the
decertification petition. The complaint contends that on August 21,
1987, Superintendent Johnson told employees ``that Respondent did not
want a union and that there definitely would be no union in the plant.''
The record shows that on the date alleged, Johnson and Barnes met with a
group of employees to announce that they had been selected for possible
employment by Respondent (as discussed more fully, infra). Employee Eric
Russell asked, at one point, whether Respondent would ``try to unionize
the people,'' and, according to Russell, Johnson said Williams
``definitely'' did not want a union. Employee Gable Bullock Jr. also
testified, more expansively, that Johnson said that ``Williams is not
going to have a union and he don't believe in unions.''
Barnes willingly conceded that ``we also made a statement to the
effect that Williams did intend to operate the Richmond plant as a
nonunion plant.'' This was not pure speculation on the part of Barnes,
who told us that Frank E. Fabrication Division President Geyer had
``made it very clear'' to him that they did not intend to operate with
the Union and had asked him ``to convey that to the employees. The fact
that the statement was made in response to a question on August 21 thus
appears to be happenstance.
A statement to prospective employees that a successor employer will
not have a union in the plant has been held violative of Section
8(a)(l). Kessel Food Markets, 287 NLRB 426, 430 (1987); Potter's Chalet
Drug, 233 NLRB 15, 20 (1970), enfd. mem. 580 F.2d 980 (9th Cir. 1978);
and Love's Barbeque Restaurant No. 62, 245 NLRB 78, 124 (1979), enfd. in
pertinent part 640 F.2d 1094, 1097-1098 (9th Cir. 1981). As tbe court of
appeals in the last cited case commented, ``One reasonable inference
from the remark is that the Restaurant would remain nonunion in the
future.'' Such an implication naturally conveys to employees the notion
that any conduct by them which is not consistent with that cause may
jeopardize their employment possibilities or security. Johnson testified
that he explained the Respondent's position by saying that the company
``could not be competitive in the bridge fabrication market if we were
unionized.'' In my view, however, such an unsupported ``explanation''
simply drives home to employees the utmost seriousness of the employer's
12
opposition to unionization.
While I have suffficient doubt about the powers of recollection and
concentration of most of General Counsel's friendly witnesses as to
seriously question whether they were told on August 21 that Respondent
``definitely'' did not want to deal with or ``is not going to have'' the
Union, the admission by Barnes about the statement, directed by Williams
and Geyer to be communicated to employees, that Respondent ``did intend
to operate the Richmond plant as a nonunion plant,'' suffices, I think,
to bring it within the case law cited above. Furthermore, while those
cases address the situation of an employer telling employees of the
intended nonunion status before they are hired, it seems obvious that
the coercive effect of such a pronouncement would linger after hiring
has taken place. I find that the statement not only violated Section
8(a)(1) when uttered, but also may reasonably be thought to have had an
unacceptably constraining effect on employees who were thereafter asked
to sign an antiunion petition about which the plant manager had effused
as presenting the basis for a ``good defense'' which ``we'd be glad to
have.''
I conclude, therefore, that the petition cannot be used to vitiate
the bargaining obligation which arose in October. Apart from the
foregoing analysis, moreover, that conclusion is seemingly compelled by
the second paragraph of footnote 18 of the Fall River case, 482 U.S. at
51. Although here there is no direct evidence to ``suggest'' that the
refusal to bargain undermined employee support for the Union, I do not
think the Court meant to require the production of evidence of such a
nexus (indeed, the suggestive evidence to which the court alludes--an
employee's testimony that the petitions were ``signed out of employees'
fear that the Board proceeding might delay an expected wage raise''
seems not only unusually subjective but also beyond the capacity of any
single witness). See Sterling Processing Corp., 291 NLRB 280, 282 fn. 11
(1988).\14\
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\14\The Board has held that an employer may rely on a petition
``apparently signed by a majority of its employees as a basis for good
faith doubt even though the employer did not authenticate the
signatures,'' Harley-Davidson Transportation Co., 273 NLRB 1531, 1532
(1985). Although, for the reasons given, the rule is irrelevant here, it
might be argued that this doctrine opens the door to considerable
mischief and unwarranted disruption of industrial stability. In the
present case, for example, there is a basis for entertaining doubts
about the petition. Aside from the fact that the wording (as opposed to
the writing of the caption does not seem to have likely originated with
any of the poorly educated workingmen of the sort who appeared before me
(and who were said by Barnes to be representative of their peers the
``signature'' of ``Alva H. Mayhew'' is significantly unlike another
signature sample of Mayhew which is in the file (G.C. Exh. 12(g)).
---------------------------------------------------------------------------
C. Did Respondent Violate Section 8(a)(5) by Unilaterally
Changing Terms of Employment
The remaining 8(a)(5) allegation pertains to the unilateral changes
in wages and working conditions made by Respondent when it commenced
operations on October 1. Respondent concedes that it altered many such
terms of employment, mostly or the worse.
The question turns upon some troublesome language in Burns Security
Services, supra, and the Board's subsequent struggle to find its
meaning. In generally approving the doctrine of successor employer in
Burns, the Court stated (406 U.S. at 294-295):
Although a successor employer is ordinarily free to set initial
terms on which it will hire the employees of a predecessor,
there will be instances in which it is perfectly clear that the
new employer plans to retain all of the employees in the unit
and in which it will be appropriate to have him consult with the
employees' bargaining representative before he fixes terms.
13
In Spitzer Akron, Inc., 219 NLRB 20, 22 (1975), enfd. 540 F.2d 841
(6th Cir. 1976), the Board construed the reference to retaining ``all''
employees as not really meaning ``all,'' but only a planned retention of
a majority of the old employees in the new unit at the appropriate time
for counting heads. But, in Spruce Up Corp., 209 NLRB 194, 195 (1974), a
plurality of the Board had mused over the ``perfectly clear'' language
(which it calls a ``caveat'') and reached the following conclusions:
When an employer who has not yet commenced operations announces
new terms prior to or simultaneously with his invitation to the
previous work force to accept employment under those terms, we
do not think it can fairly be said that the new employer ``plans
to retain all of the employees in the unit,'' as that phrase was
intended by the Supreme Court. The possibility that the old
employees may not enter into an employment relationship with the
new employer is a real one, as illustrated by the present acts.
