Frank Mascali Construction

National Labor Relations Board - Board DecisionsAug 15, 1980

251 N.L.R.B. 219 (N.L.R.B. 1980)

FRANK MASCALI CONSTRUCTION Frank Mascali Construction G.C.P. Co.; Frank Mas- cali Construction Co., Inc. and John Kuebler Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Frank Mascali Construction G.C.P. Co.; Frank Mascali Construction Co., Inc.) and John Kuebler Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Willets Point Contracting Corp.) and Charles Curd Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Allied Used Truck Exchange, Inc.) and Charles Curd. Cases 29-CA-5975, 29-CB- 3075, 29-CB-3115, and 29-CB-3235 August 15, 1980 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND TRUESDALE On October 19, 1979, Administrative Law Judge George F. Mclnerny issued the attached Decision in this proceeding. Thereafter, Respondent Em- ployers and Respondent Union filed exceptions and supporting briefs, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision and a reply brief in opposition to the brief of Respondent Union.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ' The General Counsel also filed a motion to strike Respondent Union's Exh A and all references thereto in ils brief Subsequently. Re- spondent Union ftiled a motion to reopen the hearing to introduce an ad- ditional exhibit. and the General Counsel filed an opposition therelo The evidence which Respondent Unllion attached as Exh. A to its brief and seeks to have admitted into the record purportedly shows that its shop steward. Worhacz. testified truthfully at the hearing with respect to cer- tain referrals made on August 29. 1977 Based on this additional eidence Respondent Union argues that the Administrative Law Judge erred in discrediting Worhacz lo Cever, tile proffered ceidence was available at the time of the hearing and could he been offered then Additionall it is well established that the Board wili not reopenl a record to) admit evi- dence which merely ttacks credibilit Ai 4Ar Serc, Ilc., d' h/u Knau II/rlihplcrs, 235 NI. R II (1978) F-or these reason,l vwe herchr, deny Respondenl't ,tolioni In eic of this resolution, we find it 1ineces- sar t pais upon the (lenteral Couniel's otiion to strike 251 NLRB No. 32 ings, 2 and conclusions3 of the Administrative Law Judge, as modified herein. i. Respondent Employers except to the Adminis- trative Law Judge's finding that they violated Sec- tion 8(a)(1) and (3) of the Act by discharging John Kuebler on September 2, 1977, and Respondent Union excepts to the Administrative Law Judge's finding that it violated Section 8(b)(1)(A) and (2) of the Act by causing the discharge of Kuebler. We find merit in these exceptions. At all times relevant herein, Respondent Frank Mascali Construction Co., Inc. (FMC), was en- gaged in repaving portions of the Grand Central Parkway and the Long Island Expressway under a contract with the State of New York. This oper- ation was conducted through a separate corpora- tion, Respondent Frank Mascali Construction G.C.P. Co. (GCP). 4 GCP did not employ regular drivers of its own, and there is no evidence that it maintained a seniority list. Instead, it filled its needs by obtaining drivers on a daily basis first from FMC and then, pursuant to an arrangement with Respondent Union, from the Willets Point Con- tracting Corp. (Willets Point) s and Edenwald, an- Respondent Emploers and Respondenlt Union ha% e xcepted to cer- tain 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 resolulions are incor- rectl Sanda rd Dry Wall Products. Inc.. 91 NLRB 544 1950). enfd 188 F.2d 362 (d Cir 1951). We have carefully examined the record and filnd no basis lfor reversing his findings In discrediting Worhacz' testimony that he changed the August 29, 1977. starting time for three employees on August 26. the Administrative Law Judge stated that although Worhacz testified that he changed the time on the shape sheet in response to a phone call from Respondent Em- ployer,' job superintendent. 'aternostro, the shape sheet sho ed no sign of an erasure lHowever Worhacz testified that he had not yet prepared the shape sheet when Paternostro called. In view of the other reasons stated by the Administrative Law Judge for discrediting Worhacz. with which we agree, we find no basis for disturbing his credibilit) finding In describing the involvement of discriminatee Katsaros with the union dissident group (FORE) the Administrative Law Judge stated that earls in 1978 Katsaros appeared on a local television show airing the differ- ences between FORE aid the incumbentit officials of Respondent Union Respondent Employers contend that there is no record eidence orf this appearance They assert that the only television appearance insvolving Katsaros of which they are aware was a segment of the nationwide show 6(0 Minutes.," which was broadcast on December 4 1978, more than 2 months after the close of the hearing in this case They therefore contend that the Administrative Law Judge must have viewed this program and they suggest that as a result he became biased against Respondent Em- ployers and Respondent Union. There is no record evidence supporting the finding that Katsaros appeared