Benjamin Co., Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1975

218 N.L.R.B. 1382 (N.L.R.B. 1975)

1382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
George R. Golant d/b/a Benjamin Co., Inc . and Yvon
Brodeur. Case I -CA-10129
June 30, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
Thereafter, briefs were filed with the Administrative Law
Judge on behalf of General Counsel and Respondent.
Upon the entire record in the case, and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
On March 24, 1975, Administrative Law Judge
Herbert Silberman issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting bnef.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and bnef
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
HERBERT SILBERMAN , Administrative Law Judge: Upon
a charge filed by Yvon Brodeur, on September 30, 1974, a
complaint was issued on November 18, 1974, alleging that
George R. Golant d/b/a Benjamin Co., Inc., herein
sometimes called the Respondent or the Company, has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(1) of the Act. In substance, the
complaint alleges that on September 30, 1974, Respondent
discharged his employees Yvon Brodeur and Real Brodeur
"because Yvon Brodeur was filing a grievance with the
Union's Shop Steward on the site regarding conduct of the
Respondent allegedly violating the Union agreement." The
answer to the complaint , among other things , denies that
the Respondent has engaged in the alleged unfair labor
practices.' A hearing in this proceeding was held on
January 13 and 14, 1975, in Boston, Massachusetts.
1 In his posttnal brief General Counsel argues "Respondent 's untimely
Answer and failure to Answer Paragraphs 10 and 12 constitutes an
admission of the allegations in the Complaint under Section 102.20 and
102.21 of the Board 's Rules and Regulations ." However , it is both untimely
and inappropriate for the first time in a posttnal brief to place in issue any
questions relating to the sufficiency of the answer
2 At the hearing George R . Golant asserted that he was appearing for
Benjamin Co ., Inc, and that he was not appearing for himself. However,
218 NLRB No. 211
George R. Golant, who is not a practicing attorney,
represented himself in this proceeding. At the hearing,
Golant argued that the proper party Respondent is not
himself but Benjamin Co., Inc., a Massachusetts corpora-
tion. General Counsel averred that a search was made at
the offices of the secretary of state for the Commonwealth
of Massachusetts, the States of New Hampshire, Delaware,
and Connecticut, and no corporation under the name of
Benjamin Co., Inc. is chartered in any of these jurisdic-
tions. Although George R. Golant testified that he is
president, treasurer, and general manager of the corpora-
tion, he had no personal knowledge as to whether a
certificate of incorporation had been filed for Benjamin
Co., Inc., or whether any shares of stock in the corporation
have been issued. As George R. Golant did not produce
any evidence that there is in existence a corporation
chartered under the name of Benjamin Co., Inc., I find, as
alleged in the complaint , that at all times material herein
George R. Golant was engaged in business as an individual
proprietor using the trade name and style of Benjamin Co.,
Inc.
Golant, who is in the business of installing sheetrock and
performing related carpentry work, has a contract with
Taylor, Woodrow, Blitman Construction Company, pur-
suant to which Golant is installing drywall, or sheetrock,
and performing related carpentry at a project consisting of
three buildings which is known as the Crowninshield
Estates. The contract was entered into in June or July 1974.
It is anticipated that the work to be performed by Golant
thereunder will be completed about March 1975, and
Golant will be paid in excess of $400,000 for the materials
he furnishes and the services he performs. Taylor,
Woodrow, Blitman Construction Company is a Delaware
corporation . In connection with the work it is performing
in the Commonwealth of Massachusetts , it has received
goods from points outside the Commonwealth valued in
excess of $50,000. I find that George R. Golant is an
employer within the meaning of Section 2(2) of the Act
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.2
H. THE LABOR ORGANIZATION INVOLVED
Local 888, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO (herein referred to as the
Golant participated actively in the trial and filed a brief with the
Administrative Law Judge with respect to the substantive issues litigated at
the hearing . Accordingly, despite Golant's assertion at the hearing that he
was appearing only on behalf of Benjamin Co., Inc., because of his
participation in this proceeding I construe his appearance to be a general
appearance rather than a special appearance on behalf of the nonexisting
entity, Benjamin Co., Inc.
