Avon Roofing & Sheet Metal Co.

National Labor Relations Board - Board Decisions

Sep 29, 1993

312 N.L.R.B. 499 (N.L.R.B. 1993)

499
312 NLRB No. 92
AVON ROOFING & SHEET METAL CO.
1 The Union and Avon have excepted to some of the judge’s credi-
bility 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.
2 We note that the General Counsel stated at the hearing that it of-
fered Davis’ statement as an admission by the Union and not against
Avon.
Avon Roofing and Sheet Metal Co. and Scott
Gerow and Michael Henshaw
Local No. 4 of the United Union of Roofers,
Waterproofers and Allied Workers of Newark,
New Jersey and Vicinity (AFL–CIO) and Kevin
Gerow and Scott Gerow and Michael Henshaw.
Cases 22–CA–17301, 22–CA–17352, 22–CA–
17358, 22–CB–6587, 22–CB–6607, and 22–CB–
6634
September 29, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On December 7, 1992, Administrative Law Judge
James F. Morton issued the attached decision. The
Union and Avon filed exceptions and supporting
briefs, the General Counsel filed an answering brief,
and Avon filed a reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings,1 and conclusions and to adopt the rec-
ommended Order.
We agree with the judge that a request by the Union
that Avon not recall the four discriminatees may be in-
ferred from the circumstances here, as set out in the
judge’s decision. The Board has found that direct evi-
dence of an express demand by the Union is not nec-
essary where the evidence supports a reasonable infer-
ence of a union request. See Warehouse Employees
Local 20408 (Dubovsky & Sons), 296 NLRB 396, 403
(1989); M. W. Kellogg Constructors, 273 NLRB 1049,
1051 (1984), remanded on other grounds 806 F.2d
1435 (9th Cir. 1986). Therefore, we agree with the
judge’s conclusion that the Union unlawfully requested
Avon not to recall the discriminatees and that Avon re-
fused to recall them in response to that request.
In finding that the Union violated Section 8(b)(1)(A)
and (2) through its unlawful request, we also rely on
the credited testimony of Scott Gerow that, when he
asked Union Steward Davis if Avon planned to recall
a less senior employee rather than him, Davis stated
that Avon was told not to rehire the four
discriminatees and that the Critchleys were pressuring
Avon not to rehire them. Contrary to the judge, we
find that Davis’ statement constitutes an admission
against interest by the Union. The record demonstrates
that Davis’ role as the steward at Avon included the
administration of the seniority provisions of the collec-
tive-bargaining agreement, and that he kept a copy of
the seniority list during the layoff. Therefore, we find
that Davis was acting as the Union’s agent in making
statements concerning the reason why Gerow would
not be recalled in favor of a less senior employee. See
Weco Cleaning Specialists, 308 NLRB 310 fn. 2
(1992). To the extent that this finding is inconsistent
with Albritton Communications, 271 NLRB 201, 205
fn. 12 (1984), relied on by the judge, that case is over-
ruled.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondents, Avon Roofing and Sheet
Metal Co., West Orange, New Jersey, its officers,
agents, successors, and assigns, and Local No. 4 of the
United Union of Roofers, Waterproofers and Allied
Workers of Newark, New Jersey and Vicinity (AFL–
CIO), Newark, New Jersey, its officers, agents, and
representatives, shall take the action set forth in the
Order.
Steven M. Kessler, Esq., for the General Counsel.
John K. Bennett, Esq. (Carpenter, Bennett & Morrissey), of
Newark, New Jersey, for Avon Roofing and Sheet Metal
Co.
Paul A. Montalbano, Esq. (Schneider, Cohen, Solomon,
Leder & Montalbano), of Cranford, New Jersey, for Local
No. 4 of the United Union of Roofers, Waterproofers and
Allied Workers of Newark, New Jersey and Vicinity,
(AFL–CIO)
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge. The com-
plaint as amended, that issued in these consolidated cases, al-
leges that Local 4 has committed unfair labor practices with-
in the meaning of Section 8(b)(1)(A) and (2) of the National
Labor Relations Act (the Act) and that Avon has committed
unfair labor practices within the meaning of Section 8(a)(1),
(3), and (4) of the Act. Specifically, Local 4 is alleged to
have engaged in the following conduct by the persons named
as its agents:
(a) On or about September 14, 1990, by Michael
Critchley, it threatened employees that they would not be re-
ferred to work because of their internal union activities.
(b) On about September 18, 1990, by Robert Critchley and
David Critchley, it threatened employees that they would not
be referred to work because of their internal union activities.
