Briscoe/Arace/Conduit

National Labor Relations Board - Board Decisions

May 23, 1977

229 N.L.R.B. 872 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Briscoe/Arace/Conduit and Philip Connell and Wal-
ter Clark. Cases 22-CA-6938 and 22-CA-7131
May 23, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On January 27, 1977, Administrative Law Judge
Benjamin K. Blackburn issued the attached Decision
in this proceeding. Thereafter, Respondent filed
exceptions and a supporting brief. The General
Counsel filed his brief to the Administrative Law
Judge in support of that Decision.
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
briefs and has decided to affirm the rulings, find-
ings,t and conclusions 2 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 Respondent, Bris-
co/Arace/Conduit, South Monmouth, New Jersey,
its officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order.
The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3. 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 We agree with the Administrative Law Judge's finding that Respondent
violated Sec. 8(a)(3) and (1) of the Act in selecting Philip Connell, Joseph
Thom, Charles Thom, Walter Clark. and Edward Kutschman for layoff
because they are not members of Local 373. All five were laid off when less
senior members of Local 373 were retained. Respondent asserts that this is
explained by the fact that seniority was not used in determining who should
be laid off. As the Administrative Law Judge finds, however, the only
reasonable explanation for the fact that all nonmembers were laid off before
any members is that Respondent wanted to get rid of nonmembers before
laying off any members. Respondent offers no other explanation which the
Administrative Law Judge credited. Further, that Respondent. contrary to
its contention, in fact does use seniority is indicated by the fact that when it
had to lay off Local 373 members it did follow seniority and laid off the
junior employees first. Finally, Respondent's project manager stated in
April, without indicating any disagreement with Respondent's policy, that
historically Local 373 members have fared better than outsiders in Local
373's jurisdiction. This statement is at least some indication of the
discriminatory attitude with which Respondent approached the task of
selecting employees for layoff herein.
DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN, Administrative Law Judge:
The charge in Case 22-CA-6938 was filed on April 23,
1976.1 A complaint was issued on June 18. The charge in
Case 22-CA-7131 was filed on August 16. The cases were
consolidated for hearing and an amended complaint was
issued on September 24. The hearing was held in Newark,
New Jersey, on October 28. The issue litigated was
Respondent's motive for selecting three employees for
layoff on April 22 and two others on August 13. For the
reasons set forth below, I find that Respondent selected all
five because they were not members of International
Association of Bridge, Structural & Ornamental Ironwork-
ers, Local 373, thereby violating Section 8(a)(3) and (1) of
the National Labor Relations Act, as amended. Because
the remedy would be the same in any event, I do not reach
the question of whether the April incident also violated
Section 8(a)(4) and (1) of the Act.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
briefs, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is a joint venture engaged in the building
and construction industry in the State of New Jersey. It is
composed of Frank Briscoe and Company, Inc., a New
Jersey corporation; August Arace & Sons, a New Jersey
corporation, and The Conduit and Foundation Corpora-
tion, a Pennsylvania corporation. In the 12 months just
prior to issuance of the amended complaint, it received
goods and materials valued in excess of $50,000 at jobsites
in South Monmouth and Sayreville, New Jersey, which
were shipped directly to it by suppliers located outside the
State of New Jersey.
1. THE UNFAIR LABOR PRACTICES
A. Facts
Respondent is the general contractor for a waste
treatment facility being constructed by the South Mon-
mouth Sewage Authority. Its project manager is Frank
I Dates are 1976 unless otherwise indicated.
229 NLRB No. 135
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BRISCOE/ARACE/CONDUIT
McEntee. Its ironworkers' superintendent at that jobsite is
Richard Prybylowski, referred to in the record and
hereafter as Pry. It has hired ironworkers for the South
Monmouth job exclusively through the hiring hall of Local
373, the Perth Amboy local of the Ironworkers Union, of
which Pry is a member. Local 373 has referred both its own
members and members of other locals who have utilized its
hiring hall.
