Falcone Electric Corp.

National Labor Relations Board - Board Decisions

Sep 28, 1992

308 N.L.R.B. 1042 (N.L.R.B. 1992)

1042
308 NLRB No. 146
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On March 17, 1992, Administrative Law Judge Raymond P.
Green issued the attached decision. The General Counsel filed ex-
ceptions and a supporting brief. The Respondent filed cross-excep-
tions and an answering brief to the General Counsel’s exceptions.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 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.
3 We agree with the judge, for the reasons stated by him, that
Shawnee Industries, 140 NLRB 1451 (1963), enf. denied in part 333
F.2d 221 (10th Cir. 1964), is not applicable to this case. We reject
the General Counsel’s contention that Shawnee Industries stands for
the proposition that an employer can violate Sec. 8(a)(3) by refusing
to hire applicants because of their union affiliation even though the
employer has no jobs available. That proposition, were it applied to
the facts of this case, would not survive the analysis set forth in
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982). Thus, under that analysis,
we would find that the General Counsel has established a prima
facie case that, inter alia, the three applicants were refused employ-
ment after the Respondent had knowledge of their union affiliation,
but that the Respondent carried its burden of showing that, because
no jobs were available when they applied, the Respondent would not
have hired them even in the absence of their union membership.
4 The judge inadvertently directed his recommended Order against
Trinity Construction, Inc. We correct this error and properly direct
our Order against the Respondent, Falcone Electric Corp.
Falcone Electric Corp. and Local Union No. 3,
International Brotherhood of Electrical Work-
ers, AFL–CIO, CLC. Cases 29–CA–15559 and
29–CA–15742
September 28, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The Board must decide whether the Respondent vio-
lated Section 8(a)(3) and (1) of the Act by denying ap-
plicants employment because of their union affiliation
and whether the Respondent violated Section 8(a)(1)
by coercively interrogating and threatening applicants.1
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions3 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, Falcone Electric Corp.,
Brooklyn, New York, its officers, agents, successors,
and assigns, shall take the action set forth in the
Order.4
Emily Desa, Esq. and Joel H. Friedman, Esq., for the Gen-
eral Counsel.
Steven B. Horowitz, Esq. (Horowitz & Pollack, P.C.), for the
Respondent.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. These
consolidated cases were tried before me in Brooklyn, New
York, on January 14, 1991. The charge in Case 29–CA–
15559 was filed on March 4, 1991, and the charge in Case
29–CA–15742 was filed on May 20, 1991. The allegations
of the consolidated complaint are:
1. That on February 25, 1991, the Respondent by Paul
DeBenedetto, one of the Respondent’s principal owners, in-
terrogated an applicant for employment regarding his union
membership.
2. That on February 25, 1991, the Respondent by Paul
DeBenedetto refused to hire Michael Takvor, James
Quadrino, and Joseph Pascarella because they were members
of Local 3 and not members of Local 363 International
Brotherhood of Carpenters and Joiners of America.
FINDINGS OF FACT
I. JURISDICTION
The Respondent admits and I find that it is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act and that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The employer, a small contractor engaged in providing
electric services in the building and construction industry,
has a collective-bargaining agreement with Local 363 Inter-
national Brotherhood of Carpenters and Joiners of America.
The contract that was in effect at the time of these events
contained a union-security clause requiring membership in
Local 363 after 30 days of employment. The contract did not
contain any provision requiring the employer to utilize Local
363 to refer employees to it although there had been such
a provision (since deleted), in a previous agreement.
For some years the Charging Party, Local 3, has been en-
gaged in a campaign to organize employees of various elec-
trical contractors who have collective-bargaining agreements
with Local 363. In 1991, Local 3 as part of its campaign,
created something called the ‘‘Salting Program.’’ The aim of
this program, which was run by its business representative
Vincent McElroen, was to send out unemployed Local 3
members to shops having contracts with Local 363 and at-
tempt to get them hired. In this effort, Local 3 members were
instructed as to which Local 363 shops to seek employment
and were told to inform whomever interviewed them that
they were members of Local 3. They were also instructed to
immediately report back to Local 3 if they were not hired
and to make a verbal report to McElroen or his secretary.