(c) On or about October 11, 1990, it requested Avon Roof-
ing to refuse to recall Scott Gerow, John Gerow, Michael
Henshaw, and Jerry Nave to work.
500 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Counsel for Local 4’s motion to supplement the record by ac-
cepting in evidence a certified plea form bearing the seal of the Su-
perior Court of New Jersey is denied for the reasons set forth in fn.
2 in Jacob E. Decker & Sons, 223 NLRB 70 (1976). The plea form
shall be marked as a rejected exhibit, R. Exh. 11.
Avon Roofing is alleged to have acceded to Local 4’s re-
quest and also to have refused to offer employment to Scott
Gerow because he filed an unfair labor practice charge with
the Board.
The answers filed by Local 4 and Avon Roofing deny
these allegations.
I heard the case in Newark, New Jersey, on February 24
and 25, and on April 15 and 20, 1992. On the entire record,1
including my observation of the demeanor of the witnesses,
and after consideration of the briefs filed by the General
Counsel, Local 4, and Avon, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
Avon is a roofing contractor. In its operations annually it
meets the Board’s jurisdictional standard for nonretail busi-
nesses.
The Union is a labor organization as defined in Section
2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The members of Local 4 are journeymen roofers. Local 4
operates a referral hall in Parsippany, New Jersey, from
which it sends roofers to employment with, inter alia, Avon.
Individuals also can obtain employment with roofing contrac-
tors, including Avon, by applying directly to them.
The four individuals alleged as discriminatees are mem-
bers of Local 4. They were laid off from Avon in late spring
1990 due to lack of work. The General Counsel contends
that Local 4 requested Avon not to recall them when work
picked up in October 1990 and that Local 4 made that re-
quest because the four alleged discriminatees had engaged in
internal union activities.
B. Those Activities
The testimony proffered by the General Counsel pertains
to three aspects of union activities alleged to be the basis for
Local 4’s alleged discriminatory demand.
The first pertains to whether Scott and John Gerow led an
effort to oust John (Jack) Critchley from his post as business
manager of Local 4, a post he has held uncontestedly for 32
years. Critchley’s sons, David and Robert, are two of Local
4’s business agents. Another son, Michael, administers a
roofing apprenticeship program set up by contractors and
roofing locals in New Jersey.
The testimony of Scott Gerow indicates that, beginning in
October 1989, he and his brother, John, had talked to many
of Local 4’s members about their running against Jack
Critchley and his sons. Scott Gerow testified that he had
been under the mistaken impression in October 1989 that the
next election for Local 4’s officers was scheduled for June
1991. In fact, an election had been held in June 1989 and
the next election was set then for 1992; elections are held
every 3 years. He testified also that, in 1990, he continued
to talk at various jobsites with Local 4 members about his
running against Jack Critchley.
John Gerow, Scott’s brother, had been a member of Local
4’s executive board for 13 years, until he resigned from it
in September 1990. He testified that he and Scott first dis-
cussed challenging the Critchleys in January 1991. He cor-
rected that testimony to place the starting point in January
1990. John Gerow was among several Local 4 members who
were designated by Local 4 in March 1990 to the post, ser-
geant-at-arms.
Michael Henshaw testified for the General Counsel that
John Gerow had ‘‘dabbled’’ with the idea of running for
union office months before Henshaw began working for
Avon in September 1989 and that Gerow continued to talk
along those lines.
Jerry Nave, when he testified for General Counsel, did not
allude to any campaign by the Gerow brothers.
The foregoing accounts disclose that Scott and John
Gerow had undertaken no organized campaign to oust Jack
Critchley; they discussed with other employees, on an inter-
mittent basis, the idea of opposing him.
The second aspect of internal union activities pertains to
events at a Local 4 meeting in March 1990. The members
were voting on a recommendation by the executive board as
to how to divide a certain earnings increase among their
wage rates and their benefit programs. One member, Frank
Moorehouse, voiced his opposition; there is no contention
that he was discriminated against. John Gerow asked Jack
Critchley whether benefit funds were getting a fair return on
their investments. Jack Critchley later arranged to have the
funds’ actuary write Gerow to allay his concern. Alleged
discriminatee, Henshaw, stated that more of the money
should be allocated to wages and less to the funds. The
membership voted in favor of the recommendation of the ex-
ecutive board which alloted more to the funds. In sum, noth-
ing occurred at the March 1990 meeting which could relate
to alleged discriminatory acts 7 months later.
