NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,476, CHAMPION RIVER COMPANY, A DIVISION OF HOGEN INDUSTRIES, INC., A HI TECMETAL GROUP COMPANY and LOCAL UNION NO. 743 OF THE INTERNATIONAL UNION OF ALLIED INDUSTRIAL WORKERS OF AMERICA, AFL-CIO., (Sep. 13, 1994), National Labor Relations Board, (Sep 13, 1994)

CHAMPION RIVER COMPANY, A DIVISION OF HOGEN INDUSTRIES, INC., A HI TECMETAL GROUP COMPANY and LOCAL UNION NO. 743 OF THE INTERNATIONAL UNION OF ALLIED INDUSTRIAL WORKERS OF AMERICA, AFL-CIO.

314 NLRB No. 178.Case No. 8-CA-24268. September 13, 1994 George F. McInerny, Administrative Law Judge..

Before Gould, Stephens and Browning.

Allen Binstock, for General Counsel. Richard T. Prasse and Amy Berman Hamilton (Hahn, Loeser & Parks), Cleveland, Ohio, for Respondents.

Discrimination--Refusal to Rehire--Union Activists.--By refusing to rehire three of its predecessor’s employees because of their union activism, a successor employer discriminated against them. The successor had hired other employees to perform the same jobs that the three discriminatees were clearly qualified to perform. Further, the successor had demonstrated union animus through prior actions and failed to prove that it would not have rehired the former employees even absent their unionism. Section 8(a)(3).

Back reference: ¶4035.631.

Affiliated Companies--Fact Finding--Alter Ego.--On the facts, although an employer admitted that it was a successor to a former employer, it was not automatically liable for its predecessor’s unfair labor practices because the two companies did not constitute a single employer for the purposes of the Act. Section 2(2).

Doubt of Union Majority--Decertification Petition as Basis--Employer Circulates Petition.--An employer violated its bargaining duty by refusing to recognize and bargain with a union, based upon a claimed good faith doubt of the union’s majority status. The employer’s “good faith doubt,” however, was based upon an improper decertification petition that the employer initiated, prepared and circulated among its employees. Section 8(a)(5).

Back reference: ¶3044.571.

From Text of Board’s Decision

The Board has considered the decision and the record in light of the exceptions and briefs [1] and has decided to affirm the judge’s ruling, [2] findings, [3] and conclusions [4] and to adopt the recommended Order as modified and set forth in full below.

1. The parties stipulated that the Respondent, Champion Rivet Company, a Division of Hogen Industries, Inc., a HI TecMetal Group Company, is a business successor to Champion Commercial Industries, Inc. (CCI) pursuant to NLRB v. Burns Security Services, 406 U.S. 272 (1972). Based on this stipulation, the judge found that these entities are a single employer within the meaning of the Act. The Respondent has excepted to the single employer findings. We find merit in this exception, and we agree with the Respondent that a stipulation as to successorship does not automatically lead to a finding of single employer. However, in its brief the Respondent has conceded that Champion Rivet Company and Hogen Industries, Inc. are a single employer. Accordingly, we limit our finding of single employer status to these two entities. This limitation does not affect the result in this case.

2. The judge found, inter alia, that the Respondent violated Section 8(a)(3) and (1) of the Act by refusing to hire Donald Chadwick, Frank Gallardo, and John Abron because of their union activities and because of the Respondent’s desire to remain nonunion. In its exceptions, the Respondent argues that the General Counsel failed to show that its decision not to hire the three employees was in any way motivated by a desire to avoid the Union. The Respondent further asserts that even if the General Counsel made a prima facie showing of discrimination, the Respondent has rebutted it and demonstrated that its hiring decisions were based solely on legitimate business considerations. For the reasons set forth below, we find no merit in the Respondent’s exceptions.

In cases such as this one alleging a violation of Section 8(a)(3), the Board applies the causation test enunciated in Wright Line, [5] and requires the General Counsel to make a prima facie showing sufficient to support the inference that protected conduct was a motivating factor in the Respondent’s decision. Once this is established, the burden shifts to the Respondent to demonstrate that the same action would have taken place in the absence of the protected conduct.

The judge found, and we agree, that the General Counsel established a prima facie case that the Respondent’s failure to hire Chadwick, Gallardo, and Abron was unlawful. Chadwick, Gallardo, and Abron were the three most senior employees of the predecessor employer (CCI) and were active union proponents [6] Chadwick had worked there for 29 years and had been union president for at least 23 of those years. [7] Gallardo, who started in the rivet division of CCI in 1962 before transferring to manufacturing in 1963, was union steward from 1970 to 1976. Abron who had worked for CCI since 1973, was the Union’s secretary-treasurer for the last 3 years of his employment and had also served as steward and committee-man.