Such reports were then reduced to writing either by
McElroen or his secretary.
It seems obvious to me that the goal of this program was
twofold. (1) To get Local 3 members employed in Local 363
1043FALCONE ELECTRIC CORP.
shops if possible and (2) to gather evidence to make out un-
fair labor practice charges against any employer who indi-
cated by word or deed its refusal to hire Local 3 members
because of their affiliation with that Union. In my opinion
this was an imaginative tactic and was a legitimate means by
which Local 3 waged its campaign against Local 363. The
issue before me is whether the evidence obtained by these
means was, in this case, reliable and whether it establishes
the violation alleged by the General Counsel.
The General Counsel presented three witnesses, Michael
Takvor, James Quadrino, and Joseph Pascarella, each of
whom was sent separately by Local 3 to the Respondent on
the same day (Feb. 25, 1991), with instructions to ask for
employment. At this time, each was unemployed, having
been laid off from a Local 3 employer, and was available for
work.
Joseph Pascarella testified that when he arrived at the
shop, he spoke to Paul DeBenedetto, asked for employment,
and volunteered that he was a member of Local 3. He states
that DeBenedetto said that Falcone Electric was a Local 363
shop and that if Pascarella became a member of Local 363
he could be given a job. According to Pascarella, he said that
he already was a member of Local 3, whereupon
DeBenedetto said that he could not help him. Pascarella
states that he wrote down and left his name, address, and
phone number before leaving the office. He states that subse-
quently in June 1991 he called DeBenedetto by phone, asked
if his name was still on file, and was told by DeBenedetto
that he had no record of him. According to Pascarella, he
asked if DeBenedetto held it against him that he was a mem-
ber of Local 3 and DeBenedetto said ‘‘no.’’
In connection with Pascarella’s testimony, I received into
evidence a statement referring to his interview at the Re-
spondent that was in Local 3’s files and was produced pursu-
ant to a subpoena served on it by the Respondent. In view
of the testimony that Local 3’s members were instructed to
report the results of their job interviews and since this docu-
ment, even though not written by, signed by, nor reviewed
by Pascarella, was contained in Local 3’s files, I received it
into evidence pursuant to Rule 803(6) as a record kept in the
ordinary course of business. This ‘‘statement’’ which is dated
February 25, 1991, and was probably written out by
McElroen’s secretary states:
Only 3 guys working—not hiring—if he was hiring
he had to clear it with 363—he only hires 363 men—
where are you from Local 3, yes—he only hire 363
men—if you want go to 363. Left name & telephone—
James Quadrino testified that he too went to Falcone Elec-
tric on February 25 and spoke to Paul DeBenedetto. He
states that he said that he was a member of Local 3 where-
upon DeBenedetto said that this was a Local 363 shop; that
Quadrino had to go down to Local 363; and that Local 363
had to hire him before he could be hired by the Respondent.
Quadrino states that he then suggested without success, that
if he was hired now he could become a member of Local
363 later.
Michael Takvor testified that after he asked for a job,
DeBenedetto asked him to describe his work experience.
Takvor related that he had about 9 years’ experience where-
upon he was asked if he was a member of Local 3 to which
he said ‘‘yes.’’ According to Takvor, DeBenedetto said that
he got his men from Local 363 and only hired off the street
if Local 363 couldn’t refer anyone. Takvor testified that
DeBenedetto told him that he was not hiring at that time but
asked him (Takvor), to write down his name, address, and
telephone number.
Paul DeBenedetto testified that he recalled that only two
persons came to his shop on February 25 just before he was
closing. He states that both asked for jobs and that he told
them that he was not hiring. He denies that he spoke about
any unions, that he asked them about their union affiliations,
or that he told them that he only hired men referred from
Local 363.
The Respondent produced its payroll records which
showed that no one was hired at or around February 25,
1991. At that time the Respondent employed three employees
other than DeBenedetto and Falcone (the two partners), and
had on February 4, 1991, laid off one worker because work
was slow. The next person hired by the Company was Angel
Santana, who was hired as an apprentice on April 29, 1991.