The third aspect of internal union activities concerns an in-
cident involving Henshaw and Jack Critchley in late June
1990 and to related matters. Henshaw was among those em-
ployees of Avon who were laid off in late May 1990. He,
each day thereafter for several weeks, sought referrals at the
Local 4 hall. He testified that a roofer, who had signed the
referral roster after he had, telephoned him one day and told
him, among other things, that he had been referred from the
Local 4 hall. Henshaw later asked Local 4’s business agent,
David Critchley, how that roofer got the job. Critchley told
him that that roofer had ‘‘shopped it,’’ i.e.—that he got it
on his own application. Henshaw told Critchley that that was
not true. David Critchley referred Henshaw to Jack Critchley
who then instructed his son to send Henshaw to work with
Barrett Roofing Company. At that point, Henshaw asked
why he had not been sent out to Barrett earlier and was told
that he was getting sent out, even though he was not at the
head of the referral roster. He then went to work for Barrett.
C. Alleged Coercive Statements
The complaint alleges that, on about September 14, 1990,
Local 4, by Business Agent Michael Critchley, made coer-
cive statements. Local 4 asserts that Michael Critchley is not
an agent of Local 4, as he is an employee of an apprentice-
501AVON ROOFING & SHEET METAL CO.
2 Local 4 and Avon has urged that the Gerows, Henshaw, and
Nave made racial remarks and used vulgar invectives which were
not protected by the Act. There is no contention by Local 4 or Avon
however, that the Gerows, Henshaw, and Nave thereby had forfeited
any seniority rights with Avon. Nor does this case involve the law-
fulness of an internal union charge against the Gerows for abusive
conduct. In fact, Avon’s superintendent initially advised Scott Gerow
that he was aware of the altercation at Local 4’s hall on September
17 and that it would not affect his recall rights. When Gerow was
not recalled, as discussed later, Avon’s superintendent gave a reason
therefor which was unrelated to the altercation.
3 The complaint was amended at the hearing to allege that Local
4’s business agents, Robert Critchley and David Critchley, unlaw-
fully threatened employees that same day. No evidence thereof was
produced. That allegation lacks merit.
ship program, an entity entirely separate from Local 4. The
General Counsel asserts that, nonetheless, he has served as
a Local 4 agent. The testimony in the record is
uncontroverted that Michael Critchley has referred employees
from Local 4’s hiring hall; he has been called to jobsites
where he adjusted grievances of employees with employers;
he reported to the membership at Local 4 meetings as to the
status of various jobs; he sat on the dais with Local 4’s offi-
cers at the March 1990 meeting discussed above and took
over, from his father, to respond to questions as to how mon-
eys were to be allocated between wages and benefit funds.
I thus find that Michael Critchley is an agent of Local 4 and
that Local 4 is accountable for his actions as its agent. See
Hotel & Restaurant Employees Local 50 (Dick’s Restaurant),
287 NLRB 1180, 1185 (1988), and cases cited therein.
On about September 12, 1990, Michael Critchley told John
Gerow that Henshaw had some trouble with his father, Jack
Critchley, at the hiring hall—a reference to the Henshaw’s
complaint about another employee having been given pref-
erence, as discussed above. Critchley told Gerow that he
should persuade Henshaw to apologize to Jack Critchley.
Gerow declined, saying Henshaw may have been right.
Critchley then urged Gerow to have Henshaw ‘‘eat a little
humble pie’’ and that he, Michael Critchley, would then
‘‘work everything out with the boss,’’ a reference to Jack
Critchley. Michael Henshaw then told Gerow that he had
heard that Gerow was going to cause some problems at the
next union meeting. Gerow replied, ‘‘We have no prob-
lems.’’
On Friday, September 14, 1990, John Gerow and Henshaw
were at the Pacemaker Lounge in Irvington, New Jersey. Mi-
chael Critchley came in later and joined them. He asked
Henshaw to apologize to his father. Henshaw said he would
not and Gerow stated that maybe Henshaw is right. Michael
Critchley then stated that he had heard that Gerow’s brother
was going to run for business agent and that John planned
on running for president of Local 4. Michael Critchley told
him that they would be destroyed financially if they decided
to run, and that if they ask any questions at a union meeting,
they would never work again.
On the following Monday, September 17, John Gerow,
Scott Gerow, their brother Kevin Gerow, Michael Henshaw,
and Jerry Nave went, as a group, to Local 4’s referral hall
in Parsippany, New Jersey. They exchanged some
unpleasantries with John Critchley. Scott Gerow’s testimony
alludes in part to the subject matter of Respondent Union’s
Exhibit 11, discussed above at footnote 1. They asked him
where Michael Critchley was as they wanted him there to
straighten out a problem they had. They also asked him if
he sent Michael down to do his dirty work in telling
Henshaw to apologize and the Gerows to keep their mouths
shut. Jack Critchley said that Michael Critchley has nothing
to do with Local 4. ‘‘[W]ords went back and forth.’’ At one
point, Scott Gerow told Jack Critchley, in somewhat forceful
language, that he was going to take over control of Local 4.2
The four alleged discriminatees returned, as a group, to the
Local 4 hall the next day. Jack Critchley asked Nave to
‘‘stay out of this.’’ Nave replied that he ‘‘was not walking
away.’’ The Gerows came with a policeman to escort them.