on any television program However. after carefully considering the record and the Administrative I.aw Judge's Decision. we reject as unsupported Respondent Eniployers' alle- gations that the Admitistratise Law Judge was biased a In adopting the Administrative Law Judge's conclusion that Re- spondent Union violated Sec. 8(bXI)MA) and 2) of the Act b causing the discharges of John Kuebher and Charles Curd from 'l'dletl Point Conlractilg Crp, we find it nnecessary to pass on his relialnce on .Mir- undu I-,l (- o npun'.l Inc. 140( NI. Rt 181 (' 1'2) T'he parties stlpulalied that FM C and GCP constitute a single inte- graed;ll hbillCs ellterprise : During the reles ant period. Wl let, Point did not have sufficlent wiirk I0 priivide its drlers with full-tinme emplonlnient BH) arrangement ('Conirued 219 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other contractor. Under this arrangement, each afternoon Joe Paternostro, the GCP job superin- tendent, would determine his needs for the next working day, and then call Steve Costa, the gener- al superintendent at FMC, to obtain all the drivers FMC could furnish. If Costa could not supply enough drivers, Paternostro first would contact Robert Worhacz, the Union's steward at Willets Point, and, if necessary, Edenwald. If these sources were unable to fill GCP's needs for the next day, it was free under the arrangement with the Union to seek drivers from whatever source it desired. The Administrative Law Judge found, and we agree, that this arrangement constituted a collective-bar- gaining agreement between the Employers and the Union. Sometime in mid-August 1977, Robert Agnew, the night superintendent at GCP and a black, asked Frank Daves, a black owner-operator employed by GCP at night, if he knew a minority driver who would be available for fill-in work 2 or 3 days a week. Agnew also said that the GCP project would be continuing for an additional 5 or 6 months. Daves replied that he had a friend who needed work. Agnew, however, did not pursue the matter. 6 On September 1, Paternostro, after obtaining all the available drivers from FMC, still needed two drivers for the next day, the Friday before Labor Day. Pursuant to the arrangement with the Union, he contacted Worhacz, who told him he could promise to supply only one driver because of the impending holiday weekend. He then contacted Edenwald, which could not supply any drivers. Pa- ternostro was then free under the arrangement to look for a driver from any available source. Sometime that afternoon, while talking to Agnew, Paternostro mentioned that he was still seeking a driver for the next day. Agnew said he might be able to get one, and Paternostro told him to try to get a minority driver if possible. Agnew then called Daves. After learning that his friend was unavailable, Daves contacted the shop steward at Hendrickson Brothers, another contractor. The latter was unable to supply or refer Daves to a mi- nority driver, but gave Daves the phone numbers of Charles Curd and Kuebler, two Willets Point drivers who occasionally shaped and worked at Hendrickson. (Curd and Kuebler are white.) Daves was unable to reach Curd. Although there is con- flicting testimony as to whether Daves personally contacted Kuebler and had him call Agnew, or with the Union. Willets Point drivers for whom Willets Point did not have work were referred to other contractors. 6 This conversation occurred as a result of problems FMC and GCP had been experiencing in meeting affirmative action requirements cn- tained in the contract for the project only gave Kuebler's number to Agnew, as a result of Daves' efforts Agnew ultimately talked to Kuebler and told him to come to work. Agnew then told Paternostro that he had obtained a driver for him. Kuebler reported for work at GCP the next day and greeted Paternostro, whom he knew because Paternostro had previously been a superintendent at Willets Point. After filling out the required forms, Kuebler went to work driving one of the Employers' trucks. He did not ask, nor did Pater- nostro tell him, how long he would be working for the Employers. At the end of the day, Kuebler came to the office and asked what the schedule was for the next working day, Tuesday, September 6. Accord- ing to Paternostro, he told Kuebler that he had to deal with Costa with regard to the Employers' trucks, that on Tuesday FMC might have an abun- dance of drivers, and that he did not know who would be driving the truck Kuebler had driven that day on Tuesday. Kuebler then said, "I'll see you Tuesday" and Paternostro replied, "Okay, see me Tuesday." He stated, however, that he did not tell Kuebler to come to work or to the site on Tuesday. According to Kuebler, whom the Admin- istrative Law Judge credited, Paternostro said that he did not have the schedule, would have to check with Costa, and that if the starting time was before 8 o'clock he would call him but otherwise he would see him Tuesday. At some point that afternoon, Paternostro called Costa as usual to arrange for drivers for Tuesday. As was true the previous day, Costa was able to supply all but two of the needed drivers, so Pater- nostro called Worhacz. This time Worhacz said he was able