Administrative Law Judge Thomas A. Ricci issued his
decision in International Association of Bridge, Structural &
Ornamental Ironworkers, Locals 373, 45 and 483, Cases 22-
CB-3024, et al., on September 23. He found that Local 373
violated Section 8(bX2) and (I)(A) of the Act by "attempt-
ing to cause and by in fact causing the employer members
of the Building Contractors Association of New Jersey to
discriminate against 14 ironworkers named in the com-
plaint, and other as yet unidentified ironworkers, in
violation of Section 8(a)(3) of the Act." Among the 16
individual ironworkers who signed the charge in Case 22-
CB-3024 on July 24, 1975, were the Thom brothers, Joseph
and Charles, and Philip Connell. The Thom brothers went
to work for Respondent at the South Monmouth project on
January 6; Connell, on March 15. The hearing in the
proceeding before Administrative Law Judge Ricci was
held in late May and early June. As part of his hearing
preparation, counsel for the General Counsel summoned
various persons to his office in April. Connell took a day
off and went to the Regional Office on April 21. He
informed Pry in advance that he would not work on April
21. The Thom brothers went to the Regional Office on
April 22. They did not let Pry know they were taking the
day off.
Around April 22 McEntee decided, for economic
reasons, to reduce Respondent's complement of ironwork-
ers. He instructed Pry to lay off five ironworkers. On April
22 Pry selected Connell, the Thom brothers, Frank Ohearn,
and Everett Heider. None was a member of Local 373.
Among the men not selected for layoff were Local 373
members hired after Connell and the Thom brothers.
Connell was informed of his layoff by Ernest Kuhlwein,
his foreman, on April 22. He sought out McEntee to
protest at being terminated instead of one of the employees
of no greater ability than he who had come on the job after
him. McEntee's only response was "the first shall be last
and the last shall be first."
Joseph and Charles Thom were informed by Local 373's
steward that they had been laid off when they reported for
work on April 23. They, too, went to McEntee. Joseph
Thom said he thought he and his brother were being laid
off because they had made trouble for Local 373 by trying
to transfer into it.2 McEntee told them that his familiarity
2 When the Thorns reported for work on January 6, Michael DeGeorge.
another ironworker, overheard a conversation between Pry and Local 373's
steward. The steward pointed out the Thorns as the brothers who had tried
to force their way into the local and Pry replied, "Well, they will be going
down the road today." The Thoms, of course, did not go "down the road"
on January 6. They worked without interruption until April. I credit
DeGeorge as to this conversation over Pry's denial that he made a comment
about the Thorns.
I I credit Connell and the Thorns over McEntee as to those two
with Local 373 went back to the immediate post-World
War II days and the situation had always been the same-
the local men always stayed and the outsiders always
went. 3
McEntee again decided in August to reduce the number
of ironworkers on the job for economic reasons. He
instructed Pry to lay off 13 men. Among those selected by
Pry were Walter Clark, hired on January 16, and Edward
Kutschman, hired on March 12. Neither was a member of
Local 373. Of the other II men laid off, only 3 were
members of Local 373. They were Kenneth DeRose, hired
on July 8, Jose Rodriguez, hired on July 13, and Frederick
Stegway, hired on July 27. As a result of this layoff, only
Local 373 members remained on the job as of August 14.
(Hiring resumed on August 19.) Rodriguez, DeRose, and
Stegway were the least senior Local 373 members on the
job as of August 13. Of seven Local 373 members whose
employment terminated on or before August 13, four4 left
without being laid off. Thus Rodriguez, DeRose, and
Stegway were the only Local 373 members ever laid off by
Pry. Clark and Kutschman, the two employees involved in
the August 13 layoff for whom the General Counsel seeks a
remedy, had more seniority than four of the seven
nonsupervisory Local 373 members who survived the
August 13 layoff.