There was no disturbance in the hall as the alleged
discriminatees signed in. While leaving, Michael Critchley
told them that there was no sense in their returning as they
would never work again.3
Local 4 contends that Jack Critchley’s saying on Septem-
ber 18 that Local 4 is not responsible for Michael Critchley’s
threats to employees requires dismissal of the allegation that
it, by his conduct, coerced employees as to their Section 7
rights. In Passavant Memorial Area Hospital, 237 NLRB
138 (1978), the Board noted that it was well settled that a
repudiation of an agents’ conduct, to be effective, must be
timely, unambiguous, specific in nature to the coercive con-
duct, and free from other proscribed illegal conduct, and also
that it must contain assurances that there will be no inter-
ference with employees’ Section 7 rights. Jack Critchley’s
summary comment, in the course of a heated exchange, does
not meet the Passavant requirements for an effective repudi-
ation. I therefore find that Local 4, by the threats of its
agent, Michael Critchley, to employees that they will never
work again out of Local 4’s referral hall because they voiced
interest in opposing the Local 4’s business manager, re-
strained and coerced employees in the exercise of their rights
under Section 7 of the Act.
D. The Alleged Discriminatory Conduct
1. The evidence
Placid Carmeci is Avon’s superintendent, responsible for
all of its jobsites, including the hiring of employees. He has
35 years’ experience in the roofing industry, the last 15 as
Avon’s superintendent, administering, inter alia, the collec-
tive-bargaining agreement with Local 4.
After the incidents at the Local 4 referral hall on Septem-
ber 17 and 18, 1990, recounted above, Scott Gerow visited
Carmeci’s office on a regular basis to inquire as to when he
would be recalled to work. Carmeci assured him that he
would be called back as soon as work picked up. At one
point, Gerow asked him if the altercation that took place at
Local 4’s hall would affect his status. Carmeci told him it
would not.
In the early part of October 1990, Scott Gerow was told
by Kenneth Alley, an employee just above him on Avon’s
seniority list, that he had just quit his job with Avon. Alley
also told Gerow that Avon would not recall him but would
recall a roofer with less seniority, Marty Sierra.
Gerow telephoned the Local 4 steward for Avon, Gary
Davis. Gerow and Davis gave conflicting versions of their
discussion.
Gerow’s account is as follows. He asked Davis if Avon
planned on calling Sierra back instead of him. Davis told
502 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Gerow’s account of an earlier conversation he had with Carmeci
respecting his leaving Kadco to return to Avon is discussed sepa-
rately.
5 Alley credibly testified as follows. Carmeci telephoned him while
he was on layoff from Avon and asked if he was working. When
Alley responded that he was working for Barrett Roofing, Carmeci
asked if it was all right if he called back before him, Al and Rodney
Gavenos. They were behind Alley on the recall roster. Carmeci ex-
plained that the Gavenos were not working. Alley told Carmeci that
he had no objection. Alley later was recalled by Carmeci. (As indi-
cated above, Alley later quit Avon and Scott Gerow expected to be
him that Avon was thinking of calling Sierra back. Davis
said that he has known the Gerow family for a long time and
is a very good friend but he hates to say that Avon was told
not to hire all four of them, Scott and John Gerow, Henshaw,
and Nave. Davis told him that the Critchleys were pressuring
Avon not to hire them.
Davis’ testimony is as follows. He is very friendly with
the Gerow family. Scott Gerow called him, saying he thought
his seniority at Avon had been violated and that he heard
Avon called people to work but not him. He told Gerow that
this was not true, that Avon had not hired anyone back.
When Scott Gerow told him that he was going to go to the
Labor Board, he told Scott that he was wasting his time.
Gerow had vaguely mentioned the name, Sierra. Davis also
told Gerow basically that as Gerow had worked for three or
four other contractors since he was laid off, he had no se-
niority. He explained to Gerow that Avon does not have to
call him back as ‘‘once [he puts] his name and works for
some other employer, they don’t have to ‘recall him.’’’ (The
collective-bargaining agreement provides that an employee
loses his place on a seniority roster for recall purposes by
going to work for another employer, or by signing the Local
4 referral roster, while on layoff.)