to supply both drivers. Worhacz also mentioned that he had seen Kuebler working at GCP that day, to which Paternostro replied that Kuebler was the driver Agnew sent him. Accord- ing to Worhacz, he then told Paternostro that Kuebler would have ended up at GCP anyway if he had shaped at Willets Point, that he could supply enough drivers for Tuesday, and that Kuebler on Tuesday would shape at Willets Point in his regular position. On Tuesday morning, September 6, Kuebler ap- peared at the GCP office and discovered that Fitz- patrick, a Willets Point driver senior to him, was driving the truck which Kuebler had driven on Friday. He asked Paternostro why he had not been assigned to that truck. Paternostro explained the ar- rangement with the Union for obtaining drivers and said he could not put him to work ahead of drivers referred from Willets Point. When Kuebler protested, arguing that because he had been hired FRANK MASCALI CONSTRUCTION 221 on Friday he was now on GCP's seniority list, Pa- ternostro said there was nothing he could do. Sub- sequent efforts by Kuebler to obtain further em- ployment at GCP, including several visits with Charles Mascali, the treasurer and asphalt plant su- perintendent of FMC, were unsuccessful. In concluding that Respondent Employers vio- lated Section 8(a)(l) and (3) and that Respondent Union violated Section 8(b)(1)(A) and (2) in the discharge of Kuebler, the Administrative Law Judge found that Kuebler was hired by Paternostro and Agnew as a permanent employee for the dura- tion of the GCP project. He further found that Worhacz, as part of his discriminatory pattern of conduct against Kuebler, reminded Paternostro on September 2 of his obligation to obtain employees through Worhacz at Willets Point, and thereby caused him to terminate Kuebler. Contrary to the Administrative Law Judge, we find, for the reasons set forth below, that the General Counsel has failed to establish that Respondents have violated the Act as alleged. As previously noted, GCP employed no regular drivers of its own, but instead filled its needs on a daily basis from FMC and through its arrangement with the Union. Only when these two sources were insufficient to meet GCP's needs for a particular day did it hire drivers from other sources. It was precisely the latter situation which led to the hiring of Kuebler by GCP on September 2. The mere fact that Kuebler worked 1 day did not make him a permanent employee of GCP.7 And, since GCP had not previously employed regular drivers, it would have been a clear departure from its past practice to have hired Kuebler as a permanent em- ployee. Further, although GCP apparently was seeking a minority driver to fill in regularly when FMC and the Union were unable to fill its needs and to help meet certain affirmative action requirements, on September I its immediate need was for a driver for September 2 only, whether or not that driver was a member of a minority group.8 Additionally, there is no evidence that GCP or its job superin- tendents, Agnew and Paternostro, ever told Kuebler that he was being hired as a permanent employee. Agnew, whom the Administrative Law Judge credited, testified that he never told Daves how long the driver he was seeking would work, nor did he tell Kuebler how long he would work. I Sec. 32 of the contract between the Union and Respondent Employ- ers provides that an individual must work 30 days before gaining senior- ity rights. Furthermore, as noted above, there is no evidence that GCP maintained a seniority list. a The Administrative Law Judge recognized that on September I Pa- ternostro was "concerned about covering the work for the next day" and that Kuebler was hired because the Union was unable to promise him the driver he needed for the next day. Furthermore, although Kuebler himself testified that Daves told him there would be about "six months' work" on the job if he was hired, 9 he also testified that he did not think that he had a com- mitment by GCP to employ him for 6 months and that the reference to "six months' work" concerned the project, not the job he was being offered. Kuebler also admitted that he never asked Pater- nostro how long the job would last, and that nei- ther Agnew nor Paternostro, who did the actual hiring, told him this was a permanent job. Finally, we note that according to Kuebler's credited testimony, when he came into Paternos- tro's office after work on September 2, Paternostro told him that he would see him Tuesday unless there was a change in the starting time. The Ad- ministrative Law Judge concluded that this com- ment occurred after Paternostro had talked to Worhacz and the latter told him that Kuebler would be shaping at Willets Point on Tuesday. Pa- ternostro's statement can be interpreted to mean that at that point Paternostro still intended to use Kuebler on Tuesday, thereby supporting the con- clusion that Kuebler was hired as a permanent em- ployee. However, as the Administrative Law Judge recognized, Paternostro merely may have thought that Worhacz would explain the situation to Kuebler at the Willets Point shape on Tuesday morning, thereby enabling Paternostro to avoid a troublesome confrontation. In that