BENJAMIN CO., INC.
Union), is a labor organization within the meaning of
Section 2(5) of the Act. Local 888 is a member of the North
Shore District Council of Carpenters, herein sometimes
called the Council. During the times material hereto, the
business representative of the Council was Joseph F.
MacComisky and the secretary of the Council was Edward
Stanton.
III. THE ALLEGED UNFAIR LABOR PRACTICES
When the Company obtained the contract to install
drywall partitions at the Crowninshield Estates, it entered
into an agreement , executed on July 30, 1974, whereby it
agreed to abide by the terms of the subsisting agreement
between the Associated General Contractors of Massachu-
setts , Inc., and the Council.3 The agreement contains a
union-security provision and it would appear that all
Respondent 's employees, during the times material hereto,
were union members . Pertinent to this proceeding are the
following provisions of the collective-bargaining agree-
ment:
ARTICLE IV
REGULAR SHIFT , DAILY AND WEEKLY HOURS
Section 1 . Eight (8) hours shall constitute a regular
work day between the hours of 7 a.m. to 5 p. m. separate
and apart from a shift period. All work performed on
the job during the recognized lunch period shall be paid
for at two times the basic rate.
Section 2. Forty (40) hours, as herein specified daily,
shall constitute a regular work week, in which work is
to be performed during working hours as set forth in
Section 1, this Article.
ARTICLE VII
OVERTIME RATE AND CONDITIONS
Section 1. Any work performed before or after the
regular shift hours and on Saturdays, Sundays and
Holidays shall be paid for at two times the basic wage
rate, except all overtime hours worked on Commercial,
Industrial, Residential and Institutional maintenance,
alterations, repairs, remodeling and tenant change
work, which shall be paid for at time and one-half the
basic wage rate, with the exception of Holidays which
shall remain at two times the basic wage rate. Such
overtime should be divided equally among the carpen-
ter employees on the job. This provision will not apply
to any new construction.
Section 2. If overtime work is performed, it shall be
done by carpenters who are working on the job
previous to the overtime period and such additional
carpenters as may be necessary in the judgment of the
employer.
S The Company is not a member of the Associated General Contractors
of Massachusetts, Inc.
4 Real Brodeur did not testify at the hearing No specific evidence was
ARTICLE X
TERMS OF EMPLOYMENT
1383
Section 1. Carpenters are to be paid weekly and in no
case shall more than 3 days be withheld.
Section 2. Carpenters are to be paid in cash on the job
during working hours. Payment may be made by check.
This privilege may be withheld only for doubt of ability
to pay wages.
s * s
Section 9. Carpenters shall be given five minutes before
noon and also five minutes before quitting time each
day in which time they shall pick up and secure their
tools. In no case shall the carpenters leave the job until
quitting time.
Section 10. A coffee break not to exceed five minutes
shall be allowed every morning and every afternoon
and on each shift when shifts are being worked with the
understanding that one man shall be allowed to get the
refreshments, if such are available at the job site, and
the carpenters shall not leave their place of work. The
break shall start when the refreshments are brought to
the place of work.
The Crowninshield Estates job (herein sometimes called
the Project) involves three buildings, one of which is
referred to as the "I" Building and another of which is
referred to as the "V" Building. For the most part the
Company's employees were assigned to work in teams of
two. On September 30, 1974, and for some time prior
thereto, one such team was composed of Yvon and Real
Brodeur, who are brothers. The normal hours of work are
from 7:30 a.m. to 4 p.m. On September 30 at about 8:45
a.m., Yvon Brodeur was in Building "V," although his
assigned place of work then was in Building "I ." According
to Yvon Brodeur, the reason he had left his work was that
he was seeking to voice a grievance to the shop steward,
Adolph (Ace) Magesky. While searching for Magesky in
Building "V," Yvon Brodeur encountered George R.
Golant, who thereupon discharged both Yvon Brodeur and
his brother, Real. Respondent's position simply stated is
that the Brodeurs were discharged because they were not
working during a period when they should have been
working and for which they were being paid. General
Counsel's position is that the discharges violated Section
8(a)(1) because they abridged the employees' right to
process grievances under an existing collective-bargaining
agreement.