Davis’ account gives me pause. It seems unlikely that he,
as a close friend of Scott Gerow, would cite to him the pro-
visions of the collective-bargaining agreement as a basis as
to why Avon was not under an obligation to recall him. The
account given by Scott Gerow as to their conversation has
a more believable ring to it and I credit it.
On October 12, 1990, Scott Gerow filed the unfair labor
practice charges in Cases 22–CA–17301 and 22–CB–6607
against, respectively, Avon and Local 4.
Scott Gerow testified that, in the 7 years he has worked
for Avon, he never previously had been passed over on re-
calls from layoffs.
In late October 1990, Avon recalled three employees who
had been below Scott Gerow on its seniority roster at the
time of the layoff earlier that year. Gerow visited the office
of Avon’s superintendent, Carmeci, in early November. The
substance of his discussion with Carmeci then is in dispute.
Gerow’s account thereof is as follows. When he asked
why Carmeci called back three men and not him, Carmeci
replied that the reason was personal. When Gerow asked in
substance what that meant, Carmeci said that it was because
Gerow had gone down to the Labor Board on him. Gerow
told him that he was forced to do it because otherwise the
Critchleys would tell every boss not to hire them. Carmeci,
shaking his head, said nothing. Gerow then asked if Carmeci
would do him one favor, by giving him a copy of the senior-
ity roster. Carmeci said that Jack Critchley had the list. He
also said to Gerow that it is a shame that all this happened.
On the following day, Gerow filed the unfair labor prac-
tice charge in Case 22–CA–17352 alleging a violation of
Section 8(a)(1) and (4) of the Act.
Carmeci’s account of the conversation is as follows. Scott
Gerow told him that Carmeci might just as well hire him as
he was sure of winning his case against Avon. Carmeci told
him that he would take his chances on that because he had
been told by Jack Critchley, soon after he received a copy
of the first unfair labor practice charge Scott Gerow had
filed, that Gerow lost his seniority with Avon when he
worked for another roofing contractor since his layoff from
Avon. Gerow told him that he had not worked elsewhere.
It is highly unlikely, that Scott Gerow would have told
Carmeci on November 5 that he had not worked for another
contractor after being laid off from Avon. Gerow had not
kept secret his employment with another contractor, Kadco,
while on layoff from Avon.4 He had talked openly with
Local 4’s steward at Avon, Davis, about his being sorry he
left Kadco to go back to Avon for a week in July 1990. I
credit Gerow’s account.
As to Carmeci’s account, that he had asked Jack Critchley
about Scott Gerow’s seniority status, Jack Critchley gave this
version. Carmeci called him in late September or early to
mid-October and asked if Scott Gerow worked elsewhere and
if so, does that mean that he lost his seniority with Avon.
I find it difficult to accept Jack Critchley’s account.
Carmeci has decades of experience in the roofing business.
In his last 15 years, he has been Avon’s superintendent, ad-
ministering the collective-bargaining agreement Avon has
with Local 4. It is improbable that he would have taken the
occasion of Gerow’s filing an unfair labor practice charge in
October to acquaint himself with the seniority provisions of
that agreement.
Avon has not recalled any of the four discriminatees.
Local 4 and Avon assert that the four discriminatees had
lost their recall rights with Avon (1) as the collective-bar-
gaining agreement expressly provides that an employee loses
his place on a seniority roster either by signing the Local 4
referral sheet after layoff or by working for another roofing
contractor after layoff and (2) as they all worked for other
contractors after being laid off from Avon and as they all
signed the Local 4 referral list on September 17. The General
Counsel contends that, notwithstanding the contract language,
the actual practice followed by Avon and Local 4 was that
employees were retained on Avon’s seniority roster, regard-
less of their having worked elsewhere and regardless of their
having sought referrals out of Local 4’s hall.
As noted above, Scott Gerow testified credibly that, prior
to October 1990, Avon had always called him back despite
the fact he worked elsewhere. In that regard, I credit his tes-
timony that, in July 1990, Carmeci telephoned him and asked
him to come back and that, when he told Carmeci that he
was on a job with Kadco and wanted to stay there, Carmeci
persuaded him to return to Avon. As noted above, Gerow
later told the Local 4 steward for Avon that he regretted hav-
ing left Kadco to return.