. . . .
We believe the caveat in Burns, therefore, should be restricted
to circumstances in which the new employer has either actively
or, by tacit inference, misled employees into believing they
would all be retained without change in their wages, hours, or
conditions of employment [footnote omitted], or at least to
circumstances where the new employer, unlike the Respondent
here, has failed to clearly announce its intent to establish a
new set of conditions prior to inviting former employees to
accept employment.
The thrust of this exegesis seems to be that if a successor employer
warns employees, before he asks them to work for him, that he intends to
change working conditions, then he is not bound to bargain with their
union representative about such changes; but if he ``invites'' them to
work for him and then, perhaps in the next day or two, tells them of his
intention to alter conditions, he is bound to bargain about such
alterations (despite the fact that some or all of the employees may not
wish, after learning the new terms, to ``enter into an employment
relationship with the new employer''). Nonetheless, ``[s]ince Spruce Up,
the Board has adhered to this distinction based on when the successor
employer announces its offer of different terms of employment in
relation to its expression of intent to retain the predecessor's
employees unless the successor has misled them.'' Fremont Ford Sales,
289 NLRB 1290, 1295 (1988).
Respondent lays claim to having prevented the obligation to bargain
over initial terms from attaching by pointing to the testimony of Barnes
and Johnson concerning the employee meeting on August 21. The evidence
shows that by that date all 83 Bristol employees had filed applications
for employment with Williams; they had been reviewed and rated (either
once (Barnes) or twice (Johnson), see infra): and about 44 workers had
been classified as likely employees of the new enterprise. At one of two
meetings on August 1, Barnes met briefly with the group he referred to
as those who ``were not going to be to considered, in the near future,
at least,'' to apprise them of their fate, and then Barnes joined
Johnson, who was addressing the other 44, here called by Respondent
``the favored group being considered for potential hire.''
Johnson testified that he told the favored employees that, if hired,
they would be performing multiple functions; he mentioned that under
Williams, employees would not have to wear hardhats, as they had to at
Bristol; he explained to them that the insurance carrier would be
Allstate, that the plan would no longer be an HMO, that different
deductibles would apply, and that Williams, unlike Bristol, would pay
all premiums; and he spoke of vacations, differences in holidays, and
the fact that there would be no midafternoon break as Bristol had
allowed. Barnes and Johnson both testified that when Barnes arrived at
the meeting of the favored he read to the employees a list of the
Williams-provided benefits that had been supplied him by Geyer (in
evidence as G.C. Exh. 2 (a)).
14
Of the four employee witnesses who were present at the meeting, two
testified about this subject. Former employee Bullock did not ``remember
Mr. Johnson'' saying anything about ``the wages and benefits'' to be
afforded Williams employees, and exemployee Russell did not ``know'' and
could not ``recall'' whether any mention of benefits was made during the
meeting.
I did not feel that any of the employee-witnesses intended to be
deceitful, but I also found their testimony to be generally unreliable--
they displayed, for the most part, dreadful powers of recollection and a
regrettably low level of educational background and intellectual
sophistication. The testimony by Bullock and Russell on this score
scarcely amounted to firm declarations that nothing was said about
changes in terms of employment on August 21, and, as Respondent argues
on brief, logic dictates that benefits would have been the subject of
discussion in a meeting of employees likely to be hired which, Bullock
recalled, lasted some 20-30 minutes. The only real problem I find with
Respondent's version stems from the testimony of Johnson that one
employee who was hired effective October 1 quit on the second day
because of dissatisfaction with the benefits. This suggests that he had
not previously been made aware of Williams' terms of employment, but it
is also possible that he did not pay attention or comprehend.
Accordingly, I find no reason to discredit the testimony of Barnes
and Johnson on this issue. Despite this conclusion, it strikes me as
quite arguable that, on August 21, it could be considered ``perfectly
clear'' that Respondent intended to staff its plant with an overwhelming
majority of former Bristol employees. Respondent planned to hire
somewhere around 40 employees; the group of 44 addressed by Barnes and
Johnson on August 2l was the product of a careful evaluation by
Respondent (according to Barnes, he had even asked several of the
tentatively chosen employees, prior to August 21, if they would accept
wage reductions): and it would have seemed almost beyond doubt that a
majority of the initial hires by Respondent would be from the Bristol
work force nonetheless, applying the language of Spruce Up, the evidence
shows an announcement of ``new terms . . . simultaneously with [an]
invitation to the previous work force to accept employment under those
terms,'' and here there were no ``circumstances in which the new
employer has either actively or, by tacit inference, misled employees
into believing they would all be retained without change'' in conditions
of employment or in which the employer ``has failed to clearly announce
its intent to establish a new set of conditions prior to inviting former
employees to accept employment.''
This being so, I am unable to conclude that Respondent was obligated
to bargain with the Union prior to putting the new terms and conditions
of employment into effect.\15\
---------------------------------------------------------------------------
\15\Fremont Ford, supra, relied on by General Counsel, seems to be
grounded on a whole bevy of actors which distinguish that case from this
one.
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ii. the alleged unlawful discrimination
The amended complaint alleges that Respondent unlawfully
``terminated the employment of, and/or refused to hire'' Gable Bullock
Jr. and Melvin Deloatch after it took possession of the Richmond plant
on October 1. Bullock had worked for Bristol since 1968 and was, at the
time of the takeover, a fitter leadman; he had also been a shop steward
for about 7 years and the chief shop steward for 3-1/2 years. Deloatch
began work in 1975 and eventually became a fitter first class; he had
been by October 1987 a shop steward for about 2 years. The third
steward, Willo Wilkins, had held that position since the 1970's and had
been employed at the plant since 1960; unlike Bullock and Deloatch,
Wilkins was hired by Williams.