context, Pater- nostro's statement is not inconsistent with a conclu- sion that Paternostro never had any intention of using Kuebler on Tuesday. Such a conclusion is supported by Paternostro's action on September 2 in scheduling his drivers for September 6. As noted above, after obtaining all the drivers available from FMC, he called Worhacz to obtain two more driv- ers. Assuming, arguendo, that Kuebler had been hired as a permanent employee, these two drivers would have been in addition to Kuebler. If Pater- nostro subsequently had decided not to continue I The Administrative Law Judge based his conclusion that Kuebler was hired as a permanent employee in part on his finding that Daves told Kuebler either that the job would last 4 or 5 months, or that the job would last until the end of the season. In light of Agnew's credited testi- mony that he never told Daves how long the driver he was seeking would work, it appears Daves in his September I conversation with Kuebler combined Agnew's earlier remarks in mid-August about seeking a minority driver to do fill-in work over the duration of the project with the immediate need for a driver for the next day, and as a result may have communicated to Kuebler that the job being offered was for more than I day. Nonetheless, even if he did indicate that a permanent job was being offered, there is no evidence that Daves had the authority to hire Kuebler; to the contrary, the record shows that the actual hiring was done by Paternostro and Agnew, who never indicated to Kuebler that the job was for more than I day. Therefore, any indication Daves may have made to Kuebler regarding the length of the job cannot be attribut- ed to Respondent Employers. Accordingly, we find Daves' statement to Kuebler does not support the conclusion that Respondent GCP hired Kuebler as a permanent employee 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kuebler's employment, he would then have had to obtain a driver to take his place, or operate one driver short. However, there is no evidence that Paternostro did either. Thus, it seems apparent at that the time Paternostro called Worhacz he had no plans to use Kuebler, and therefore that Kuebler had not been hired for a permanent job. In light of the above factors, particularly the am- biguity of Paternostro's statement to Kuebler after work on September 2, the fact that GCP employed no regular drivers of its own and hired drivers from sources other than FMC only to the extent necessary to fill its needs for a particular day, and the lack of any evidence that GCP ever told Kuebler that he was hired as a permanent employ- ee, we find the evidence insufficient to establish that Kuebler was hired as a permanent employee. Rather, we find that Kuebler was hired by GCP only for 1 day's work as a result of the failure of GCP's normal sources to furnish the drivers it needed for September 2. Accordingly, we find that Respondent Employers' failure to employ Kuebler after September 2 was unrelated to union consider- ations and therefore not discriminatory. We further find that because Respondent Employers hired Kuebler for 1 day only, and because Paternostro had no plans to use Kuebler when he talked to Worhacz on September 2, Respondent Union did not cause the Respondent Employers to discharge him. Therefore, we conclude that Respondent Em- ployers did not violate Section 8(a)(l) and (3) by discharging Kuebler and that Respondent Union did not violate Section 8(b)(l)(A) and (2) by caus- ing Respondent Employers to discharge Kuebler. ' 2. The Administrative Law Judge found, and we agree, that from July 25, 1977, to October 21, 1977, Respondent Union violated Section 8(b)(1)(A) and (2) of the Act by operating its referral arrangement with Respondent Employers in a discriminatory manner. The Administrative Law Judge further found that Respondent Employers violated Section 8(a)(1) and (3) of the Act by accepting and con- doning the arrangement. In so doing, the Adminis- trative Law Judge limited the Employers' liability to the period beginning September 2, 1977, based on his finding that prior to that date the Employers had no actual knowledge of the Union's discrimina- tory practices and no reason to make inquiries about a possible discriminatory manipulation of the referral system. Although we agree with these fac- 1' Accordingly, we reject the Administrative Law Judge's findings that Worhacz' statements to Paternostro on September 2 caused Pater- nostro to discharge Kuebler, and that sometime after their conversation Paternostro decided to terminate Kuebler. "' The General Counsel did not allege, nor did the Administrative Law Judge find, that Respondent Union violated Sec. 8(bXIXA) and (2) by attempting to cause Kuebler's discharge. In any event, we conclude that the record is insufficient to establish such a violation. tual findings, we disagree with the Administrative Law Judge's conclusion that they operate to limit the Employers' liability. Thus, the Board has con- sistently held that when an employer delegates hiring to a union by utilizing a union referral- system to obtain its employees, it is responsible if the union operates the system in a discriminatory manner. This