Yvon Brodeur was hired by George Golant on July 22,
1974, to work on the Project as a journeyman carpenter.
Presumably his brother, Real, was hired at the same time.4
When they were hired their father, Antonio Brodeur, was
working on the project. George Golant testified that he has
had a long business relationship with Antonio Brodeur and
has considerable respect for the gentleman. About August
adduced as to when he was hired , but the testimony of George Golant and
Yvon Brodeur suggests that the brothers were hired at the same time.
1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1974, Antonio Brodeur left the Company's employ to go to
Florida. His two sons remained and continued as working
partners at the Project.
Towards the end of September, Golant made arrange-
ments with the Union to perform drywall work on an
overtime basis on Saturday, September 28. The Company
asked its best producing crews to work that Saturday and,
in addition , brought in from New Hampshire some union
work crews, who were not regularly employed by Respon-
dent, to work on that day only.5 In the afternoon on
Friday, September 27, Yvon Brodeur, who was not invited
to work overtime the next day, heard that there was going
to be overtime work on September 28. Yvon Brodeur was
of the opinion that under the terms of the collective-
bargaining agreement he should have been offered an
opportunity to work overtime if there was going to be
overtime work. To determine whether he might have been
improperly deprived of overtime work, on September 28 he
went to the jobsite, and was able to persuade the security
guard to let him enter the premises where he observed
company employees working. He also induced the security
guard to lend him the sheet on which the employees on the
job signed in for the day. He made a Xerox copy of the
sheet . In order to gain entry onto the jobsite, Yvon
Brodeur wrote his name on the sign-in sheet. When George
Golant inspected the sign-in sheet at the end of the
workday on September 28, he noticed Yvon Brodeur's
name and therefore knew that Brodeur had been on the
jobsite.s
Yvon Brodeur telephoned the Council's secretary,
Edward Stanton, and complained that "people were
working illegally," and asked Stanton "to file my grievance
on Monday with the business agent." 7 Yvon Brodeur
testified , "I had decided on Saturday, when I was met with
the actual thing. . . . I was going to report it [to] the
[business agent ] of the local union."8
Yvon Brodeur reported for work at the Project at 7:30
a.m. on September 30. He saw Steward Magesky when he
arrived at the jobsite but did not then speak to Magesky.
According to Yvon Brodeur, at 8:45 a.m., "I set my tools
down to go look for Ace [Magesky ] to report the incident."
Yvon Brodeur was then working in "I' Building and went
to "V" Building which was about 400 yards away. Because
Yvon Brodeur was teamed with his brother, Real, during
S Union Steward Adolph Magesky testified that the Company obtained
permission from the Union to employ sheetrockers (carpenters who install
drywall) to work overtime on September 28, and that he was on thejob that
Saturday . There is no evidence in the record suggesting that any union
official deemed the work done by Respondent on September 28 with the
persons he employed on that day to have been in violation of the applicable
collective-bargaining agreement.
6 Golant was not informed as to why Yvon Brodeur went to the Project
on September 28 It is thus a subject of conjecture whether Golant suspected
that Yvon Brodeur was aggrieved because he was not given an opportunity
to work on that Saturday
7 Brodeur 's testimony indicates that he made two telephone calls to
Stanton on September 28. In the first he voiced his suspicion that work was
being performed illegally and in the second he requested Stanton to file a
grievance on his behalf with the business agent.
8 Steward Adolph Magesky testified that on Sunday night he received a
telephone call from Business Agent Joseph MacComisky who asked , "[D ]id
you work Saturday." Magesky informed MacComisky that "we worked
Saturday ," and that George Golant had a permit to do sheetrock work that
day. MacComisky informed Magesky that MacComisky had received a
telephone call from Stanton reporting a complaint from Brodeur and that he
the period that Yvon was away from his assigned place of
work his brother could not do any productive work .9
Brodeur's testimony as to what then occurred is as
follows:
He met George Golant on the stairs in "V" Building.