Barnes and Johnson described the hiring process as follows: They
were informed of the sale of the plant at a July 13 meeting at which
Frank Williams Jr. and a Bristol representative were present. At that
time, they were given applications for employment with Williams to hand
15
out to the employees, which they did at a meeting on July 14. All 83
employees turned in applications. According to Barnes and Johnson,
President Geyer then gave them a computer list of the employees who had
filed applications and asked Johnson to evaluate them. Johnson did so,
purely on the basis of skill in their classifications, assigning each
employee a grade of 1 (the worst) to 5. Barnes reviewed Johnson's list,
and then they turned the evaluations over to Geyer.
At this juncture, there is a sharp divergence in the accounts of
Barnes and Johnson. Barnes testified that Geyer established a figure of
about 40 people that he ``thought they might need'' a ``pie in the sky
type number,'' and then Johnson broke that number down into the types of
skills''--``they would be needing so many fitters, so many welders, so
many this, that, or the other. And then the rating system was used to
fill that roster, that number.'' Elsehere, Barnes testified that the
``original selection of some 43, 44 employees'' was ``based entirely on
skills,'' that he and Johnson had no other ``input'' into the selection
process except for this skill rating, and that it was only after this
selection that he and Johnson ``expanded'' their thinking to look at
``the whole picture'' of prospective employees at the end of October,
when nearly 40 employees had been hired.
Johnson testified, however, quite differently: that after the skill
ratings were made, Geyer gave him 5 criteria for selecting the 43 or 44
names: skill level, job knowledge, multiple capabilities, adaptability
to change, and average cost per hour (to be kept below $9). Johnson said
that he ``and Mr. Barnes'' applied these criteria in selecting 44 or so
names.\16\
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\16\In stating twice on brief that Barnes was not involved in the
selection of Williams' employees, Respondent is implicitly discrediting
this testimony of Johnson's.
---------------------------------------------------------------------------
Respondent probably is not interested in noting such inconsistencies
between its witnesses, and on brief recites only Johnson's account.
General Counsel points out this disparity, but for his own purposes,
prefers Johnson's version. Although Johnson's two-step procedure seems
rather awkward, I cannot think why he should have manufactured it, and I
shall therefore assume that it was in fact the way that the list was
reduced to 44 names.
Throughout the hearing, Barnes and Johnson took the position that
the 44 employees who were selected were told that they had been only
chosen ``for consideration'' for later employment. There is employee
testimony, however, that the 44 were informed on August 21 that they
were in fact hired. The evidence also shows that the two alleged
discriminatees, Bullock and Deloatch (and, I assume, all other members
of the group), were afforded coverage under Williams' group insurance
plan for November. The record further discloses that, of the 44
employees, 6 others in addition to Deloatch and Bullock received letters
from Respondent dated November 4, 1987 (prior to the filing of the first
charge), which stated that while Respondent had previously told the
addressees of ``its belief that it would be able to hire you within the
first month or two'' of startup, it had come to realize that the work
force would not be expanded in the coming months, and the employees
should seek work elsewhere.
For reasons earlier given, I am not inclined to rely on the employee
testimony that they had flatly been told that they were hired. They did
not receive pay after being laid off in September, and although they
were given insurance coverage, my guess is that this was done to
encourage their availability. On the other hand, I suspect that the
employees were led to believe that they would be hired; but since they
were not actually taken onto the Williams' payroll as of August 21, I
think they should not be considered ``employees'' until they were
actually put to work. The question still remains whether Bullock and
Deloatch were subjected to unlawful discrimination in Williams' hiring
process.
The largest category of workers employed by Bristol had been
``fitters'' of various kinds: trainees, second class, first class,
leadman, utility\17\ (and one classification containing one employee,
16
called ``Fitter 2nd class & Painter,'' according to G.C. Exh. 6, a
company prepared printout about which I have some doubts; see, e.g., the
confusing entries as to Michael T. Stiltner, p. 2)\18\ these 20
individuals, all of whom applied in July 1987 to work for Williams, only
4 were apparently available and not hired by March 7, 1988: Chief Union
Steward and Fitter Leadman Bullock, Union Steward and fitter first class
Deloatch, Fitter Leadman Eric Russell, and fitter trainee William F.
Branch Jr.\19\
---------------------------------------------------------------------------
\17\The highest rating for a fitter.
\18\While General Counsel states on brief that Stiltner was hired
(p. 52, fn. 42), I think that is one of the more unlikely possibilities
available to explain G.C. Exh. 6.
\19\I exclude here five employees: Calvin McCauly, who quit on July
31, 1987; Michael Stiltner, whose data, as noted, is not consistent;
Arcellious Demery, who resigned on August 29, 1987; Anthony Little, who
quit on September 4; and Robert Shaw, who quit at some unidentified
time. While I have included William F. Branch as ``apparently
available,'' in fact the record contains no evidence as to Branch one
way or the other.
---------------------------------------------------------------------------
Gable Bullock received the highest possible skill rating of 5 when
evaluated by Johnson and Barnes, and he was also included in the list of
44 employees whom Respondent was favorably disposed to hire. Bullock
testified, without controversion, that when he was first told by Barnes
in July about the sale of the plant, Barnes responded to the distressed
look on his face by saying that Bullock had ``nothing to worry about,''
considering his length of employment and his experience. Yet Bullock was
not hired, although several other employees in the fitter category who
had received considerably poorer evaluations than Bullock thereafter
were hired.
Thus, Dean Glover, a fitter trainee who received a 4-rating but was
conceded by Barnes to be ``one of the least experienced and least
qualified fitters'' employed by Bristol, was hired on October l;
Roosevelt Peoples, a first-class fitter rated as a 3 and not included in
the select group of 44 was nonetheless hired on February 8, 1988;
Linwood Burchette, a second-class fitter rated as a 2, who did not
survive the cut to 44, was hired on February 23, 1988; William Johnson,
rated as only a 1 in the fitter first-class category and not deemed
eligible for favorable consideration was hired anyway on March 7, 1988;
and that same day also saw the employment of Raymond Seward, who was
rated only l as a ``fitter second class & painter'' and who was excluded
from the selection of the 44 eligibles. On the face of this competition,
Gable Bullock, a fitter at the plant or 20 years, should have seemed a
shoo-in. But months after a charge had been filed alleging the failure
to hire Bullock and others as discriminatory, Respondent was, as shown
above, hiring former fitter employees rated as low as 1 and 2 and 3 and
who were not in August even deemed worthy of further favorable
consideration, while ignoring Bullock.
How does Respondent explain this treatment of the experienced former
leadman Bullock. Not very well, it seemed to me. At the beginning,
Barnes and Johnson seemed to dig somewhat of a hole for themselves. When
called on the first day of hearing as adverse witnesses and asked why
Bullock was not hired, Barnes and Johnson said, respectively, ``We
didn't need him'' ``No other reason,'' and ``We didn't need his services
at the time'' ``No other reasons.''
On the following day, when testifying for Respondent, Johnson was
asked on direct why Bullock has not been hired by Respondent and replied
consistently, ``I don't need him.'' This time, he was asked what he
meant by that response, and his reply resonated of ``I don't need him
like I don't need a toothache.'' Johnson said, ``Well, his not being a
team player. He'd not been adaptive to change, and we have changed this
plant . . . . He won't work with other people when you give him people
in his position as a leadmen . . . . He's still very resentful that the
company is trying to get down on him . . . . It is my firm belief that
neither Johnson nor Barnes (who were present for each other's testimony)
would normally have used the phrase ``I don't need him'' in this
17
particular querulous sense, and that there was a clear shift of
explanation from the first to the second day.
Johnson's complaint about Bullock's not being ``adaptive to change''
is not, wholly inconsistent with his earlier testimony that one of the
qualification factors he and Barnes used for the final screening to 44
was ``adaptability to change,'' but it would seem that since Bullock was
included in the final group, either his adaptiveness was not thought a
serious problem or he was outstanding in one or more of the other areas.
Bullock's demotion from fitter supervisor, a job he had held in the
early 1980s or about 2 years, to fitter leadman was stressed by Johnson.
Bullock testified that the demotion was simply a reorganizational move,
but Johnson said it was disciplinary, based primarily on Bullock's
refusal to perform light duty while recovering from a back injury. The
question is close, but I tend to consider that Johnson's story is more
likely a fabrication than Bullock's. Johnson's version amounts to
nothing less than outright insubordination on Bullock's part, which
presumably would have called for more rigorous discipline by Respondent
than mere demotion. Bullock's story--that he was promoted to supervisor
when another named supervisor was assigned to a special job, then
demoted when the job ended and the supervisor returned--seemed capable
of documentary or testimonial rebuttal, but Respondent offered none.
However, even if I err on this resolution, which is hardly beyond
the realm of possibility, the act remains that Bullock was still listed
as a skill level and included on the list of 44 while 4 others in the
fitter category who were later hired had skill levels as low as 1 and
did not otherwise in some manner counterbalance those low ratings so as
to gain admission to the favored list in August.
Respondent's witnesses offered reasons why they hired the former
employees who, on paper, do not appear to come close to replicating the
wealth of skill and experience accumulated by Bullock. Dean Glover, a
fitter trainee who had worked for Bristol only since January 1986, rated
as a 4 and put on the list of 44, was, as noted above, conceded by
Barnes to be ``one of the least experienced and least qualified
fitters.'' He was thought by Johnson, however, to be a ``young bright
kid that had a lot of potential,'' and Johnson emphasized that he could
``keep good records. His handwriting was legible and, you know, I
could--when he brought the shipping list in to me, I could read what he
was putting down, you know, for a change.''\20\ Since the work which
Johnson had assertedly wanted Bullock to perform while recovering from
his back injury in the early 1980's was to ``keep the paperwork, keep
the timecards and stuff,'' it would seem that Bullock's clerical
qualifications were also adequate. Johnson noted that Glover's salary
was only $7.79 per hour, which may be compared to Bullock's $9.55. If
the $70.40 difference per 40-hour workweek was really important to
Respondent, it may be pointed out that no offer of a job at a lower rate
was made to 20-year veteran Bullock, although he and other employees had
been asked to take a wage decrease.\21\
---------------------------------------------------------------------------
\20\Johnson testified that Glover, even though classified as a
fitter trainee, was instead ``working in our finish department, loading
out steel, finishing up Bristol Steel contracts.'' He presumably
referred to Glover's assignment right at the end of September 1987.
\21\Respondent's brief states that Johnson asked certain employees,
including Bullock, to agree to a wage reduction prior to August 21, and
that only three of those, not including Bullock, ``agreed to the
reduction.'' In fact, Johnson testified that he recalled asking ``some''
employees, naming Bullock, Mayhew, Jamison, Wriston, and Russell (the
ones who then came to mind) if they would take a pay cut. Johnson did
not testify to their replies; he only stated that he could think of
three--Mayhew, Jamison, and Hill--who did, after Williams took over,
have their Bristol wage reduced. Thus, it is an error to state that the
record shows that Bullock refused to consider a reduction.
---------------------------------------------------------------------------
As to the 4 low-rated, non-44 exfitters hired by Respondent
beginning February 8, l988, Johnson advanced reasons for preferring each
to Bullock. Roosevelt Peoples, ranked a 3 in his classification as a
18
first-class fitter, was, Johnson said, not hired for his fitting
ability: he was a ``good crane operator'' and takes over when one of the
regular crane operators is out. When he is not so substituting, Peoples
operates a drill and helps put the laydown together. But according to a
document produced by Respondent--a ``List of Production Employees As Of
1/14/89'' (G.C. Exh. 14, p. 2)--Peoples' ``Primary'' classification is
``Fitter 1/c.''\22\
---------------------------------------------------------------------------
\22\Johnson testified that a number of former Bristol
classifications have either disappeared entirely or been reduced in
number. However, while he said that there was no longer a ``Material
Controller'' as of January 28, 1989 (the date of his testimony), the
exhibit referred to above shows that Stuart Hill was classified as
``Matl Control'' as of January 14, 1989. Despite this, Johnson testified
that Hill was hired (on November 30, 1987, according to G.C. Exhs. 13
and 14) ``as a fitter''; while Johnson testified that Hill's pay as a
fitter was ``down $3 to $4'' from the $10.15 per hour he received as a
material controller, G.C. Exh. 14 shows Hill earning $9.34 per hour as
of January 14, 1988. No reason was proffered as to why the former
material controller was preferred as a fitter (taking Johnson's
testimony as accurate) over Bullock.
---------------------------------------------------------------------------
Johnson's explanation of the reason for hiring Peoples is not
controverted, and it is quite possible that a substitute crane operator
was thought to be imperative.\23\ But one must wonder why Respondent
waited until February 8, 1988, to fill this need. More puzzling than
Peoples, however, were the hires of 2-rated Linwood Burchette on
February 23, l-ranked William Johnson on March 1, and 1-ranked Raymond
Seward on the same day. Like Peoples, none of these 3 had made the list
of 44.
---------------------------------------------------------------------------
\23\Peoples' application shows that he worked for almost 2 years as
a crane operator for Bristol before leaving in 1979 (and then returning
as a fitter in 1985).
---------------------------------------------------------------------------
Johnson's rationale for Burchette's hire was less than convincing.
Despite Burchette's rating of 2 and his exclusion from the favored list,
Johnson called him ``a good employee.'' But his other testimony made
clear that Burchette was a rather limited worker. As a Williams'
employee, Burchette was assigned to a jig which had control points ``so
you didn't have to do a lot of measuring and a lot of dimensioning''--
``all he had to do was take a piece, like putting a puzzle together, and
everything was controlled, and he could do that well.'' William Johnson,
ranked as a skill level 1, and not even worth considering at first,
became at the hearing a ``good team player'' who ``in a controlled
atmosphere working with somebody else'' is ``a great fitter.'' Seward,
however, was not ``hired for his fitting abilities'' but was employed to
``fill in in case my painter doesn't show up.'' Since filling in on days
that the painter fails to arrive is not a full-time occupation, and
since Seward is not classified as ``Fitter 2/c & Painter'' (G.C. Exh.
14, p. 2), I assume that his regular duties encompass fitting.\24\
---------------------------------------------------------------------------
\24\Barnes testified that ``right now'' Seward is doing a helper's
job involving grinding (``very nasty and dirty''), which is work that
``all fitters'' and ``everybody in the shop'' do.
---------------------------------------------------------------------------
Thus, there are 4 fitters who were considered unworthy in August
1987 of even being given a chance but who somehow wound up on Williams'
payroll (and one former Bristol material controller who, according to
Johnson, is now a Williams fitter), while Bullock, who was rated as
possessing top-grade skill and who was assigned to the top 44 after
assessment under the second set of standards, has never been offered a
job. The reasons given for preferring the others to Bullock, while
perhaps in the case of Peoples and Seward not without some weight, do
not generally impress. It does not say much to explain that Burchette
and Johnson were capable of working in a ``controlled'' environment;
surely Bullock could do that and more\25\ (we have no explanation of the
19
preference for former material handler Hill over Bullock).
---------------------------------------------------------------------------
\25\Johnson testified that a fitter ``must be well versed in a lot
of different aspects of different jobs.''
---------------------------------------------------------------------------
As earlier noted, of the 15 individuals in the fitter category who
did not quit (or whose record, Michael Stiltner is unclear) only
Bullock, Deloatch, Fitter Leadman Eric Russell, and fitter trainee
Branch did not come to work for Williams. Branch had apparently been
hired in September 1986 (see G.C. Exh. 12 (p)), was rated a 3, and did
not make the select group of 44. Russell, however, was graded as a 5 and
was included in the group, and the question of why Russell was not hired
is a good one for Respondent to pose.
Johnson gave as the reason that Russell was ``a troublemaker, more
or less'' who had once been terminated for fighting and was ``very
abusive in talking to other employees.'' It seems odd, if this were
true, that Russell was allowed to work for Bristol as a leadman until he
was terminated, and, just as odd, that this known history did not cause
him to be excluded from the 44-man list. While Russell is not named as a
discriminatee in this complaint, I cannot help but notice that he was
the employee who inquired at the August 21 meeting if there could be a
union under the Williams regime. Although Barnes testified that he could
not recall who asked this question, it is not unreasonable to think that
such an inquiry would weigh against Russell's chances of employment by
an employer which wanted it made ``very clear'' that it intended to
operate without a union.
I further note Russell's testimony on cross-examination that Johnson
spoke to him before October 1 about lowering his pay rate from $9.55 to
$8.35 in order to work for Williams. Russell protested, saying that such
a decrease would be ``unfair.'' Later, Johnson told Russell that his
rate would not be cut. It could be that, in not hiring Russell, the pay
problem and Russell's perceived discontent about a lower wage was
dispositive.
Respondent also points out that it did hire Willo Wilkins, the third
union steward. General Counsel points out in return that Wilkins was the
only operator of the Linde burner. I might add that although the Linde
burner is now less than one-third its former size, Wilkins still spends
perhaps 90 percent of his time operating it, and before Respondent
turned more fully toward bridge construction in June 1988, Wilkins
likely was wholly occupied with the Linde.
Taking into account Respondent's seriously strong desire to avoid
unionization,\26\ the conflict between Barnes and Johnson on as
seemingly straightforward a matter as the creation of the list of 44
employees, the questionable explanation of how some low rated and
initially rejected employees came to work or Respondent while the high
rated and initially accepted Bullock never did, the assurance given to
Bullock by Barnes on July 14 that he had nothing to worry about with
respect to employment by Williams, and the other circumstances discussed
above, I am persuaded that the failure to hire Bullock as grounded in
his status as a union leader.\27\
---------------------------------------------------------------------------
\26\As exemplified by the deliberate conveyance to the employees of
Williams' intention not to operate a union shop, as well as the keen
interest displayed in the union sympathies of prospective employee
Wilbert Wall, discussed infra.
\27\General Counsel uses, but does not come to grips with the
implications of, the inconsistency in the facts that Barnes and Johnson
gave good marks to Bullock, but then never hired him. I can only think
that their evaluations in July and August were honest, but that they
were thereafter directed by their new Williams supervisors to weed out,
to the extent possible, potential union activists.