is so even if the employer has no actual knowledge of the Union's discrimination. See, e.g., General Cinema Corporation and its wholly owned subsidiary, Gentilly Woods Cinema, Inc., 214 NLRB 1074, 1076 (1974); Motor City Electric Com- pany, 204 NLRB 460, 463 (1973); Morrison-Knudsen Company, Inc., Walsh Construction Company, and Perini-Quebec, Inc., d/b/a Robinson Bay Lock Con- structors, A Joint Venture, 123 NLRB 12, 24 (1959), enfd. 275 F.2d 74 (2d Cir. 1960), cert. denied 366 U.S. 909 (1961). In the present case, the Adminis- trative Law Judge found, and we agree, that the Employers and the Union entered into a collective- bargaining agreement whereby the Employers dele- gated to the Union the authority to hire drivers for them when FMC was unable to fill GCP's needs, and that the Union, through its agent, Worhacz, regularly supplied GCP with drivers but discrimin- atorily did not refer Curd or Kuebler. According- ly, we find that Respondent Employers are jointly and severally liable with Respondent Union for the discriminatory operation of the referral arrange- ment with the Union from July 25, 1977, to Octo- ber 21, 1977. However, we find that, even if Respondent Em- ployers had investigated the Union's operation of the referral system, they would not have discov- ered the discriminatory practices because the Union falsified the shape records. Therefore, we conclude, contrary to the Administrative Law Judge, that Respondent Union should be held pri- marily, and Respondent Employers secondarily, liable for any backpay due Kuebler and Curd be- cause of discriminatory referrals to Respondent Employers from July 25, 1977, to October 21, 1977. See Union Boiler Company, 245 NLRB No. 93 (1979); Wismer and Becker, Contracting Engi- neers, 228 NLRB 779 (1977). Finally, the Administrative Law Judge found Respondent Employers and Respondent Union jointly and severally liable for backpay shown to be due any employee because of discriminatory re- ferrals to Respondent Employers. However, there is no evidence in the record showing a general pat- tern of discrimination by the Union in the oper- ation of the referral system or that any employee other than Kuebler and Curd was the victim of the Union's discriminatory referrals. Accordingly, we FRANK MASCALI CONSTRUCTION shall limit backpay liability for the Union's discrim- inatory referrals to these two discriminatees. AMENDED CONCI.USIONS OF LAW Substitute the following for the Administrative Law Judge's Conclusions of Law 9, 10, and 11, and renumber the subsequent Conclusions of Law accordingly: "9. Respondents Frank Mascali Construction G.C.P. Co. and Frank Mascali Construction Co., Inc., violated Section 8(a)(1) and (3) of the Act by accepting and condoning an arrangement with Re- spondent Union for referral of employees on and after July 25, 1977, because that agreement unlaw- fully discriminated against such employees." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that: A. Respondents Frank Mascali Construction G.C.P. Co., and Frank Mascali Construction Co., Inc., Flushing, New York, their officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Accepting and condoning an arrangement with the Respondent Union for referral of employ- ees that unlawfully discriminates against such em- ployees because they exercise their Section 7 rights. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) In conjunction with Respondent Union, with Respondent Union primarily liable, make whole John Kuebler and Charles Curd for any loss of pay and other benefits they may have suffered by reason of the discriminatory implementation of their arrangement with Respondent Union from July 25, 1977, to October 21, 1977, with backpay and interest thereon to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977). (See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962)).12 Further, in conjunction with Respondent Union, with Re- spondent Union primarily liable, make whole the above-named employees by making contributions 12 Member Jenkins would compute the interest due on backpay in ac- cordance with his partial dissent in Olympic Medical Corporation. 250 NLRB No. 11 (1980). on their behalf to the Union's health and welfare and pension funds. ' (b) Preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, 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. (c) Post at their place of business in Flushing, New York, copies of the attached notice marked "Appendix."' 4 Copies of said notice, on forms pro- vided by the Regional Director for Region 29, after being duly signed by Respondents' representa- tives, shall be posted by them immediately upon re- ceipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (d) Forward signed copies of said notice to the Regional Director for posting by Local 282, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, it being willing, at all locations where notices to members are customarily posted. (e) Notify the Regional Director for Region 29, in writing, within 20 days from the date of this Order, what steps Respondents have taken to comply herewith. B. Respondent Local 282, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Elmont, New York, its offi- cers, agents, and representatives, shall: 1. Cease and desist from: (a) Threatening, restraining, or coercing its mem- bers because they exercise their Section 7 rights. (b) Maintaining its seniority list at Willets Point Contracting Corp. in such a manner as to unlawful- ly discriminate and retaliate against its members. (c) Maintaining attendance records at Willets Point Contracting Corp. on a false and fraudulent basis. ] Because the provisions of employee benefit fund agreements are variable and complex, the Board does not provide at the adjudicator! stage of a proceeding for the addition of interest at a fixed rate on pa!