Golant asked what he was doing without his tools and
Brodeur replied that he was looking for Magesky. Golant
walked away without saying anything. Five to 10 minutes
later, as Brodeur was walking down a flight of stairs, he
found Magesky talking with George Golant. Brodeur
asked to speak with Magesky in private. George Golant
"[t]urned around and blew up and said, `you and your
brother are both fired.' "Golant explained that the reason
was that "[o]ur work didn't suit his needs." is Yvon
Brodeur testified that he "spent from 15 to 20 minutes" on
September 30 walking around the Project looking for
Magesky. After his encounter with George Golant, Yvon
Brodeur telephoned Business Agent Joseph MacComisky,
reported that he had been fired for trying to process a
grievance, and insisted on meeting with MacComisky
privately at the union hall. I' The meeting at the union hall
concluded when MacComisky informed Yvon Brodeur
that he would discuss the situation with George Golant.
George Golant's testimony as to what happened on
September 30 is as follows:
About 9 a.m., as he was walking up the stairs between
the third and fourth floors of "V" Building, he encountered
Yvon Brodeur, who was not carrying any tools and who
was supposed to have been in "I" Building . Golant asked
why he was not working and Brodeur answered, "I am
looking for Ace [Magesky]." Golant responded that
Brodeur was supposed to be working and that he could see
Magesky when the latter made his rounds. Golant then
"blew up" said, "[Y]ou left early on Friday and I saw you,
and you have been abusing all privileges. I have had it with
you. I have to lay off men anyway. . . . You're fired and
your brother is fired. Pick up your tools and leave." They
parted. About 5 minutes later Golant again met Brodeur in
the same building and yelled at Brodeur, "[Y]ou are fired.
Now get off the job because you are trespassing." While
Golant was shouting at Brodeur, Magesky approached
them and may have heard what Golant said.
George Golant testified that he fired Real Brodeur, as
well as Yvon Brodeur, because the brothers "were working
would try to visit the Project on Monday to see what had happened.
9 Yvon Brodeur testified that instead of complaining directly to the
Union's business agent he stopped work to look for the shop steward
"[s ]unply because I thought it was proper procedures and proper steps to
take." Brodeur did not give any basis for this opinion on his part.
10 On cross-examination Yvon Brodeur testified , "I will say that there is
a possibility I did say something to [Magesky ] that I was fired, but I don't
think that there was need to say anything because he was there present and
heard the actual thing, so I didn't see any reason to repeat."
11 According to Yvon Brodeur , he informed MacComisky that both he
and his brother had been fired and that George Golant had said it was
because they were not meeting production standards . Brodeur told
MacComisky that he had a list of the people who had worked on Saturday
and he thought that "this was illegal " MacComisky replied that Brodeur
had no jurisdiction . Brodeur responded that he was a member of the Union
and should have been given overtime work on Saturday. MacComisky
explained to Brodeur "that because it is difficult for the employer to get
good men working . . . [p ]eople who don't f- around on the job, that this
man had . to make up some money so he would only employ the good
11men ...
BENJAMIN CO., INC. 1385
as a team . And one man cannot do the work of two. So if
one man is walking around, the other man is doing
nothing." Shortly thereafter Golant wrote the final pay-
checks for Yvon and Real Brodeur which were given to the
men.
George Golant testified that although he knew that Yvon
Brodeur had been at the Project on September 28 he had
no conversation with Yvon Brodeur on Monday, Septem-
ber 30, about the overtime work which was performed the
previous Saturday. The testimony of Yvon Brodeur is not
to the contrary.
About 9:30 a.m., after the Brodeurs were given their last
checks, Magesky met George Golant and asked why they
had been fired. Golant replied that he had fired them
because he was not satisfied with their work and that he
didn't like the way they quit early and walked around the
building. Magesky then said he would have to telephone
MacComisky about the matter.