B. Analysis and Conclusions
The 8(aX3) aspect of this proceeding turns on whether
the Genral Counsel has established by a preponderance of
the evidence that Pry's motive for laying off Philip Connell,
Joseph Thom, Charles Thom, Walter Clark, and Edward
Kutschman was their nonmembership in Local 373 and not
the reasons advanced by Pry. As to the April layoff, Pry
testified he selected Connell because he was a slow worker
and the Thom brothers because they left him shorthanded
on April 22 by taking off without notifying him and
without having the hall send two men as 1-day replace-
ments in their stead. As to the August layoff, Pry testified
that he kept the number of men to which he was ordered to
reduce the crew, retaining those he knew possessed certain
skills and letting everyone else go. He selected men he
knew had rigging or welding ability, he said, because he
anticipated he would need a crew heavy in those skills on
an upcoming job. He acknowledged that he did not check
with the men he let go about their skills, if any, as riggers
and/or welders. However, the work which the men he
retained did after August 13 was principally rod work, just
as it had been before. The additional men whom Pry
obtained from the hall on and after August 19 worked as
conversations. While I do not doubt McEntee's statement that he has never
been a member of the Ironworkers Union, I attach no significance to the
fact that the Thorns remembered his remark as being predicated on having
"worked out of Local 373 on an out-of-town book."
4 More precisely, the record shows that one quit, one was injured, and
one worked only I day as a replacement for a man who was off. As to
Edward Callow, who came on May 3 and went on May II. Pry could not
recall whether Callow had quit, as the General Counsel contended. Pry did
not claim to have laid off Callow.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rodmen. As it turned out, Pry admitted, he did not need
riggers and welders because Respondent wound up
subcontracting the work he was anticipating as of August
13.
McEntee's comments to Connell and the Thom brothers
in April have no weight on the General Counsel's side of
the scale. McEntee's opinion that, historically, Local 373
men have always fared better than outsiders in Local 373's
jurisdiction casts no light on Pry's thought processes. Pry
acted here as an agent for Respondent not Local 373. "The
first shall be last and the last shall be first" is an ambiguous
crack that sheds light on nothing.
Similary, the fact that Pry specifically requested Kutsch-
man from Local 373's hiring hall by name has no weight on
Respondent's side of the scale. At issue is not whether Pry,
as an agent of Respondent, favors Local 373 men over
outsiders when he hires employees. It is whether he favors
them when layoffs occur.
In the final analysis, the question comes down to whether
the General Counsel has established facts which belie Pry's
asserted reasons for selecting Connell, the Thom brothers,
Clark, and Kutschman for layoff. I think that he has. When
economic layoffs occurred, Pry was free to choose any one
he pleased without reference to seniority, as long as his
motive was not one proscribed by the Act. Thus the fact
that the five alleged discriminatees were selected out of
seniority, standing alone, proves nothing. By the same
token, there is nothing inherently incredible in the reasons
advanced by Pry for the choices he made in each instance.
However, the fact that Pry never laid off a Local 373
member until August 13, when the number of employees
McEntee had authorized him to retain left him no choice,
tips the scale in the General Counsel's favor. When
coupled with the fact that selections made on the
nondiscriminatory objective basis of seniority would have
led to the layoffs of Local 373 members rather than the five
men named in the complaint, a conclusion that Pry acted
illegally is inescapable. It is possible that a coin flipped 100
times will come up heads 100 times, but such a result is so
improbable as to be beyond belief. The same principle
applied here causes me to discredit Pry's explanation in
each case. More importantly, it raises the facts to a level
where they provide the necessary evidentiary basis for a
finding that Pry was motivated in each instance, at least in
legally significant part, by the alleged discriminatee's
nonmembership in Local 373. This is as true in the cases of
Connell and the Thom brothers, who were laid off in April
when nonmembers of Local 373 remained on the job, as it
is in the cases of Clark and Kutschman, who were laid off
along with all the other nonmembers still on the job. I find,
therefore, that Respondent violated Section 8(a)(3) and (1)
of the Act by selecting Philip Connell, Joseph Thom, and
Charles Thom for layoff on April 22, and Walter Clark and
Edward Kutschman on August 13, because they were not
members of Local 373.