On May 29, 1991, another of its employees was fired. On
June 3, 1991, a second apprentice was hired and on July 18,
1991, a journeyman mechanic and an apprentice were laid
off for lack of work. In short, the evidence shows that at the
time the three individuals sought employment the Respond-
ent was not looking to hire anyone.
As it is clear to me that the three individuals were refused
employment because there was no work available for them
and not because they were members of Local 3, I shall rec-
ommend that the 8(a)(3) allegations be dismissed.
I do not think that the General Counsel’s reliance on
Shawnee Industries, 140 NLRB 1451 (1963), enf. denied 333
F.2d 221 (10th Cir. 1964), is applicable. The employer there
was hiring people to man a new facility and rejected five
persons because of their union membership. Two of the re-
jected persons were qualified for jobs for which there were
no openings. In finding an unlawful refusal to hire, the Board
concluded that a reason for their rejection was due to their
union membership and not simply because no suitable jobs
were available to them. The Board found a violation of Sec-
tion 8(a)(3) but ordered that the Respondent offer jobs to the
two applicants when jobs to which they were qualified were
available at a subsequent time. Unlike the present case where
Falcone Electric was not considering anyone for employ-
ment, the employer in Shawnee was actively interviewing job
applicants, hired some people and refused to hire others
based in part, on discriminatory grounds. Here the evidence
convinces me that notwithstanding the applicant’s union af-
filiation, the Respondent would not have hired them in any
event, because it was not considering anyone for employment
at the time in question. Thus, unlike Shawnee, I conclude
that there is insufficient showing of discriminatory intent in
the present case.
I shall also recommend that the interrogation allegation be
dismissed as I do not think that it amounts to a coercive ac-
tion in the circumstances of this case. As Local 3 is the dom-
inant labor union in the New York City electrical industry,
it seems to me that it would be normal and not coercive for
an employer seeking to discover an applicant’s work experi-
ence to inquire if he had worked for Local 3 shops and was
a member of that union. Moreover, the evidence presented by
the General Counsel shows that two of the three employees,
1044 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 I note, however, that in Kaiser Gypsum Co., 118 NLRB 1576,
1580 (1957), the Board stated:
We have held that the policy of hiring through a union is not
necessarily violative of the Act. The mere fact that the employer
utilizes the employment facilities of the union on a non-exclu-
sive basis because these facilities best suit his need for obtaining
experienced personnel, does not prove that the parties were op-
erating on a closed-shop basis or were engaging in prohibited
conduct.
2 If no exceptions are filed as provided by Sec. l02.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. l02.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
3 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.’’
by their own assertion, volunteered that they were members
of Local 3 as they were instructed to do under the Salting
Program.
On the record as a whole I do tend to credit the General
Counsel’s witnesses to the extent that they testified that they
were told by DeBenedetto, in substance, that he had a con-
tract with Local 363 and that he hired persons referred by
that Union. In this respect, these witnesses may have reason-
ably construed DeBenedetto’s remarks as implying that he
could not hire people who were members of Local 3. Ac-
cordingly, to this limited extent, I think that the Employer,
violated Section 8(a)(1) of the Act.1
CONCLUSIONS OF LAW
1. By impliedly notifying job applicants that they could
not be hired if they were members of Local 3, the Respond-
ent has engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and Section 2(6) and
(7) of the Act.
2. The Respondent has not violated the Act in any other
manner encompassed by the consolidated complaint.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, Trinity Construction, Inc., Brooklyn,
New York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening not to hire job applicants because they are
members of Local 3, International Brotherhood of Electrical
Workers, AFL–CIO, CLC.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its facility in Brooklyn, New York, copies of
the attached notice marked ‘‘Appendix.’’3 Copies of the no-
tice, on forms provided by the Regional Director for Region
29 after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees 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.
(b) 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
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.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT notify applicants for employment that we
will not hire them because they are members of Local 3,
International Brotherhood of Electrical Workers, AFL–CIO,
CLC.
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.
FALCONE ELECTRIC CORP.