W.F. Bolin Co. v. N.L.R.B.
| Decision Date | 17 November 1995 |
| Docket Number | No. 93-5939,93-5939 |
| Citation | 70 F.3d 863 |
| Parties | 150 L.R.R.M. (BNA) 2833, 131 Lab.Cas. P 11,445 W.F. BOLIN COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Christopher L. Lardiere (briefed), Thomas L. Magelaner (argued), Kemp, Schaeffer & Rowe, Columbus, OH, for petitioner W.F. Bolin Co.
David Seid (briefed), N.L.R.B., Office of General Counsel, Washington, DC, Aileen A. Armstrong, Deputy Assoc. General Counsel, Paul J. Spielberg (briefed), Howard E. Perlstein (argued), N.L.R.B., Appellate Court Branch, Washington, DC, for respondent N.L.R.B.
Before: ENGEL, NELSON, and SUHRHEINRICH, Circuit Judges.
W.F. Bolin Company ("WFB") seeks review of a decision of the National Labor Relations Board (the "Board") finding that it laid off James Wright and Neal Kehl for complaining about their wages and work conditions in violation of Secs. 8(a)(1) and 8(a)(3) of the National Labor Relations Act (the "Act"). Because we find substantial record evidence in support of the Board's decision, WFB's petition is denied.
In September 1991, WFB, a painting and wall covering contractor headquartered in Columbus, Ohio, began work as a subcontractor at the Logan Middle School in Logan, Ohio. Pursuant to a collective-bargaining agreement with Local 93 of the International Brotherhood of Painters and Allied Workers (the "Union") and two local contractor associations, WFB hired painters from the Union's hiring hall to perform work at the school. 1
During the course of the project, disputes arose between WFB and its painters regarding WFB's compliance with the collective-bargaining agreement (the "CBA"). Led by James Wright and Neal Kehl, the painters complained that WFB was not fulfilling its part of the CBA with respect to travel pay, 2 extra pay for working with epoxy paint, 3 the timely distribution of paychecks at the work In November 1991, soon after work began at the school, Edward Minke, the job steward, raised the issue of travel pay with WFB's foreman at the site, Charles Tisher. In the presence of several other employees including Wright but not Kehl (who had not then been hired), Minke handed Tisher a copy of the CBA to show him that it provided for travel pay. Without examining it, Tisher threw the contract on the floor.
site, 4 and the allocation of "premium pay" work. 5
When William Bolin, WFB's part-owner and vice-president, learned of the complaint, he asked the Union's business agent, James Farley, to talk to the employees. Farley spoke to the painters on several occasions, explaining that the travel pay provision of the CBA did not apply to the job.
Farley's intervention notwithstanding, complaints continued. Wright complained to both Tisher and his coworkers. And when Kehl was hired on December 12, he voiced complaints as well. On his first day on the job, Kehl asked Tisher about the painters' not getting travel pay and showed Tisher a copy of the CBA provision requiring it. At different times during the first two weeks after he started, Kehl also complained to Tisher about not receiving extra pay for epoxy work, the allocation of premium pay work and the distribution of paychecks at the work site.
On December 24, with Tisher present, the employees met to discuss their complaints. Wright spoke for the painters regarding travel pay, and Kehl acted as a spokesman for the employees on issues such as travel, epoxy and premium pay.
Not long after the meeting, Tisher and James Ring, WFB's superintendent, walked past Kehl and Minke as the two employees worked with epoxy. Kehl asked Minke to ask Ring about epoxy pay, and Minke raised the matter with Ring. Ring responded, "If you guys keep complaining I'm going to fire the whole crew and bring in a whole new crew."
As of January 10, 1992, the painting work at Logan Middle School was approximately seventy percent complete. However, substantial work, including primarily trim work, remained. Although it had hired George Miller approximately two weeks earlier, WFB determined that it needed only five painters (instead of seven) to complete the job and laid off Wright and Kehl. 6
There is credible evidence that Wright and Kehl were at least as qualified as the other painters. However, Tisher claims that he selected Wright and Kehl for layoff because they were less qualified than the others to handle the remaining work. Tisher testified, "So I just chose the best ones to do the job and laid the other two off, or I kept the people I felt were the best qualified to finish the job is what it was."