Two former CCI supervisors played key roles in the Respondent’s hiring process. Janos Szigeti, the Respondent’s general operations manager, testified that he knew that Chadwick was the union president. Foreman Richard Huffman testified that he knew that Chadwick was the union president and that Abrone held some union office.

The Respondent’s union animus was demonstrated by the credited testimony that Terry Profughi, president of HI TecMetal Group company, told Union President Chadwick during a meeting in November 1990 that he did not want to have a union in any of his plants. Specifically, Profughi stated that he owned 12 plants and all of them were nonunion, that he wanted to be able to move employees around from plant to plant but could not do this if there was a union in the plant he was purchasing, and that the purchase of CCI’s induction plant would be easier if there were no union. The Respondent further demonstrated its animus by its refusal to allow Union President Chadwick to speak to Profughi at the August 1991 meeting where it was announced that the rivet division would cease operation, by its admission that General Operations Manager Szigeti initiated and assisted in the circulation of an October 1991 antiunion petition, and by its admitted unlawful refusal to recognize and bargain with the Union.

Most significantly, the General Counsel has shown that the Respondent treated Chadwick, Gallardo, and Abron differently from all other CCI unit employees. When the Respondent took over the rivet operation, it invited all the former CCI employees except Chadwick, Gallardo, and Abrone to a secret meeting to apply for employment. Job applications were taken from no other sources. Five of the six applicants were hired; one former CCI employee failed his physical and was not hired. After operations commenced, the Respondent hired additional employees, but again did not contract Chadwick, Gallardo, or Abrone.

Based on the foregoing, we find that an inference is warranted that the Respondent refused to hire Chadwick, Gallardo, and Abrone because of their union activities and because of its desire to avoid a union in the plant. Accordingly, the burden shifts to the Respondent to demonstrate that it would not have hired Chadwick, Gallardo, and Abrone even in the absence of their union activity. For the following reasons, we find that the Respondent’s proffered reasons for failing to hire these employees were pretextual. The effect of a pretext finding is to leave intact the discriminatory motive established by the General Counsel. See e.g., Limestone Apparel Corp., [1980-81 CCH NLRB ¶18,046] 255 NLRB 722 (1981), enfd. [97 LC ¶10.076] 705 F.2d 799 (6th Cir. 1982).

First, the judge discredited the testimony of General Operations Manager Szigeti regarding his reasons for not hiring Chadwick, Gallardo, and Abron. That adverse credibility resolution in itself seriously, if not entirely, undermines the Respondent’s Wright Line defense.

Although the Respondent virgorously excepts to the judge’s credibility determination, we find, as stated in footnote 3, supra, no basis for reversing the finding. Indeed, the judge properly found that Szigeti gave shifting reasons for not hiring Chadwick, Gallardo, and Abron. Initially, Szigeti affirmed statements in his affidavit that the three employees were not hired because they lacked the necessary qualifications. Later in his testimony, however, Szigeti shifted to an entirely different rationale: he stated that the three employees were not hired because they were poor workers, i.e, they lacked a “work ethic,” were slow, or slept on the job.

Szigeti was then questioned on cross-examination as to why he did not discipline these employees for their alleged poor job performance. In testimony the judge refused to believe, Szigeti stated that he was not familiar with CCI’s disciplinary procedures, even though he supervised production for CCI. Szigeti also testified that he had approached CCI President Vince Botta to complain about Gallardo and CHadwick only to be told by Botta that Gallardo and Chadwick worked for Botta and could not be fired by Szigeti. Again, the judge was warranted in discrediting Szigeti. The Respondent did not call Botta to corroborate Szigeti’s testimony that Szigeti had tried to discipline Chadwick and Gallardo but that Botta would not allow it, and the judge drew an adverse inference from the Respondent’s failure to call Botta to testify. [8] In addition, no personnel data or other records were submitted to corroborate Szigeti’s testimony that the three employees were not employed in the rivet division.

Second, Foreman Huffman offered only conclusory testimony that the three employees were not qualified for the available positions. Therefore, the judge properly accorded little weight to Huffman’s testimony. In addition, Huffman failed to corroborate Szigeti’s testimony concerning the employee’s poor job performance.

Finally, the record shows that after the commencement of operations, the Respondent needed and hired additional workers. Some of these employees were hired solely to perform tasks that the three alleged discriminatees were clearly qualified to perform. The Respondent failed to offer any credible explanation for failing to contract Chadwick, Gallardo, and Abron for these subsequent openings.

Accordingly, for all these reasons we find that the Respondent has failed to demonstrate that it would not have hired Chadwick, Gallardo, and Abron even in the absence of their union activity. We therefore agree with the judge that the Respondent violated Section 8(a)(3) and (1) of the Act by refusing to hire the three employees.