---------------------------------------------------------------------------
It might be said to follow, as General Counsel urges, that the
failure to hire Steward Melvin Deloatch requires the same conclusion.
Deloatch's case, however, presents factual distinctions.
Deloatch, as earlier noted, commenced employment at the plant in
1975 and eventually became a first-class fitter. He had been a shop
20
steward for 2 years when Bristol closed down in September 1987.
Deloatch's tenure at Bristol had been less than placid. He was
repeatedly warned and suspended for absenteeism and finally terminated
in November 1980, but was rehired a week later (with loss of seniority).
Then, after continuing his delinquent ways, he was eventually terminated
again in 1984, but, after a grievance was filed, he was reinstated with
a loss of pay. Deloatch's absenteeism did not abate, however, and he was
warned in June 1986 that he was in peril of receiving a third warning
notice. It does not appear that any further discipline was imposed on
Deloatch between that time and his termination in September 1987.\28\
---------------------------------------------------------------------------
\28\While Johnson testified that Deloatch had been discharged three
times, I can find evidence of only two discharges in R. Exh. 7, the
documentation of Deloatch's disciplinary record.
---------------------------------------------------------------------------
In preparing the skill ratings, Johnson and Barnes rated Deloatch as
a 4, but he was not initially included in the group of 44 favored
employees. A few days after attending the meeting of the disfavored
employees on August 21, Deloatch approached Johnson and Supervisor
Stiltner to complain about having been so disqualiied. According to
Deloatch, ``[a]bout the next day'' Johnson asked him if he had found a
job yet. Deloatch said no, and Johnson said, ``You got a job with
Williams then,'' adding that his pay would stay the same and the
insurance would be similar to Bristol's. At that point, Deloatch
testified, Supervisor Stiltner came up and asked if Johnson wanted
Stiltner to ``sign [Deloatch] in,'' but Johnson said he would take care
of it.
Johnson testified that when Deloatch approached him, Johnson told
him he would see what he could do, and then spoke to some of the
supervisors. He asked them to say, given a choice of Deloatch or another
individual (whom Johnson could not identify at the hearing), which
person they would rather have ``for what they can do and the abilities
that they have.'' Stiltner said he would ``just as soon have'' Deloatch,
and Johnson thereupon told Deloatch that he was putting his name on the
list of ``possible hires'' but with no guarantees.
Johnson testified that ``a major reason'' for not thereafter hiring
Deloatch was his disciplinary record, and also said that ``one reason''
was his rating of less than 5. He testified that after the initial
Williams team was put in place, he reviewed the status of operations and
was ``pleased'' with the members of the team, their cooperation, and
their lack of disciplinary problems. In judging unhired exemployees to
see if they would ``fit in with the team,'' he thought Deloatch's record
made him not ``desirable to play on this team.''
Although I had my doubts about parts of Johnson's testimony,\29\ I
also had no strong feeling about Deloatch's reliability, and I therefore
have some questions whether Johnson told him in August that he ``[had] a
job with Williams,'' or that anything was said about ``signing in'' at
that stage of the game, which seems implausible if, as Deloatch thought,
the reference was to being hired.
---------------------------------------------------------------------------
\29\I have already noted Johnson's unlikely claim that he did not
accept the Respondent's offer of employment until he showed up for work
on October 1. I also thought that Johnson patently dissembled when,
after testifying that he had told the favored group on August 21 that
Williams ``deserved a chance to show what kind of company the employees
would be working for,'' he said that this statement bore no relationship
to his pronouncement that Respondent ``intended to work as a nonunion
shop.'' I find it very hard to conceive that Johnson believed that
employees who would presumably be thought anxious about the continuity
of their employment would also abstractly need to be urged that their
potential new employer ``deserved a chance to show what kind of
company'' it would be; the only referent which makes sense of this
statement is the factor of unionization. This conclusion is pointed up
by Bullock's testimony that what Johnson asked was for the employees to
give Williams ``a year,'' and by Willo Wilkins' unrebutted testimony
that at a meeting held after October 1, President Geyer said that the
Respondent ``would prove to us that we didn't need the Union.''
21
---------------------------------------------------------------------------
While Deloatch's rating of 4--high, but not the highest--and his
initial exclusion from the list of 44 argues in Respondent's favor here,
the fact is that Deloatch did prevail on Johnson (with the approval of
Supervisor Stiltner) to reverse that exclusion decision and to afford
Deloatch active consideration as an employee, at a time when Johnson
knew, quite as well as he knew a few months later, that Deloatch's
absenteeism record had not been good in the past.\30\ Johnson had time
to reflect on this record, he spoke to supervisors about the issue, he
concluded that it would be appropriate to hire Deloatch (instead of a
certain other employee), and he told him so. Despite this consideration,
this 12-year veteran was, as in Bullock's case, ignored in favor of
fitters with low ratings who had never made the list of eligibles.
---------------------------------------------------------------------------
\30\As indicated, however, Deloatch's last threat of a warning
notice had been received over a year before. His performance had
evidently improved since June 1986.
---------------------------------------------------------------------------
In my opinion, counsel for General Counsel has made a sufficient
showing, on the record as a whole, that a ``motivating factor'' in the
decision not to employ both Bullock and Deloatch\31\ was their known
connection with the Union, and that the Respondent has failed to
demonstrate that the same actions would have been taken in the absence
of this protected conduct. Wright Line, 251 NLRB 1083, 1089 (1980),
approved in NLRB v. Transportation Management Corp., 462 U.S. 393
(1983). I would not say that this is the strongest case of an 8(a)(3)
discrimination in the annals of Board law. The ultimate standard,
however, is whether the Government has proved its case by ``a
preponderance of the testimony taken.'' Section 10(c). The Court of
Appeals for the Sixth Circuit, in Jim Causley Pontiac v. NLRB, 675 F.2d
125, 127 (1982), defined this standard as meaning ``more likely so than
not so.'' That test, I think, has been comfortably met here.
---------------------------------------------------------------------------
\31\Respondent's brief asserts that nine employees, including
Bullock and Deloatch, received rejection letters in November even though
they had been placed on the favored list in August, and argues that
there is ``no basis for assuming that seven of the nine were rejected
through a legitimate exercise of management discretion, but that the
other two--Deloatch and Bullock--were rejected for a different reason.''