Within an hour Business Agent MacComisky came to
the Project and in the presence of Magesky asked Golant
why the latter had discharged the two Brodeurs. George
Golant explained that he had fired them because they were
not producing and in particular he had fired Yvon because
he was walking through the building. MacComisky tried to
persuade Golant to rehire the Brodeurs. Golant was
adamant that he would not rehire Yvon Brodeur, stating
that Yvon was a troublemaker who didn't work himself
and who interfered with other people who were working.
However, Golant finally agreed to take back Real Brodeur.
Golant told MacComisky that he could inform Real to
return to work the next morning. However, neither
Respondent, MacComisky, nor Magesky transmitted the
message to Real Brodeur.
The union-steward on thejob, Adolph Magesky, testified
as follows:
On Saturday, September 28, he learned from the security
guard on the Project that Yvon Brodeur had been at the
jobsite and had demanded the list of people who were
working. The guard indicated to Magesky that Yvon
Brodeur was disturbed and Magesky understood that it
was "[o ]n account of he didn't work Saturday." Magesky
saw Yvon Brodeur on Monday, September 30, at about
7:30 a.m., but they did not then talk to one another.
About 9 a.m., as he was walking along the hall on the
first floor, he came upon George Golant and Yvon
Brodeur and he heard George Golant tell Brodeur,
"[Y]ou're through, get out of here." Brodeur then ap-
proached Magesky and said, "I've just got fired." Brodeur
had a piece of paper in his hand and, although Magesky
didn't read it, according to Magesky, "common sense will
tell you" that the paper was the list that Brodeur had
obtained from the security guard the previous Saturday.
Magesky went to Golant and asked him whether he was
laying off or firing Brodeur. Golant replied, "he's through."
Golant repeated, "I just don't want him, he's done. I don't
want him on the job and that's it." 12
After speaking with George Golant, Magesky telephoned
Business Agent Joseph MacComisky who informed Mage-
sky that he would come to the jobsite to find out what had
happened. Within an hour MacComisky arrived. Magesky
met MacO misky who was in the company of Yvon and
Real Brodeur. MacConusky told the Brodeurs to remain
where they were while he and Magesky looked for George
Golant. They found Golant on the fifth floor of the
building. IviacComisky asked Golant what had happened.
Golant said he had fired Yvon and Real Brodeur and
explained that they were not doing a sufficient amount of
work and were leaving the job early and were coming to
work late. After further discussion , George Golant agreed
that Real Brodeur could return to work but that he would
not reemploy Yvon Brodeur. However, the Brodeurs did
not wait as they had been asked to do and this message was
not given to them.
While there are discrepancies among the testimony of
Yvon Brodeur, George Golant, and Adolph Magesky,13
there are no conflicts as to the operative facts, which are:
At about 8:45 Yvon Brodeur left his work in "I" Building,
which meant that his partner Real Brodeur also stopped
work; Yvon went to "V" Building to search for Adolph
Magesky in order to complain about the fact that he had
not been assigned overtime work the previous Saturday; in
"V" Building Brodeur met George Golant and, in response
to a question from Golant, informed Golant that he was
looking for Magesky, but there was no discussion about
Brodeur's grievance; George Golant became angry and
thereupon discharged both Yvon and Real Brodeur; and
from 15 to 20 minutes had elapsed between the time that
Yvon Brodeur left his work until he met George Golant
and was discharged. On these undisputed facts was there a
violation of the Act?
12 On cross-examination , Magesky testified as follows.
Q As a matter of fact, you heard Golant and Brodeur arguing
about something before Golant said "you're off the job. You're done "
Isn't that nght9
A. Not this day, no.
Q Now they were not arguing about Brodeur's production, were
they?
A. They were arguing about that Saturday
Q. Right. They were arguing about the overtime on Saturday isn't
that right?
A. Right.
Q And Brodeur was bringing that grievance to you, wasn't he
about the overtime on Saturday?
A. He didn't bring it to me.
Q. (By Mr . Kowal) Well, he brought the list to you at some time
you say on Monday , and that was about the overtime work?
A. It was apiece of paper . I don't know what was on it
Q. He didn't describe it at all?
A No.