- ments which are required to be made to such funds as a result of a make- whole remedy We therefore leave to the compliance stage the question whether Respondent Employers and/or Respondent Union must pay an additional amounts into the health and welfare and pension funds in order to satisfy our make-whole remedy See M.errvweather Optical Company, 240 NLRB 1213 (1979) I4 In the event that this Order is enforced by a Judgment of a United States Court of Appeals. the words in the notice reading "Posted hs Order of the National Labor Relations Board" shall read "Posted Pursul- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 22 1 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Causing or attempting to cause the discharge of employees by Willets Point Contracting Corp. in retaliation for exercising their Section 7 rights. (e) Refusing to process grievances filed by its members because they filed charges with the Na- tional Labor Relations Board. (f) Failing and refusing to refer members to work assignments in retaliation for exercising their Sec- tion 7 rights. (g) Implementing its referral system arrangement with Frank Mascali Construction G.C.P. Co. and Frank Mascali Construction Co., Inc., in a discrimi- natory manner. (h) Bringing false and fraudulent intraunion charges against its members and expelling or sus- pending them from union membership based there- on. (i) In any other manner restraining or coercing any employee members in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Correct the seniority lists and attendance rec- ords at Willets Point Contracting Corp. in accord- ance with this Decision. (b) Request Willets Point Contracting Corp. to immediately and fully reinstate John Kuebler and Charles Curd to their former jobs or, if those jobs no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or any other rights or privileges previously enjoyed. (c) Make whole John Kuebler and Charles Curd for any loss of pay and other benefits they may have suffered by reason of Respondent Union's dis- criminatory action in causing their discharge from Willets Point Contracting Corp. and its discrimina- tory failure and refusal to refer them to work as- signments. In the event that that employer reinstate the above-named employees as requested, pay them backpay for all days they would have worked be- tween October 21, 1977, and the date of their rein- statement. In the event that that employer will not reinstate them, continue to pay them backpay until such time as they have found substantially equiva- lent employment. Backpay with interest thereon shall be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977). (See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962)).' 5 Further, make whole the above-named employees by making contributions on their behalf to the Union's health and welfare and pension funds.' 6 ' See fn. 12, upra. See fn 13, upra (d) In conjunction with Respondent Employers, with Respondent Union primarily liable, make whole John Kuebler and Charles Curd for any loss of pay and other benefits they may have suffered by reason of Respondent Union's discriminatory implementation of its referral system arrangement with Respondent Employers from July 25, 1977, to October 21, 1977. Backpay shall be computed in the manner set forth above. Further, in conjunction with Respondent Employers, with Respondent Union primarily liable, make whole the above- named employees by making contributions on their behalf to the Union's health and welfare and pen- sion funds. 7 (e) Make whole John Kuebler, Charles Curd, Ted Katsaros, and Lawrence Kudla for any loss of pay and other benefits they may have suffered due to the false and fraudulent intraunion charges brought against them and by expelling or suspend- ing them from membership in the Union. Backpay with interest shall be computed in the manner set forth above. Further, make whole the above-named employees by making contributions on their behalf to the Union's health and welfare and pension funds. 