I am engaging in no particular assumptions about the legitimacy vel non
of the initial rejection of the other employees (who actually numbered,
in spite of testimony to the contrary, six rather than seven; see G.C.
Exh. 6). It may be noted that of the remaining six, one as Wilbert Wall,
who, Respondent claims had been included on the favored list ``by
mistake,'' see G.C. Exh. 6, p. 1 (but was, as discussed hereafter,
nonetheless subsequently invited to work); another was Michael Stiltner,
who, as earlier described, apparently quit before October 1, although
his situation is less than clear; a third is Milton Burchette Jr., who
was subsequently hired in March 1988; the fourth was Maryland Wiggins,
hired February 22, 1988; the fifth was Eric Russell, already discussed;
and the last was Claude K. White, about whom we know only that he was a
welder first class who received a rating of 5.
---------------------------------------------------------------------------
Respondent argues, however, that any decision regarding Bullock and
Deloatch which is based on evidence relating to hires in the first few
months of 1988 cannot be squared with a complaint alleging a
discrimination date of ``on or about October 1.'' The foregoing analysis
does, concededly, substantially rely on hiring in 1988. But drawing an
inference from that hiring does not necessarily mean that the
discrimination did not take place until February or March; it says no
more than that the 1988 hiring constitutes some of the proof tending to
show that a discriminatory motivation was at work.
At the hearing, Respondent objected to the admission of a certain
list of hired employees (G.C. Exh. 13). But reference is made here only
to hires on that list about whom Johnson and Barnes specifically
testified. There is no prejudice to Respondent from this procedure; the
point General Counsel was attempting to make was quite clear, and
22
Respondent had the opportunity to answer it fully.\32\
---------------------------------------------------------------------------
\32\Respondent argues on brief that ``Johnson credibly explained the
business reasons'' for the 1988 hires spotlighted at the hearing.
---------------------------------------------------------------------------
This case presents, inter alia, a question of when, during a
continuing series of employments, alleged discriminatees probably would
have been hired; that issue raises problems not presented by a clear cut
case of discriminatory discharge of an existing employee. I cannot say
precisely when the discrimination against Bullock and Deloatch occurred.
The discriminatory failure to hire one or the other, or both, might have
been on October 5 or 6 or 7 or 12, etc. Since Deloatch was rated as a 4,
his earliest potential date of hiring raises an additional question.
Because these dates of discrimination cannot, in the nature of
things, be precisely ascertained does not mean that the system must be
frustrated. The discrimination became most obvious when Burchette and
Johnson were hired on February 23 and March 7, 1988. I shall recommend,
therefore, that the discrimination with respect to Bullock and Deloatch
be held to have commenced, respectively, on those dates.
iii. the remaining 8(a)(1) allegations
The complaint alleges that on April 1, 1988, acting through Johnson,
Respondent unlawfully ``interrogated its employees regarding the union
membership, activities and sympathies of their fellow employees''; and,
on April 4, ``interrogated its employees regarding their union
membership, activities and sympathies,'' ``solicited grievances from its
employees,'' and ``told employees they were not going to have a union.''
Former Union Steward Willo Wilkins testified that in April or May,
Superintendent Johnson asked him where former crane operator Wilbert
Wall Sr. was working, whether he thought Wall wanted to return to work
for Williams, and ``did Wilbert want a union.'' Wilkins said he could
not answer the questions. Wall testified that he went to see Johnson
around April 4 after receiving messages about returning to work. Johnson
assertedly asked ``what [Wall] thought of the union'' and told Wall that
the men had ``signed a petition that they didn't want a union.'' Wall
replied that he had not ``seen nobody from the union since I was
there.'' At some point, Johnson told Wall that ``they didn't have the
union in there and didn't want no fence between us. If I have any
problem, come to him.'' Johnson offered Wall a job performing part-time
crane operating and other functions, but Wall said he was not interested
in working at that time.
Johnson testified that he did speak to Wilkins about hiring Wall,
but denied that union activity was mentioned. As for his conversation
with Wall on or about April 4, Johnson said that the subject of a union
came up only in two contexts: when he was explaining the benefits, which
included his standard reference used in all employment interviews to the
fact that the Respondent ``intends to operate this plant as a nonunion
plant''; and when Wall ``brought the thing up about the [Bristol]
pension plan,'' as to which Johnson referred him to the union business
agent.
Neither Wilkins nor Wall gave overwhelming evidence of a penetrating
intelligence or a steeltrap memory, but they both seemed to try as best
they could.\33\ Although Wilkins at first testified that Johnson asked
him if ``we were talking about a union'' and then ``was Wilbert talking
about a union,'' he finally corrected himself to say that the question
was, ``Did Wilbert want a union?'' I am inclined to think that Wilkins'
mistakes were simply that (perhaps caused by the formal environment,
including the impressive hearing room). I have also taken into account
that Wilkins had been a union steward, but that probable bias may be
more than offset by his current employee status. Taking further into
consideration that Wilkins' version harmonizes with that given by Wall,
whom I credit, I conclude that Johnson did inquire of Wilkins on April 1
whether Wall wanted a union. Since this was uttered in a conversation in
which Johnson was speaking of employing Wall, linkage of union support
and potential employment undoubtedly had a reasonable tendency to coerce
Wilkins in the exercise of Section 7 rights.
23
---------------------------------------------------------------------------
\33\Wall appeared to be a rather elderly man; he started work at the
plant in 1951.
---------------------------------------------------------------------------
The remaining allegations, based on Walls' April 4 conversation with
Johnson, refer to Wall as an ``employee,'' which he obviously was not.
Statements addressed to potential employees can, of course, violate the
Act, Wyman-Gordon Co. v. NLRB, 654 F.2d 134, 143-144, 146 (1st Cir.
1981), and cases cited, but nonemployee status can make a difference in
some contexts, W. W. Grainger, Inc., 255 NLRB 1106, 1116 (1981)
(Maretick). Here, Wall exhibited sufficient interest in employment to
come to the plant when invited, and thus may be considered a potential
applicant.
I found Wall's testimony to be persuasive, particularly in the
authenticating detail of Johnson having mentioned the petition. I accept
that Johnson asked Wall what he ``thought of the union,'' and, in a
setting in which employment is being discussed, the reasonable tendency
to coerce is manifest. Although Wall did not testify that, as the
complaint alleges, Johnson told him ``they were not going to have a
union'' (Wall instead attributed to Johnson the statement ``they didn't
have the union in there''), Johnson testified that he told all, as
indeed he ``always did and still do'' in explaining benefits to
potential employees, that Respondent ``intends to operate this plant as
a nonunion plant.'' As earlier discussed, that kind of statement has
been held to violate Section 8(a)(1).
I think, in agreement with Respondent, that it stretches the statute
to the breaking point to say that Johnson's remarks about not having a
``fence between us,'' and Wall could ``come to him'' with any problems,
constitute a solicitation of grievances, as alleged. Solicitation of
grievances is not, alone, violative of Section 8(a)(1); such conduct
must be accompanied by an express or implied promise of imminent
benefits which might affect an employee's decision regarding unions. El
Rancho Market, 235 NLRB 468, 472 (1978). But it seems rather clear that
Johnson was not promising benefits to Wall; he was, rather, explaining
how things work when there is no union. The Board has held that there
``is no threat, either explicit or implicit, in a statement which
explains to employees that, when they select a union to represent them,
the relationship that existed between the employees and the employer
will not be as before.'' Tri-Cast, Inc., 274 NLRB 377 (1985). The same
rationale would seem to apply to any claimed implied promises by virtue
of solicitation of grievances. Accordingly, I shall recommend that this
allegation be dismissed.
Conclusions of Law
1. Williams Enterprises, Inc., a Division of Williams Industries,
Inc. is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Local Lodge 10 of the International Association of Machinists and
Aerospace Workers, AFL-CIO, CLC is a labor organization within the
meaning of Section 2(5) of the Act.
3. By refusing, on and after October l5, 1987, to recognize and
bargain with the Union as the exclusive collective-bargaining
representative of the employees in the unit described below, the
Respondent has violated Section 8(a)(5) and (1) of the Act.
4. The appropriate bargaining unit consists of:
All production, maintenance, and warehouse employees at
Respondent's Richmond, Virginia, plant, excluding employees
working in and/or engaged as office, clerical, watchmen,
drafting, engineering, office janitor, guards, supervisors,
erection, installation or construction work.
5. By, on August 21, 1987, and April 4, 1988, announcing to
applicants for employment that it intended to operate as a nonunion
plant; and by, on or about April 1 and 4, 1988, coercively interrogating
an employee and a potential employee about the union sympathies of the
24
latter, Respondent violated Section 8(a)(l) of the Act.
6. By refusing to hire Gable Bullock Jr. and Melvin Deloatch on or
about, respectively, February 23 and March 7, 1988, because of their
protected Section 7 activity, Respondent violated Section 8(a)(3) and
(1) of the Act.
7. The aforesaid unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
8. The Respondent has not violated the Act in any other respect
alleged in the complaint.
The Remedy
The customary cease-and-desist order should be entered and the
traditional notices should be posted.
Having found that Respondent unlawfully refused to employ Gable
Bullock Jr. and Melvin Deloatch on, respectively, February 23 and March
7, 1988, I shall recommend that it be ordered to offer them immediate
and full employment in their former jobs, without prejudice to their
seniority and other rights and privileges or, if no such jobs exist, to
similar jobs, and to make them whole for any loss of earnings they may
have have suffered from the above dates to the dates of Respondent's
offers of employment, with interest, in accordance with F. W. Woolworth
Co., 90 NLRB 289 (1950), and New Horizons for the Retarded, 283 NLRB
1173 (1987).\34\
---------------------------------------------------------------------------
\34\See generally Isis Plumbing Co., 138 NLRB 716 (1962).
---------------------------------------------------------------------------
On these findings of facts and conclusions of law and the entire
record, I issue the following recommended\35\
---------------------------------------------------------------------------
\35\If no exceptions are filed as provided by Sec. 102.46 of the
Board's Rules and Regulations, the findings, conclusions, and
recommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed waived
for all purposes.
---------------------------------------------------------------------------
ORDER
The Respondent, Williams Enterprises, Inc., a Division of Williams
Industries, Inc., Falls Church, Virginia, shall
1. Cease and desist from
(a) Refusing to recognize and bargain with Local Lodge 10 of the
International Association of Machinists & Aerospace Workers, AFL-CIO,
CLC, as the exclusive collective-bargaining representative of its
employees in the following appropriate unit:
All production, maintenance, and warehouse employees at
Respondent's Richmond, Virginia, plant, excluding employees
working in and/or engaged as office, clerical, watchmen,
drafting, engineering, office janitor, guards, supervisors,
erection, installation or construction work.
(b) Announcing to applicants that it intends to operate as a
nonunion plant, and coercively interrogating employees and potential
employees about their union sympathies or the sympathies of others.
(c) Discriminating against applicants for employment in
circumstances which tend to cause discouragement of union membership.
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights under the Act.
2. Take the following affirmative action necessary to effectuate the
policies of the Act.
(a) Offer to Gable Bullock Jr. and Melvin Deloatch immediate andsa
full employment in their former, or similar, jobs, without prejudice to
their seniority or other rights and privileges, and make them whole in
the manner set forth in the remedy section of this decision.
(b) Preserve and, on request, make available to the Board or its
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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 amounts of backpay due.
(c) Post at its place of business in Richmond, Virginia, copies of
the attached notice marked ``Appendix.''\36\ Copies of the notice, on
forms provided by the Regional Director for Region 5, after being signed
by the Respondent's authorized representative, shall be posted by the
Respondent immediately 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 any other material.
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\36\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.''
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(d) Notify the Regional Director in writing within 20 days from the
date of this Order what steps the Respondent has taken to comply.
It is further ordered that all violations alleged in the complaint
but not found above are dismissed.
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