Neither Yvon Brodeur nor George Golant testified that on September 30
there was any discussion between them about the work done the previous
Saturday or about Brodeur 's grievance. Despite Magesky 's answer, "Right,"
to General Counsel's question , "They were arguing about the overtime on
Saturday, isn't that right," I find that there was no discussion between
George Golant and Yvon Brodeur on September 30 about "overtime on
Saturday "
is As between Yvon Brodeur and George Golant, I believe Golant was
the more reliable witness. Golant was argumentative . But he undertook the
task of acting as his own counsel and did not distinguish between his
functions as an advocate and as a witness . Despite the indignant zeal with
which he conducted himself I beheve that Golant was truthful While I do
not think Yvon Brodeur was deliberately untruthful , I am of the opinion
that he was more selective in his recollection of the events than Golant.
Furthermore , Magesky's testimony tended to corroborate Golant more than
it did Brodeur.
1386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The applicable collective-bargaining agreement has no
provision which relates to whether employees may or may
not file grievances during worktime. General Counsel
attempted to prove that "practice" permitted employees to
present grievances to their shop stewards during working
hours. Although Respondent is not a member of the
Associated General Contractors of Massachusetts, herein
referred to as the AGC, General Counsel called as a
witness to establish the existence of such practice James A.
Odoardi, the assistant director of labor relations for the
AGC. Odoardi, testified as follows:
Q. Is it normal in the building trades for a worker
who has a grievance during working time to go to a
shop steward to report that grievance?
A. Absolutely normal.
Q. Does this happen normally?
A. Yes. The reason a steward is selected is to act as
the liason [sic] between the employees and any
grievances or claims to different craft jurisdiction.
Q. Does this refer only to the North Shore
Carpenters?
A. No, it is an industry wide practice.
Odoardi further testified:
Q. How much time would be considered the
amount of time to be used in making these reports?
A. Well there is no written parts of the agreement
for this. As a matter of practicality he would have to
say reasonable amount of time depending on the size of
the job, how far one would have to go to locate his
steward-
Odoardi was questioned as to the basis for his opinion.
He stated that he based his opinion upon his personal
experience as a bricklayer and upon the experience he has
gained in his employment with the AGC. He was employed
as a bricklayer for 9 years, 2 years as a journeyman and 7
years as an apprentice. During 4 years of his apprentice-
ship he only worked summers as he then was a full-time
student . Odoardi testified that "[i]n my experience as an
apprentice and a journeyman bricklayer, I have seen this
done" (referring to employees grieving to their job
stewards during working hours). Odoardi testified that his
role with the AGC is "more or less to act as an impartial
mediator between labor and management . Basically to
make sure that the collective bargaining agreements the
AGC is involved with do get the correct interpretation." 14
When asked to explain how he learned about grievance
practices during his period of employment with the AGC,
Odoardi explained that he was involved in at least one
arbitration, and perhaps as many as three arbitrations,
where the grievant had presented his grievance during
14 Odoardi did not testify as to the length of his employment with the
AGC. However, Odoardi appeared to be a man in has early thirties. He
worked 9 years as a bricklayer It thus is not likely that he has occupied his
present position for more than 5 years.
ii Odoardi 's testimony is uncertain whether in the one case , or up to
three cases, with which he is fanuhar the employee left his work to search for
the steward . Odoardi testified : "I have been involved in arbitration in which
this matter of contacting the steward has been brought up. And it was never
contested whether the employee went looking for the steward, or the
working time and no one had contested the grievant's right
to do so.15 Odoardi further testified that he has never seen
anything in writing which indicates that a policy or
practice exists which permits employees to present griev-
ances during working time and that he never discussed the
existence of such policy or practice with his immediate
superior, Robert Dickinson, who is in charge of labor
relations for the AGC.
The only additional evidence offered by General
Counsel regarding the presentation of grievances by
employees to job stewards was the testimony of Kenneth
Reavy. Reavy, who is an apprentice presently employed by
George Golant, testified that he has been working in the
building trades for about 2-1/2 years and that twice on
other jobs during working time he complained to the shop
stewards that plumbers were performing work which
should have been assigned to carpenters. He further
testified that in neither instance was he reprimanded
although he was away from his work in each case from
between 15 minutes to a half hour. It is noted that Reavy
did not testify that his employers on those occasions knew
that he was away from his work.