8 (f) Preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, all seniority lists, attendance records, or rec- ords showing starting times, job assignments and hours worked, and all other records necessary for the determination of the amount of backpay due under the terms of this Order. (g) Post at its business offices, union halls, meet- ing halls, all barns of employers with whom it has collective-bargaining agreements, and any other places where it customarily posts notices to mem- bers, copies of the attached notice marked "Appen- dix B."19 Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by an authorized representative of Respondent Union, shall be posted by Respond- ent Union immediately upon receipt thereof in the manner provided above. Notices are to be posted for 60 consecutive days, in conspicuous places, in- cluding all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent Union to insure that the notices are not altered, defaced, or covered by any other mate- rial. (h) Forward signed copies of said notice to the Regional Director for posting by Frank Mascali Construction G.C.P. Co. and Frank Mascali Con- struction Co., Inc., they being willing, at all loca- 7 See fn. 13, supra. " Ibid. Iu See, fn. 14. upra. FRANK MASCALI CONSTRUCTION tions where notices to employees are customarily posted. (i) Notify the Regional Director for Region 29, in writing, within 20 days from the date of this Order, what steps Respondents have taken to comply herewith. APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT accept and condone an ar- rangement with Local 282, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, for referral of employees that unlawfully discriminates against such employees because they exercise their Section 7 rights. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of any rights guaranteed them by the National Labor Relations Act. WE WILL, in conjunction with the Union, with the Union primarily liable, make whole John Kuebler and Charles Curd for any loss of wages or other benefits they may have suf- fered because of the discriminatory implemen- tation of our arrangement with the Union, with interest. FRANK MASCAII CONSTRUCTION G.C.P. Co.; FRANK MASCALI CON- STRUCTION Co., INC. APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten, coerce, or restrain union members because they exercise their Section 7 rights. WE WILL NOT maintain seniority lists or at- tendance records in a false or fraudulent manner, or in such a manner as to discriminate unlawfully and retaliate against union mem- bers. WE WILl NOT cause or attempt to cause the discharge of employee members by Willets Point Contracting Corp. in retaliation for exer- cising their Section 7 rights. WE WILI. NOT refuse to process grievances filed by union members because they filed charges with the National Labor Relations Board. WE WILL NOT implement our arrangement with Frank Mascali Construction Co., Inc., and Frank Mascali Construction G.C.P. Co. in a discriminatory manner. WE wIl.l. NO fail and refuse to refer union members to work assignments in retaliation for exercising their Section 7 rights. WE Wll.l. NOT bring false or fraudulent in- traunion charges against our members and expel or suspend them from union membership based thereon. WE WIl.L. NOT in any other manner restrain or coerce our members in the exercise of any rights guaranteed them by the National Labor Relations Act. WE WILL correct the seniority lists and at- tendance records at Willets Point Contracting Corp. WE WI.L request Willets Point Contracting Corp. to reinstate John Kuebler and Charles Curd. WE WILL make whole John Kuebler and Charles Curd for any loss of pay and other benefits they may have suffered by reason of our discriminatory actions in causing their dis- charge from Willets Point Contracting Corp. and by reason of our discriminatory failure and refusal to refer them to work assignments, with interest. WE WI., in conjunction with Frank Mas- cali Construction G.C.P. Co. and Frank Mas- cali Construction Co., Inc., with ourselves pri- marily liable, make whole John Kuebler and Charles Curd for any loss of pay and other benefits they may have suffered because of our discriminatory implementation of our arrange- ment with these employers, with interest. WE WILl. make whole John Kuebler, Charles Curd, Ted katsaros, and Lawrence Kudla for any loss of pay and other benefits they may have suffered because of the false and fraudulent intraunion charges brought against them and their expulsion or suspension from membership based thereon. LOCAl. 282, INTERNATIONAI BROThI- ERHOOI) OF TEAMSTERS, CIIALI- FlIURS, WARIHIOUSIEM N \NI) HI P- IERS 01 ANI.RICA 2 2 226 I)ECISIONS OF NATIO()NAl I.ABOR RELATIONS BO()AR) DECISION S A IT MI(N'I OF 1111 CASI GLOR.Il! F. MCINERNY, Administrative Law Judge: The charge in Case 29-CA 5975 was filed on October 14, 1977, against Frank Mascali Construction G.C.P. Co.,.' herein referred to as Mascali GCP, by John Kuebler, an individual. The charge in Case 29-CB-3075 was also filed on Oc- tober 14, 1977, by Kuebler against Local 282, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehou- semen and Helpers of America, herein referred to as Local 282, or the Union. The charge in Case 29-CB 3115 was filed on Novem- ber 11, 1977, against the Union by Charles Curd, an indi- vidual. On December 30. 