I credit also the testimony of Kenneth Alley, a Local 4
member, which established that Carmeci recalled him to
work, based on his seniority, notwithstanding that Carmeci
knew he had been working for another roofing contractor
since his layoff from Avon.5
503AVON ROOFING & SHEET METAL CO.
recalled to replace him.) Avon would have me discredit Alley’s ac-
count of his conversation with Carmeci on the ground that Alley
made no record of it in his notebook, even though he testified that
his notebook contained a complete record of all matters relating to
his work assignments. His notebook had been placed in evidence by
the General Counsel to corroborate his testimony and Alley ex-
pressed surprise when he could not find, in his notebook, a reference
to that conversation. The notebook contained personal data and crude
language as to some of the jobs he worked on. Notwithstanding that
the notebook did not corroborate his account, I still credit Alley’s
testimony. His account was vivid. It is unlikely that he concocted
it to help Gerow. He lacks the sophistication to have conjured up
so plausible an account as to how two less senior employees were
recalled ahead of him. Records of hours worked by Local 4 mem-
bers disclose that Alley worked for Barrett Roofing as of August 27
and that the Gavenos came back to Avon at the same time.
6 The panel majority holding at fn. 12 in Allbritton Communica-
tions, 271 NLRB 201, 205 (1984), indicates that the steward’s state-
ment does not constitute an admission against interest by Local 4.
I find that Avon has followed the practice of recalling em-
ployees from layoff according to its seniority roster, regard-
less of the fact that they had worked for other contractors
since their layoff or the fact that they had signed the Local
4 referral sheet. Local 4’s steward at Avon had to be aware
of this practice; the evidence also discloses that employees
call in to the Local 4 hall to advise where they are working,
and that employers file regular reports with Local 4 as to
contributions to various funds for their respective employees.
In short, the practice described above has been allowed to
supersede the language of written agreement between Avon
and Local 4.
2. Analysis
The General Counsel has the burden of establishing, by a
preponderance of the evidence, the essential elements of the
unfair labor practices alleged. Ramar Coal Co., 303 NLRB
604 fn. 1 (1991). It is incumbent on the General Counsel to
make out a prima facie case that Local 4 asked Avon to fore-
go recalling the four alleged discriminatees and that Avon
failed to do so based on that request; the General Counsel
must also make out a prima facie showing that Avon failed
to recall Scott Gerow because he had filed an unfair labor
practice charge against it. Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981). See also NLRB
v. Transportation Management Corp., 462 U.S. 393 (1983).
Once the General Counsel has established a prima facie case,
the burden shifts to the respondent to show that it would
have taken the same action, notwithstanding the alleged dis-
crimination. Electromedics, 299 NLRB 928 (1990); P.I.E.
Nationwide, 295 NLRB 382, 388 (1989).
The evidence in this case discloses that the Gerows had
talked, from time to time, with various employees about op-
posing the Critchleys for control of Local 4. Scott Gerow
also made his interest clear when he told Jack Critchley of
it on September 17, 1990. The evidence also discloses that
Michael Henshaw had protested to Jack Critchley that roof-
ers were not being referred out of Local 4’s hall in accord-
ance with the signing sheet and that John Gerow later en-
dorsed Henshaw’s action. As to the fourth discriminatee,
Nave, he rejected Jack Critchley’s request that he refrain
from being with the Gerow group.
Local 4’s animus as to the foregoing activities is clear
from the coercive conduct of Michael Critchley. Also, Jack
Critchley impressed me as one who is easily angered. He has
been business manager of Local 4 for 32 years without oppo-
sition. It is easy to understand, in this context, Michael
Critchley’s urging Henshaw to eat a little humble pie to allay
Jack Critchley’s feelings. Further evidence of animus is con-
tained in the statement later of the Avon shop steward that
the Critchleys were pressuring Avon not to recall the
discriminatees.6
The credited evidence discloses too that Avon’s super-
intendent told Scott Gerow that he was not recalled because
he had filed an unfair labor practice charge against him. The
accounts given by the superintendent and by Jack Critchley
as to why Scott Gerow was not recalled are at variance.
An unlawful act, in the absence of direct evidence, is gen-
erally established through inferance from the record as a
whole. Continental Can Co., 291 NLRB 290, 291 fn. 5
(1988). While there is no testimony as to an express request
having been made by Local 4 to Avon not to recall the al-
leged discriminatees, one may be inferred from the overall
circumstances. Cf. Key Waterproofing Co., 268 NLRB 879,
883 (1989), and cases cited therein. From the circumstances
described below, I infer that Local 4 made such a request of
Avon. Jack Critchley was not mollified by an apology his
son, Michael, sought from Henshaw for having challenged
the referral procedures; he was also perturbed by the
Gerow’s interest, howsoever tentative, to challenge his long
tenure. Local 4 threatened the alleged discriminatees with fi-
nancial ruin in a futile effort to dissuade them from such ac-
tions. Local 4’s steward at Avon warned that the Gerows
would not be recalled because of pressure exerted by the
Critchleys. Jack Critchley talked with Avon’s superintendent
and indicated that Scott Gerow could not be recalled; his tes-
timony, as noted above, as to the contents of that discussion,
is not plausible.