Not long after being laid off, on March 13, 1992 and March 26, 1992, respectively, Wright and Kehl filed unfair labor practice charges against WFB. The General Counsel of the Board issued a consolidated complaint on April 16, claiming that WFB's agents made coercive statements to employees, violating Sec. 8(a)(1) of the Act, and laid off Wright and Kehl for discriminatory reasons in violation of Secs. 8(a)(1) and 8(a)(3) of the Act.
A hearing was held before an administrative law judge (the "ALJ") on August 18. The ALJ concluded that WFB violated Sec. 8(a)(1) of the Act by reason of Ring's statement, but concluded that WFB did not lay off Wright and Kehl in violation of Secs. 8(a)(1) and 8(a)(3). Although he found that Wright According to the ALJ, neither Ring's statement nor Tisher's throwing down the CBA evidences animus towards Wright or Kehl. Ring's remark does not show animus toward them, the ALJ reasoned, because it was not directed at Wright or Kehl individually and was made without the intent of firing anyone. Tisher's throwing down the CBA does not demonstrate animus toward Wright and Kehl, because it falls short of proof that Tisher would be willing to fire an employee for engaging in protected activity and because it was directed at Minke, if at anyone.
and Kehl had engaged in protected activities within the meaning of the Act, the ALJ declined to find that WFB laid them off because of those activities.
The ALJ also declined to find that WFB showed animus toward Wright and Kehl on the basis of management's responses to the employees' complaints. He noted that Tisher "rarely seemed perturbed by" the employees' complaints and seems to have found Tisher reasonably responsive to the painters' complaints. As to the paycheck dispute in particular, the ALJ found it "hard to imagine why Kehl's complaints would have been unduly troubling to management."
Finding that the General Counsel had failed to show that no layoffs were warranted on January 10, that WFB ordinarily lays off painters according to seniority on the job, or that WFB supervisors were angered enough by Wright's and Kehl's protected activities to consider ending their employ, the ALJ placed the burden on the General Counsel to show that Tisher's stated reasons for laying off Wright and Kehl were false. The judge credited the testimony of the General Counsel's witnesses that Wright and Kehl were experienced painters who were "perfectly capable" of performing the trim work, but nevertheless held that such evidence falls short of proving that Tisher "could not reasonably have concluded that, relative to the other painters, Wright and Kehl were not as productive at the particular kinds of work that remained to be done as of January 10."
The General Counsel filed exceptions to the recommended decision and order of the ALJ. According to the General Counsel, the ALJ erred in not finding that WFB laid off Wright and Kehl in violation of Secs. 8(a)(1) and 8(a)(3). 7 Upon review, the Board essentially accepted the ALJ's findings of fact but disagreed with his conclusions, holding that WFB laid off Wright and Kehl in violation of Secs. 8(a)(1) and 8(a)(3) of the Act.
The Board first held that the General Counsel established a prima facie case that a reason for WFB's selection of Wright and Kehl for layoff was their protected activity. Contrary to the ALJ, the Board found that Ring's unlawful remark about firing the crew evidences animus toward the protected activities of Wright and Kehl. According to the Board, "Ring's remark clearly expressed hostility toward and contemplated retaliation against employees who voiced further complaints," and "Kehl's and Wright's continued outspokenness on behalf of employees to complain about various working conditions" gives rise to an inference that WFB "was hostile toward Kehl and Wright regarding their continued voicing of complaints."
The Board also relied on Tisher's throwing down the CBA. Tisher's throwing down the CBA, the Board reasoned, "evidences hostility to the employees' protected activities in general and, by inference, to the protected activities of Kehl and Wright." The Board further relied on "the timing of the layoffs in close proximity to the employees' protected activities as evidence of animus toward the protected activities of Kehl and Wright."
Second, the Board held that WFB failed to rebut the General Counsel's prima facie showing that WFB laid off Wright and Kehl because of their protected activities. The Board concluded that WFB had not carried its burden because the only evidence of WFB's purported reason for laying off Wright and Kehl was "vague and conclusory testimony, unsupported by any specific or
objective evidence"; because the ALJ found that Wright and Kehl were both experienced painters capable of performing trim work and were "at least as good" as the other painters; and because Miller started work at the project less than two weeks before the layoff.
Section 8(a)(1)of the National Labor Relations Act makes it an unfair labor practice for an employer to interfere with employees exercising the right guaranteed them by Sec. 7 of the Act to act in concert for mutual aid and protection. 29 U.S.C. Sec. 158(a)(1)....
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