1977, the Regional Director for Region 29 of the National Labor Relations Board, herein referred to as the Board, issued an order consolidating these cases, together with a complaint alleging that Mas- cali GCP had refused to employ the Charging Parties, and later discharged Charging Party Kuebler because the Charging Parties had been engaged in concerted activi- ties protected by the National Labor Relations Act, as amended, herein referred to as the Act; and, further, that the Union had unlawfully refused to refer the Charging Parties to employment by Mascali GCP, because of their participation in protected concerted activity, and refused to process grievances presented by the Charging Parties because of those protected concerted activities, and be- cause they had filed charges against the Union with the Board. The Union and Mascali GCP filed answers deny- ing the commission of any unfair labor practices. Pursuant to notice contained in the Regional Direc- tor's order consolidating cases and complaint a hearing was held at Brooklyn, New York, beginning on March 22, 1978. On that day counsel for the General Counsel moved to amend the complaint to allege that an agent of the Union engaged in unlawful threats to the Charging Parties. The amendment was allowed. The charge in Case 29-CB 3235 was filed by Charles Curd on March 7, 1978, alleging that the Union suspend- ed him from membership and expelled members John Kuebler, Ted Katsaros, and Lawrence Kudla because they filed charges and gave testimony under the Act. On April 19, 1978, the Regional Director for Region 29 issued a complaint alleging that the Union had suspended or expelled these members because they filed charges and gave testimony under the Act, and because they had engaged in protected concerted activities, all in violation of the Act. The Union filed an answer denying the com- mission of these alleged unfair labor practices. Thereafter, on June 19, 1978, during the hearing, coun- sel for the General Counsel moved to consolidate Case 29 CB-3235 with the cases then being heard. This motion was allowed, and the hearing continued at var- ious dates until concluded on September 25, 1978. z ' 1 c I,, m li l iiii .wittctided .11 Ile hearitg to s d ld ilh M.I.yi I rl .)tititil l (t ;:i illlC .t i Re lllc t ICl t I C .t i il I I illnl ll;lela Il illl I' I th Ir. 'l prt tl yII lit' 2: 1 )7,i .I , ht) lth ;i,,l t eIlttctid tlo tI tc III tILi~lht'T tit 0 th pgt' t'I 12 and August 31, 1977. by threatening union ntembersh because they had engaged in protected concerted actixi- ty for their mutual aid and protection, and because they had joined an organization called FORE in furtherance of such mutual aid and protection. 4. The Respondent Union, by its shop steward, Robert Worhacz, violated Section 8(b)(1)(A) and (2) of the Act by failing and refusing to refer John Kuebler and Charles Curd to work assignments between July 25 and October 21, 1977, in retaliation for their exercise of the rights guaranteed under Section 7 of the Act. 5. The Respondent Union, by its shop steward, Robert Worhacz, violated Section 8(b)(l)(A) and (2) of the Act on August 29, 1977, by falsifying shape records and by failing to refer Charles Curd to employment because he had exercised his rights under Section 7 of the Act. 6. The Respondent Union, by its shop steward, Robert Worhacz, violated Section 8(b)(1)(A) and (2) by falsify- ing shape records, thereby causing the discharge of John Kuebler and Charles Curd by their employer, Willets Point Contracting Corp., on October 21, 1977, in retali- ation for their exercising their Section 7 rights. 7. The Respondent Union, by its secretary-treasurer Robert Sasso, violated Section 8(b)(1)(A) by refusing to process grievances filed by John Kuebler and Charles Curd because they had filed charges with the National Labor Relations Board. 8. The Respondent Union, by its shop steward, Robert Worhacz, violated Section 8(b)(1)(A) and (2) of the Act by failing and refusing to refer John Kuebler and Charles Curd to Frank Mascali Construction G.C.P., Co. and Frank Mascali Construction Co., Inc., under an arrange- ment to refer employees to these employers, because Kuebler and Curd had exercised their rights under Sec- tion 7 of the Act. 9. The Respondent Union, by its shop steward, Robert Worhacz, violated Section 8(b)(1)(A) and (2) of the Act by causing Frank Mascali Construction G.C.P. Co. and Frank Mascali Construction Co.. Inc., to discharge their 2 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employee, John Kuebler, in retaliation for his exercise of his rights under Section 7 of the Act. 10. Respondents Frank Mascali Construction G.C.P. Co. and Frank Mascali Construction Co., Inc., violated Section 8(a)(l) and (3) of the Act by accepting and con- doning an arrangement with the Respondent Union for referral of employees on and after September 2, 1977, be- cause that agreement unlawfully discriminated against such employees. 11. Respondents Frank Mascali Construction G.C.P. Co. and Frank Mascali Construction Co., Inc., violated Section 8(a)(l) and (3) of the Act by discharging their employee John Kuebler on September 2, 1977, under an arrangement with the Respondent Union which discrimi- nated against Kuebler because of his exercise of his rights under Section 7 of the Act. 12. The Respondent Union, by its shop steward, Robert Worhacz, and its executive board, violated Sec- tion 8(b)(l)(A) and (2) by the filing of false intraunion charges against John Kuebler, Charles Curd, Ted Kat- saros, and Lawrence Kudla, and by, on February 8, 1978, expelling Kuebler, