E.G. Clemente Contracting Corp.

National Labor Relations Board - Board Decisions

Nov 16, 1994

315 N.L.R.B. 606 (N.L.R.B. 1994)

606
315 NLRB No. 76
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
We adopt the judge’s finding (to which there are no exceptions)
that Charging Party Eric Forbes began his employment with the Re-
spondent in 1990, subsequent to the Respondent’s entering into the
1990–1993 collective-bargaining agreement. In so doing, we find it
unnecessary to pass on the rest of the judge’s discussion in the fifth
paragraph of his findings of fact.
E. G. Clemente Contracting Corp. and Eric Forbes.
Case 29–CA–17207
November 16, 1994
DECISION AND ORDER
BY MEMBERS DEVANEY, BROWNING, AND COHEN
On June 20, 1994, Administrative Law Judge How-
ard Edelman issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, E. G. Clemente Contract-
ing Corp., Staten Island, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
Emily Do Sa, Esq., for the General Counsel.
Michael Salgo, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
HOWARD EDELMAN, Administrative Law Judge. This case
was tried before me on January 11, 1994, in Brooklyn, New
York.
On March 9, 1993, Eric Forbes, an individual, filed a
charge against E. G. Clemente Contracting Corp. (Respond-
ent), alleging that he was discharged because of his member-
ship in, and activities on behalf of, Building, Concrete, Exca-
vating & Common Laborers’ Union, Local No. 731 of Great-
er New York and Vicinity, Laborers’ International Union of
North America, AFL–CIO (the Union). On April 23, 1994,
a complaint issued alleging the discriminatory discharge set
forth in the charge filed above.
Briefs were submitted by counsel for the General Counsel
and counsel for Respondent. Based on my consideration of
the briefs, the entire record, and the demeanor of the wit-
nesses, I make the following
FINDINGS OF FACT
Respondent is a New York corporation with its office and
place of business located in Staten Island, New York. Re-
spondent is engaged in the repair and restoration of water
mains. Respondent annually performs the services described
above, for in excess of $50,000 for various entities located
in the State of New York, which enterprises are directly en-
gaged in interstate commerce and meet at least one Board
standard for the assertion of jurisdiction, exclusive of indirect
inflow or indirect inflow. Respondent admits and I find that
Respondent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
It is admitted and I find that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
It is also admitted and I find that since 1990, the Union
has been the collective-bargaining representative of Respond-
ent’s employees, and has since 1990 been a party to a collec-
tive-bargaining agreement with the Union.
Forbes began his employment with Respondent sometime
in 1990, probably after Respondent entered into its collec-
tive-bargaining agreement with the Union. This is probably
true because Forbes was kept out of the Union by Respond-
ent, although he asked Respondent at various times up to
1992 to notify the Union of his employ and make him a
member, Respondent did not do so.
Sometime in June or July 1992, Forbes contacted the
Union and notified it of his employment. Forbes became a
member of the Union at this time and Respondent was re-
quired to make back payments to the various funds set forth
in the parties’ collective-bargaining agreement, which
amounted to over $20,000. Respondent’s owner, Emil Gary
Clemente, subsequently informed Forbes that he was dis-
pleased by Forbes’ action. Emil Gary Clemente did not tes-
tify in this trial. Thus, Forbes’, who I found to be a credible
witness, testimony is unrebutted and credited.
On the morning of January 5, it was raining very hard.
Forbes, who had worked on a particular jobsite located on
Amboy Road, Staten Island, on January 4, reported to the
same jobsite on January 5 at about 7:30 a.m. He observed
workers who had been working on other jobsites on January
4 presently working on his jobsite. Jeffery Clemente, an ad-
mitted supervisor within the meaning of the Act was in
charge of the Amboy road crew, told Forbes that he would
not be allowed to work today, because of the difficult condi-
tions which required his most experienced workers. An argu-
ment between Forbes and Clemente ensued over the right of
Forbes to work the Amboy jobsite. At some point during this
argument Forbes told Clemente that he was going to com-
plain to the Union, and following this statement, Clemente
told Forbes that he was discharged. Such testimony is con-
sistent with Forbes’ direct testimony and with admissions of
Clemente during cross-examination and in his Board affida-
vit.
Clemente testified in his direct testimony that he merely
told Forbes to go home for the day and come back the next
day. However, such testimony is contradicted by his admis-
sion during cross-examination and his Board affidavit, de-
scribed above. Therefore, I do not credit his direct testimony.
607E. G. CLEMENTE CONTRACTING CORP.
1 If no exceptions are filed as proided 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.
Following his discharge by Clemente, Forbes called Re-
spondent’s office to notify it of his discharge. Forbes first
spoke with Michael Coppotelli, who I find to be a supervisor
within the meaning of the Act, in view of his admission that
he has authority to responsibly recommend hiring and firing
of employees. Forbes informed Coppotelli of his discharge
and of the facts which led to it. Coppotelli told Forbes that
‘‘just wait a day to cool off, then come back to work,’’ ‘‘if
you speak to Jeff [Clemente] I’m sure that he would hire
you.’’
Several days later, Forbes returned to Respondent’s office,
presumably to pick up his pay and spoke with Vincent
Timponelli, Respondent plant manager and an admitted su-
pervisor within the meaning of the Act. Forbes told
Timponelli what had happened and Timponelli told Forbes
‘‘that all he would have to do was go to the job, see the su-