George Golant argues that it is the practice on the
Crowninshield Estates job for the carpenter steward to
make the rounds of the Project twice each day, during
which time the employees have an opportunity to speak
with the steward. Among the reasons for this practice is
that the project is extensive and it would be difficult for
employees to locate the job steward. Furthermore, Golant
argued that Brodeur's complaint was not urgent and there
was no pressing reason for him to leave his work on
September 30 for the purpose of presenting his complaint.
The uncontradicted evidence adduced at the hearing
supports Golant's arguments. Union Steward Magesky
testified that he makes the rounds of the job once in the
morning and once in the afternoon. He further testified
that employees are not permitted to leave their work to
present grievances to him. According to Magesky, "When
the steward walks around his job, he sees every man that's
possible." The testimony of Yvon Brodeur tends to
corroborate Magesky. According to Brodeur, "[Magesky]
came up to me at different times himself and talked to me
about union matters." 16
I find that the testimony of Odoardi and Reavy do not
prove that there is a general practice in the building and
construction industry in the area which sanctions employ-
ees leaving their work without permission to search for
their shop stewards in order to present grievances.
Odoardi's knowledge of such practice was restricted to his
personal experience which was limited. He acquired no
knowledge about the subject from the director of labor
relations of the AGC or any other authoritative source.
Reavy's experience was so limited that his testimony is
steward just happened to be around at the right time."
19 Magesky testified that "Yvon was always coming to me , asking me
questions" on working time, and at no time did Magesky advise Yvon
Brodeur that he wasn 't supposed to leave his work to look for the union
steward . There is no evidence that Magesky had any authority to establish
working practices for the Company on the job. The fact that Magesky did
not caution Yvon Brodeur against leaving his work to search for the steward
did not give Brodeur the right to do so.
BENJAMIN CO., INC. 1387
almost valueless . On the other hand, the uncontradicted
evidence is that Respondent's employees were not permit-
ted to leave their work to find the steward, although the
Company permits employees to speak with the steward
during his twice daily rounds of the Project.
Respondent's position essentially is that the Brodeur
brothers were unsatisfactory employees and that George
Golant in anger fired both men when he met Yvon
Brodeur in the morning on September 30 in a building
away from his assigned place of work.
Stuart Golant, the son of George Golant and the
foreman on the project, testified that after Antonio
Brodeur left the project in August the work of his sons
became "outrageously poor." As examples, Stuart Golant
testified that Yvon and Real Brodeur were assigned to
install metal partition frames on the fifth floor of one of the
project buildings. Stuart Golant expected the work, which
involved 18 apartments, to be completed in 9 days at the
rate of 2 apartments per day. Instead, it took approximate-
ly 5 weeks to complete the framing on that floor and
ultimately Stuart Golant replaced the Brodeurs with
another team in order to finish the work. On another
occasion, when Stuart Golant asked the Brodeurs to move
some sheetrock, they complained that they were unable to
do the work because they had bad backs. In mid-
September, Stuart Golant recommended to has father that
the two Brodeurs should be laid off or moved to a different
position. However, George Golant told his son to try to
keep the two Brodeurs at work if possible because of his
relationship with their father. During the last 2 weeks of
September, the Brodeurs were assigned primarily to install
sheetrock. Whereas most teams installed about 50 boards
per day, the Brodeurs installed only 30. I credit the
testimony of Stuart Golant, which was not effectively
refuted, concerning the work deficiencies of the Brodeurs.
In addition to their poor work performance, Yvon
Brodeur took advantage of the privileges accorded the
employees. Thus, he took 10-minute coffeebreaks when the
allowed time was 5 minutes. On one occasion, about
September 16, George Golant observed Yvon Brodeur
making a telephone call when he was supposed to be at
work. Further, on September 27, at about 3:53 p.m., Yvon
Brodeur ran into George Golant outside the building,
which meant that Yvon Brodeur had stopped work at least
10 minutes before the quitting time. George Golant
questioned him as to why he had quit so early.
George Golant testified that the reasons he discharged
the Brodeurs were : (1) referring to the September 30
incident, Yvon Brodeur was walking around on company
time ; (2) on other occasions he was found to be absent
from his assigned place of work; and (3) the productivity of
Yvon and Real Brodeur was far below expectations.
bargaining agreement had been violated by Respondent
when he was not offered overtime work on Saturday,
September 28, while persons who had not previously been
employed by Respondent were permitted to work on that
day. On Monday, September 30, he intended to complain
to his shop steward about the subject. Where a collective-
bargaining agreement is in existence , conduct on the part
of employees, or even a single employee, which implements
the provisions of the agreement is, in effect , an extension of
the concerted activity which gave rise to the contract. For
this reason, the efforts of an employee to enforce the
provisions of a collective-bargaining agreement by com-
plaining to, or filing a grievance with, his shop steward
constitutes concerted activity which is protected by Section
7 of the Act.17 However, the exercise of such right "is
tempered by the employer's right to exact a day's work for
a day's pay and to maintain discipline, and does not reach
activities which inherently carry with them a tendency
toward, or likelihood of, disturbing efficient operation of
the employer's business." 18
Yvon Brodeur had no right without permission to leave
his place of work on September 30 to search for the shop
steward in order to register a contract complaint with him.
Contrary to General Counsel, I fmd that such practice was
neither permitted nor condoned on the Project. Respon-
dent did not inhibit his employees from registering
complaints or filing grievances with the shop steward and
for such purpose permitted the shop steward to make the
rounds of the job twice each day. No reason was given as
to why Yvon Brodeur left his place of work to search for
the shop steward rather than waiting until the shop steward
came to him. There was no urgency to Yvon Brodeur's
complaint. On the other hand, by his own testimony, he
spent from 15 to 20 minutes looking for Steward Magesky
during which time his brother, as well as himself, was not
working, although both were drawing pay for the time.
"An employee may not act with impunity even though he
is engaged in a protected activity. His rights, derived from
Section 7, must be balanced against the employer's right to
maintain order in his business by punishing acts of
insubordination." 19 The purpose sought to be achieved by
Yvon Brodeur, even though a concerted activity within the
meaning of Section 7 of the Act, did not give him the right
without permission to leave his assigned job during
working time. As that, together with his generally unsatis-
factory performance, was the reason for his discharge and
also the discharge of Real Brodeur, I find that the
discharges of Yvon and Real Brodeur on September 30,
1974, did not constitute a violation of the Act.
CONCLUSION OF LAW
Conclusions
Yvon Brodeur believed that the applicable collective-
17 N L. R B. v. Ben Pekin Corporation , 452 F.2d 205 (C.A. 7, 1971);
NLRB v H C Smith Construction Co, 439 F . 2d 1064 (C A. 9, 1971 ), enfg.
174 NLRB 1173 (1969), NLRB. v. Interboro Contractors, Inc., 388 F2d
495, 499 , 500 (C .A. 2, 1967), enfg 157 NLRB 1295 (1966).
18 Caterpillar Tractor Co v. N LRB, 203 F .2d 357, 358 (C.A. 7, 1956).
Respondent has not engaged in the violations of the Act
alleged in the complaint.
Upon the foregoing findings of fact, conclusion of law,
Accord - Republic Aviation Corporation v. N.LRB., 324 U.S. 793 , 797-798
(1945)
19 Crown Central Petroleum Corp v. N.LR.B., 430 F.2d 724,729 (C.A 5,
1970)
1388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the entire record in this proceeding, and pursuant to ORDER 20
Section 10(c) of the Act, I hereby issue the following
recommended: The complaint herein is dismissed in its entirety.
20 In the event no exceptions are filed as provided by Sec 102 46 of the 10248 of the Rules and Regulations , be adopted by the Board and become
Rules and Regulations of the National Labor Relations Board , the findings, its findings, conclusions, and Order , and all objections thereto shall be
conclusions , and recommended Order herein shall, as provided in Sec. deemed waived for all purposes