The circumstantial evidence demonstrates that Avon’s fail-
ure to recall the discriminatees was attributable to a request
therefor from Local 4, cf. Electrical Workers Local 262 (Ar-
thur Paul Contractor), 264 NLRB 251 (1982). Such a re-
quest, in the absence of any legitimate basis, is unlawful. Id.
The General Counsel has made out a prima facie case that
Local 4 unlawfully requested Avon not to recall the four
discriminatees from layoff, that Avon unlawfully accommo-
dated Local 4, and that Avon also refused to recall Scott
Gerow because he had filed an unfair labor practice charge
with the Board.
No credible evidence was proffered by Local 4 or Avon
to prove that the four discriminatees would not have been re-
called, about the unlawful motivation.
The contention by Local 4 and Avon that they were sim-
ply applying the provisions of their collective-bargaining
agreement, as to recall rights based on seniority, lacks merit.
There is no credible evidence to support it. Further, the prac-
tice long followed by Avon was never in accord with these
provisions and certainly Local 4 had long acquiesced in that
practice.
I therefore find that Local 4 caused Avon not to recall the
Gerows, Henshaw, and Nave although it had no legitimate
basis to do so and because of their internal union activities,
and that Avon failed to recall them because of Local 4’s un-
lawful request. I further find that Avon refused to recall
504 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
8 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.’’
Scott Gerow because he had filed an unfair labor practice
charge against it.
CONCLUSIONS OF LAW
1. The Respondent Employer, Avon Roofing and Sheet
Metal Co. (Avon) is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Respondent Union, Local No. 4 of the United
Union of Roofers, Waterproofers and Allied Workers of
Newark, New Jersey and Vicinity (AFL–CIO) (Local 4) is
a labor organization within the meaning of Section 2(5) of
the Act.
3. By threatening employees that they would not work
again and with financial ruin because they opposed the lead-
ership of Local 4, Local 4 has engaged in unfair labor prac-
tices within the meaning of Section 8(b)(1)(A) of the Act.
4. By causing Avon to refuse to recall from layoff Scott
Gerow, John Gerow, Michael Henshaw, and Jerry Nave be-
cause of their opposition to the leadership of Local 4 and
without any legitimate basis therefor, Local 4 has restrained
and coerced employees in the exercise of the rights guaran-
teed in Section 7 of the Act and has caused Avon to dis-
criminate against its employees in violation of Section
8(a)(3) of the Act, and Local 4 thereby has engaged in unfair
labor practices within the meaning of Section 8(b)(1)(A) and
(2) of the Act.
5. By refusing to recall those four employees in response
to Local 4’s request, as described above, Avon has engaged
in unfair labor practices within the meaning of Section
8(a)(1) and (3) of the Act.
6. By failing and refusing to employ Scott Gerow because
he had filed an unfair labor practice charge against it, Avon
has engaged in an unfair labor practice within the meaning
of Section 8(a)(1) and (4) of the Act.
7. Respondents Avon and Local 4 have engaged in no
other unfair labor practices alleged in the complaint, as
amended.
8. The unfair labor practices described above in paragraphs
3, 4, 5, and 6 affect commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Local 4 and Avon have engaged in un-
fair labor practices, I shall recommend that they be ordered
to cease and desist therefrom, and to take certain affirmative
actions to remedy the unfair labor practices, to effectuate the
policies of the Act.
Local 4 shall be required to notify the four discriminatees
in writing, and to also notify Avon in writing, that it has no
objection to Avon’s recalling them to work from layoff.
Avon will be required to offer the discriminatees immediate
and full reinstatement to their positions of employment, to-
gether with all seniority and other rights and privileges en-
joyed and, if there are no jobs available for them, to offer
them substantially equivalent jobs. Local 4 and Avon shall,
jointly and severally, make them whole for any loss of earn-
ings they may have suffered because of the discrimination
against them in the manner prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended7
ORDER
A. The Respondent, Local No. 4 of the United Union of
Roofers, Waterproofers and Allied Workers of Newark, New
Jersey and Vicinity (AFL–CIO), its officers, agents, and rep-
resentatives, shall
1. Cease and desist from
(a) Threatening employees that they would no longer work
as roofers if they oppose the leadership of Local 4.
(b) Causing Avon Roofing and Sheet Metal Co. to refuse
to recall employees from layoff without having any legiti-
mate basis therefor and because of their internal union activi-
ties.