Because the remedy would be the same in any event, I do
not deem it necessary to pass on the additional allegation
that, in the cases of Connell and the Thom brothers, the
I In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
layoffs also violated Section 8(aX4) and (1) of the Act. If I
were to reach that issue, I would find against the General
Counsel on the ground that he has not established by a
preponderance of the evidence on the basis of the record
considered as a whole that Pry knew, at the time he made
his selections on April 22, that Connell had taken off on
April 21 and the Thom brothers on April 22 in order to
visit the Regional Office.
Upon the foregoing findings of fact, and upon the entire
record in this proceeding, I make the following:
CONCLUSIONS OF LAW
1. Briscoe/Arace/Conduit is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. International Association of Bridge, Structural &
Ornamental Ironworkers, Local 373, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By laying off Philip Connell, Joseph Thom, and
Charles Thom on April 22, 1976, and Walter Clark and
Edward Kutschman on August 13, 1976, Respondent has
violated Section 8(a)(3) and (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
In addition to the usual cease-and-desist order and
notice, an order requiring Respondent to remedy the unfair
labor practices found by reinstating Connell, the Thom
brothers, Clark, and Kutschman and making them whole is
necessary to effectuate the policies of the Act. Backpay will
be computed on a quarterly basis, plus interest at 6 percent
per annum, as prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950), and Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record in this proceed-
ing, and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
ORDER 5
The Respondent, Briscoe/Arace/Conduit, South Mon-
mouth, New Jersey, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Selecting employees for layoff on the basis of whether
they are or are not members of International Association
of Bridge, Structural & Ornamental Ironworkers, Local
373, or any other labor organization.
(b) In any other manner interfering with or attempting to
restrain or coerce employees in the exercise of rights
guaranteed in Section 7 of the Act.
2. Take the following action necessary to effectuate the
policies of the Act:
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
874
BRISCOE/ARACE/CONDUIT
(a) Offer Philip Connell, Joseph Thom, Charles Thom,
Walter Clark, and Edward Kutschman immediate and full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights or privileges, and
make them whole for any earnings they lost, plus interest,
as a result of their layoffs on April 22 or August 13, 1976,
as the case may be.
(b) Preserve and, upon 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 recommended Order.
(c) Post at its jobsites within the geographical jurisdiction
of Local 373 copies of the attached notice marked
"Appendix."6 Copies of said notice, on forms provided by
the Regional Director for Region 22, after being duly
signed by Respondent's authorized representative, shall be
posted by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 22, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT Is FURTHER ORDERED that the complaint be dismissed
insofar as it alleges Respondent violated Section 8(a)(4) of
the Act.
R In the event that the Board's 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found, after a
hearing, that we violated Federal law by selecting employ-
ees for layoff improperly, we hereby notify you that:
The 'National Labor Relations Act gives all employees
these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representa-
tive of their own choosing
To act together for collective bargaining or
other aid or protection, and
To refrain from any or all these things.
WE WILL NOT select you for layoff on the basis of
whether you are or are not a member of International
Association of Bridge, Structural & Ornamental Iron-
workers, Local 373, or any other labor organization.
WE WILL NOT in any other manner interfere with or
attempt to restrain or coerce you in the exercise of
rights guaranteed in Section 7 of the Act.
WE WILL offer Philip Connell, Joseph Thom, Charles
Thom, Walter Clark, and Edward Kutschman immedi-
ate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
rights or privileges, and make them whole for any
earnings they lost, plus interest, as a result of their
layoffs on April 22 or August 13, 1976, as the case may
be.
BRIscoE/ARAcE/CoNDUIT
875