pervisor [Jeffrey Clemente] and I’m sure he [Forbes] could
get the job back again.’’ Timponelli then testified that all
employees who were terminated for arguments on the job
had been ultimately reinstated. I regard such testimony as
gratuitous and not believable. In any event there is no evi-
dence that Respondent ever offered such reinstatement to
Forbes.
Conclusions
It is alleged that Respondent terminated Forbes because he
threatened to file a grievance concerning Respondent’s re-
fusal to let him work the Amboy jobsite on January 5, 1993.
In determining whether an employer terminates an em-
ployee in violation of Section 8(a)(1) and (3), General Coun-
sel has the burden of establishing that Forbes’ union activi-
ties were a motivating factor in such discharge. Once such
factor is established, the burden shifts to Respondent to es-
tablish that the same action would have taken place notwith-
standing such union activity. Wright Line, 251 NLRB 1083
(1980), enfg. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982); NLRB v. Transportation Management
Corp., 462 U.S. 393, 398 (1983).
It is clear that Respondent had prior union animus toward
Forbes in view of his 1992 complaint to the Union concern-
ing his nonmembership. Such complaint cost Respondent
$20,000 in back payments to the Union’s funds plus future
payments on behalf of Forbes. Respondent owner Emil
Clemente expressed his displeasure with Forbes’ action per-
sonally to Forbes. I conclude that such statement in response
Forbes’ filing what must be considered a grievance concern-
ing his nonmembership in the Union is clear evidence of
union amimus. Kuhlman, Inc. 305 NLRB 481, 483 (1991).
It is also clear that discharging an employee because he
threatens to file a grievance with the Union is a violation of
Section 8(a)(1) and (3). NLRB v. City Disposal Systems, 465
U.S. 822 (1984). In the instant case, Jeff Clemente effec-
tively admitted that is exactly why he terminated Forbes.
Thus, Respondent failed to establish that such action would
have taken place notwithstanding Forbes’ union activity. Ac-
cordingly, I find Respondent discharged Forbes in violation
of Section 8(a)(1) and (3).
Respondent has also failed to establish that it effectively
conveyed an unconditional offer of reinstatement to Forbes.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By discharging and thereafter refusing to reinstate its
employee, Forbes, Respondent violated Section 8(a)(1) and
(3) of the Act.
4. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent engaged in an unfair labor
practice, I shall recommend that it be ordered to cease and
desist therefrom and take certain affirmative action to effec-
tuate the policies of the Act.
I recommend that Respondent be required to offer uncon-
ditionally to Forbes full reinstatement to his prior job and,
if such job no longer exists, to a substantially equivalent job,
without prejudice to his seniority or any other rights or privi-
leges previously enjoyed, and to make Forbes whole for any
loss of earnings or other benefits suffered as a result such
unlawful discharge with interest as computed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987), less taxes
which should be withheld.
Provisions should also be made for the position of an ap-
propriate notice to employees.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended1
ORDER
The Respondent, E. G. Clemente Contracting Corp., Staten
Island, New York, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Discharging its employees because of their union ac-
tivities on behalf of Building, Concrete, Excavating and
Common Laborers’ Union, Local No. 731 of Greater New
York and Vicinity, Laborers’ International Union of North
America, AFL–CIO or for engaging in other concerted ac-
tivities protected by the Act.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer to Eric Forbes immediate and full reinstatement
to his former job or, if such job no longer exists, to some
substantially equivalent position, without predjuice to his se-
niority, or other rights or privileges previously enjoyed.
(b) Make Forbes whole for any loss of earnings and other
benefits suffered as a result of his unlawful discharge with
interest in the manner set forth in the remedy provision of
this decision.
(c) Expunge from its records any reference to the unlawful
discharge of Forbes and provide written notice to him that
608 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 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.’’
this has been done and that the discharge will not be used
against him in any way.
(d) 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.
(e) Post at its place of business in Staten Island, New
York, copies of the attached notice marked ‘‘Appendix.’’2
Copies of the notice, on forms provided by the Regional Di-
rector for Region 29, 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 including all places where notices
to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge employees because of their union
activities on behalf of Building, Concrete, Excavating &
Common Laborers’ Union, Local No. 731 of Greater New
York and Vicinity, Laborers’ International Union of North
America, AFL–CIO or any other labor organization or be-
cause they engage in protected, concerted activities.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer Eric Forbes immediate and rull reinstate-
ment to his former job or, if such job no longer exists, to
a substantially equivalent position without prejudice to his
seniority or any other rights or privileges previously enjoyed.
WE WILL make the above-named employee whole for any
loss of earnings and other benefits suffered as a result of his
unlawful discharge, with interest.
WE WILL notify the above-named employee in writing that
we have expunged from our records any reference to his un-
lawful discharge and that the discharge will not be used
against him in any way.
E. G. CLEMENTE CONTRACTING CORP.