(c) In any like or related manner restraining or coercing
employees in the exercise of the rights guaranteed in Section
7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Notify Avon Roofing in writing that it has no objection
to its recalling from layoff Scott Gerow, John Gerow, Mi-
chael Henshaw, and Jerry Nave.
(b) Notify these four employees in writing that it has no
objection to their being recalled by Avon Roofing.
(c) Jointly and severally with Avon Roofing, make these
four employees whole for any loss of earnings and benefits
they suffered by reason of its having caused Avon Roofing
not to recall them to work from layoff in 1990, with interest
thereon, as described above in the remedy section.
(d) Post at its offices, meeting halls, and hiring halls cop-
ies of the attached notice, marked ‘‘Appendix A.’’8 Copies
of the notice, on forms provided by the Regional Director for
Region 22, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately on receipt and maintained for 60 consecutive days in
conspicuous places where notices to members are customar-
ily posted. Reasonable steps shall be taken by the Respond-
ent to ensure that notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent Union
has taken to comply.
B. The Respondent, Avon Roofing and Sheet Metal Co.,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to recall employees to work from layoff pur-
suant to requests from Local No. 4 of the United Union of
Roofers, Waterproofers and Allied Workers of Newark, New
Jersey and Vicinity (AFL–CIO) which have no legitimate
basis therefor.
505AVON ROOFING & SHEET METAL CO.
9 See fn. 8, above.
(b) Refusing to employ an employee because he filed an
unfair labor practice charge with the Board.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer John Gerow, Scott Gerow, Michael Henshaw,
and Jerry Nave immediate and full reinstatement to their
former positions of employment, together with all seniority
and other rights and privileges previously enjoyed, or if those
jobs are no longer available, to substantially equivalent em-
ployment.
(b) Jointly and severally with Local No. 4, make these
four employees whole for any loss of earnings and benefits
they suffered as a result of the discrimination against them,
with backpay to be computed with interest, thereon, as pro-
vided for in the remedy section of this decision.
(c) Preserve and, on request, make available to the Board
or its 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
amount of backpay due under the terms of this Order.
(d) Post at its Newark, New Jersey office copies of the no-
tice marked ‘‘Appendix B.’’9 Copies of the notice, on forms
provided by the Regional Director for Region 22, after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent immediately on receipt and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are customar-
ily posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
Unfair labor practices alleged in the complaint, as amend-
ed, which are not found to have merit, are dismissed.
APPENDIX A
NOTICE TO MEMBERS
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT threaten employees with financial ruin or
threaten not to refer them to work because they have ex-
pressed a desire to run for union office.
WE WILL NOT cause or attempt to cause Avon Roofing
and Sheet Metal Co. to refuse to recall to work from layoff
any of its employees without our having a legitimate basis
to do so or because of their internal union activities.
WE WILL NOT in any like or related manner restrain or co-
erce any employee in the exercise of the rights guaranteed
in Section 7 of the Act.
WE WILL, jointly and severally, with Avon Roofing and
Sheet Metal Co. make Scott Gerow, John Gerow, Michael
Henshaw, and Jerry Nave whole, with interest, for any loss
of earnings and benefits they suffered by reason of our hav-
ing caused Avon Roofing not to recall them from layoff
when we had no legitimate basis to do so and because they
had engaged in internal union activities in expressing opposi-
tion to our leadership.
LOCAL NO. 4 OF THE UNITED UNION OF
ROOFERS, WATERPROOFERS AND ALLIED
WORKERS OF NEWARK, NEW JERSEY AND VI-
CINITY (AFL–CIO)
APPENDIX B
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT refuse to recall from layoff any employees
in order to accommodate a request therefor made by Local
4 of the United Union of Roofers, Waterproofers and Allied
Workers of Newark, New Jersey and Vicinity (AFL–CIO)
unless there is a legitimate basis therefor.
WE WILL NOT refuse to hire any employee because he has
filed an unfair labor practice charge against us.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce any employee in the exercise of the rights
guaranteed in Section 7 of the Act.
WE WILL offer Scott Gerow, John Gerow, Michael
Henshaw, and Jerry Nave immediate and full reinstatement
to their former jobs or, if those jobs are no longer available,
to substantially equivalent positions without prejudice to their
seniority or other rights and privileges previously enjoyed.
WE WILL, jointly and severally, with Local 4 make these
four employees whole, with interest for any loss of earnings
and benefits they suffered as a result of our refusal to recall
them to work based on a request therefor by Local 4 when
it had no legitimate basis to do so or as a result of our re-
fusal to employ Scott Gerow because he had filed an unfair
labor practice charge against us.
AVON ROOFING AND SHEET METAL CO.