NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,604, WENNER FORD TRACTOR RENTALS, INC. and LAWRENCE ESTENICH., (Dec. 16, 1994), National Labor Relations Board, (Dec 16, 1994)

WENNER FORD TRACTOR RENTALS, INC. and LAWRENCE ESTENICH.

315 NLRB No. 144.Case Nos. 4-CA-21343 and 4-CB-6807. December 16, 1994. December 16, 1994 Martin J. Linsky, Administrative Law Judge..

Before Gould, Stephens and Devaney.

Peter C. Verrochi, for General Counsel. John S. Wenner, Concordville, Pennsylvania, for Respondent Employer. Samuel L. Spear, Philadelphia, Pennsylvania, for Respondent Union.

Discrimination--Assignment of Work--Intraunion Politics.--An employer and a union acted unlawfully when the union caused the employer to remove an employee from his position as master mechanic because of the employee’s opposition to union officials in a union election. The evidence established that the union clearly indicated to the employer that it wanted the employee removed and replaced by a supporter of the union officials, and the employer failed to show that the employee would have been removed from the position in the absence of his intraunion politics. Sections 8(a)(1) and (2) and 8(b)(1)(A) and (2).

Back reference: ¶4080.79.

Coercion of Discrimination--Employer Compliance with Union Demand--Layoff not Requested.--Inferences drawn from a union’s action in causing an employee’s removal from a master mechanic position and from the timing of his layoff were insufficient to establish that the union caused the layoff because of the employee’s intraunion politics. Although the union did request that the employee be removed from the position, there was no evidence indicating that it ever requested or even suggested that the employee should be laid off. Section 8(b)(1)(A) and (2).

Back reference: ¶4375.32.

From Text of Board’s Decision

On March 29, 1994, Administrative Law Judge Martin J. Linsky issued the attached decision. The Respondent Union filed exceptions and a supporting brief and the General Counsel filed an answering 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 as modified and to adopt the recommended Order as modified.

We agree with the judge that the Respondent Employer violated Section 8(a)(1) and (3) of the Act and that the Respondent Union violated Section 8(b)(1)(A) and (2) of the Act when the Respondent Union caused the Respondent Employer to remove Lawrence Estenich from his position as master mechanic because of Estenich’s opposition to union officials in an internal union election. We also agree with the judge that the Respondent Employer violated Section 8(a)(1) and (3) of the Act by laying off Estenich in January 1993 because of Estenich’s opposition to union officials. [2] We reverse, however, the judge’s finding that the Respondent Union caused the Respondent Employer to lay off Estenich.

I. Replacement of Master Mechanic

Estenich was classified as a master mechanic sometime after the Respondent Employer was awarded the PECO contract. Estenich was appointed to the master mechanic position at the request of Union Business Agent Hearn because of Estenich’s support for Hearn in the Union. As a master mechanic, Estenich received a wage rate above the base rate for backhoe operators. Even though he was designated as the master mechanic, Estenich continued to perform only the duties of a backhoe operator.

Following the internal union election in August 1992, Business Agent Hearn of the United slate was replaced by Tom Denise [3] of the victorious Recovery slate. The judge found that the head of the Recovery slate knew that Estenich was an active supporter of the United slate. Shortly after the election, Denise met with the Respondent Employer’s operational manager, Murphy, and announced his choice for union shop steward. Denise then asked Murphy whether the Employer was having any trouble with Estenich as master mechanic. Murphy replied that there were some problems, and Denise suggested that, if the Employer was dissatisfied with Estenich, D’Annunzio, a supporter of the union slate, should be designated as master mechanic. D’Annunzio was named as the new master mechanic on October 13, 1992. [4]

The Respondent Union excepts to the judge’s finding that both the Respondents violated the Act when Estenich lost his position as a master mechanic. The Respondent Union argues that: (a) the Respondent Employer had legitimate business reasons for removing Estenich from his position as master mechanic; (b) the evidence shows that the Respondent Union only inquired whether the Employer was happy with Estenich as master mechanic and merely suggested a replacement in case the Employer was not happy; and (c) there is no evidence to show that the Respondent Union caused the Respondent Employer to remove Estenich. We find no merit in the Respondent Union’s exception.

The General Counsel established a prima facie case that Estenich was removed from the master mechanic position because of his protected intraunion politics, Wright Line, [1980 CCH NLRB ¶17,356] 251 NLRB 1083, 1089 (1980), enfd. [92 LC ¶12,987] 662 F.2d 899 (1st Cir. 1981). The judge found that both the Respondents were aware of Estenich’s support for the United slate. Further, the judge found that the Respondent Employer told Estenich that he had been removed because of the Respondent Union. Finally, the General Counsel’s prima facie case is supported by the testimony of the Respondent Union’s own witnesses, Denise, who explained that he asked whether the Employer had a problem with Estenich because “if I have an opportunity to have a person in line that I would be dealing with that I felt comfortable with, well, I’d be in better shape.” Denise went on to testify that after the Employer allegedly stated that it had a problem with Estenich, Denise said that they could discuss replacing the master mechanic and that he felt comfortable with Joe D’Annunzio. When Denise was asked what he meant by being “more comfortable with,” Denise responded that he meant “knowing what kind of a Union guy he was.”

In addition to contributing to the General Counsel’s prima facie case, we find that Denise’s description of his motivation for suggesting Estenich’s replacement also establishes, when viewed in context with all of the facts, that the Respondent Union caused the Respondent Employer to replace Estenich as the master mechanic. It is clear that until the Respondent Union inquired about Estenich and suggested a replacement, the Respondent Employer did not intend to remove Estenich from the master mechanic position. It is equally clear that Denise did not intend to remove Estenich from the master mechanic position. It is equally clear that Denise did not feel “comfortable” with Estenich because of Estenich’s support for the United slate. A review of all the testimony relating to this issue supports Murphy’s interpretation that the Union clearly indicated that it wanted to remove Estenich as master mechanic and replace him with D’Annunzio. Thus, we agree with the judge that the Respondent Union precipitated Estenich’s removal from the master mechanic position by prompting the Employer to find reasons for the removal.

The foregoing evidence establishes a prima facie case of discrimination. The Respondents may rebut that case by showing that Estenich would have been removed from the master mechanic position even in the absence of his intraunion politics. Contrary to the Respondent Union’s assertion, the Respondent Employer did not adequately explain any legitimate business justification it had for removing Estenich. The Respondent Union admits that no one questioned Estenich’s abilities as a backhoe operator, but contends that the Employer had a problem with Estenich because, at sometime in the past, he had been rude to office staff. As the judge found, however, the Respondent Employer could not provide details of the alleged instances of rudeness or even describe when it occurred. Further, if the Respondent Union would not have thought that Estenich’s alleged rude behavior was sufficient cause to remove him from the master mechanic position. In these circumstances, we find that the Respondents failed to demonstrate that Estenich would have been replaced in the absence of his support of the United slate.

II. The Layoff

While we agree with the judge that there is sufficient evidence to show that the Respondent Union unlawfully caused the Respondent Employer to remove Estenich from the position of master mechanic in 1992, we do not agree that there is sufficient evidence to show that the Respondent Union caused the Respondent Employer to lay off Estenich from a regular mechanic’s position in January 1993. [5]

Although there was no direct evidence that the Union requested the Employer to lay off Estenich, the judge relied on the foloowing circumstantial evidence to find that the Respondent Union caused Estenich’s layoff: (1) the fact that Respondent Union caused Estenich’s removal from the master mechanic position; and (2) the strong evidence showing that the Respondent Employer laid off Estenich because of his intraunion politics; i.e., the Respondent Employer did not offer any legitimate business reason for the layoff and an agent of the Respondent Employer, Murphy, testified that he told PECO that Estenich was being laid off because of pressure from the Respondent Union. In addition, the General Counsel submits that the coincidental timing of Estenich’s layoff, the Respondents’ agreement to completely eliminate the master mechanic position, and D’Annunzio’s appointment as shop steward suggests that Estenich’s layoff was merely one of several decisions made by the Respondent Union and executed by the Respondent Employer.

Although circumstantial evidence can be sufficient to establish a violation of the Act, the Board has stated that “[t]o establish an ‘attempt to cause’ violation, there must be some evidence of union conduct; it is not sufficient that an employer’s conduct might please the union.” Toledo World Terminals, [1987-88 CCH NLRB ¶19,537] 289 NLRB 670, 673 (1988). Unlike the circumstances surrounding the removal of Estenich as master mechanic, there is absolutely no direct evidence that the Union requested or even suggested that Estenich be laid off. The General Counsel’s evidence on this issue is limited to inferences drawn from the Union’s action in causing Estenich’s removal from the master mechanic position and from the timing of his layoff. We find that this evidence is insufficient to establish that the General Counsel has met its burden of proving, by a preponderance of the evidence, that the Respondent Union caused the Respondent Employer to lay off Estenich. [6] Thus, in the absence of any evidence relating to the Respondent Union’s conduct with respect to this issue, we reverse the judge’s finding that the Respondent Union violated Section 8(b)(1)(A) and (2) of the Act by causing the Respondent Employer to lay off Estenich.