NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,582, COBRA CONSTRUCTION COMPANY, INC. and CHARLES D. WILLIAMS., (Dec. 12, 1994), National Labor Relations Board, (Dec 12, 1994)

COBRA CONSTRUCTION COMPANY, INC. and CHARLES D. WILLIAMS.

315 NLRB No. 106.Case No. 22-CA-19464. December 12, 1994 D. Barry Morris, Administrative Law Judge..

Before Stephens, Browning and Cohen.

Stephen J. Holroyd, for General Counsel. Robert T. Lawless (Hedinger & Lawless), Florham Park, New Jersey, for Respondent.

Discrimination--Failure of Proof--Questioning Wage Rates.--Although two carpenters questioned their employer concerning whether they were being paid at the prevailing wage, and the following day they were laid off, the employer did not discriminate against them on the basis of their concerted protected activity. The employer demonstrated that it would have laid the employees off even absent their protected activities because two other carpenters were laid off at the same time, one of whom worked for the employer for a longer period than the two purported discriminatees and had recommended them for work. Moreover, the total hours for all carpenters on a jobsite declined dramatically during the same time period. Section 8(a)(3).

Back reference: ¶4065.608.

From Text of Board’s Decision

On July 29, 1994, Administrative Law Judge D. Barry Morris issued the attached decision. The General Counsel filed exceptions and a supporting brief, and the Respondent filed a brief in opposition to the General Counsel’s exceptions.

The Board has considered the decision and record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, [1] and conclusions [2] and to adopt the recommended Order.

The General Counsel has 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. [19 LC ¶66,308] 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings.

The General Counsel excepts, arguing, among other things, that the judge erred by not finding that employees Williams and Benjamin were engaged in protected concerted activity about September 14, 1993, when they asked the Respondent whether they were being paid prevailing wage rates. We agree that Williams and Benjamin were engaged in protected concerted activity by this conduct, which the Respondent concedes, and which the judge appears implicitly to find. We further find, however, that assuming that the General Counsel established a prima facie case that Williams and Benjamin were laid off because of their protected concerted activity, the Respondent established that it would have laid off both employees, in any event, for lack of work.

NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,582, COBRA CONSTRUCTION COMPANY, INC. and CHARLES D. WILLIAMS., (Dec. 12, 1994), National Labor Relations Board, (Dec 12, 1994)

COBRA CONSTRUCTION COMPANY, INC. and CHARLES D. WILLIAMS.

315 NLRB No. 106.Case No. 22-CA-19464. December 12, 1994 D. Barry Morris, Administrative Law Judge..

Before Stephens, Browning and Cohen.

Stephen J. Holroyd, for General Counsel. Robert T. Lawless (Hedinger & Lawless), Florham Park, New Jersey, for Respondent.

Back reference: ¶4065.608.

NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,582, COBRA CONSTRUCTION COMPANY, INC. and CHARLES D. WILLIAMS., (Dec. 12, 1994), National Labor Relations Board, (Dec 12, 1994)

From Text of Board’s Decision

Footnotes

NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,582, COBRA CONSTRUCTION COMPANY, INC. and CHARLES D. WILLIAMS., (Dec. 12, 1994), National Labor Relations Board, (Dec 12, 1994)

From Text of Board’s Decision

Footnotes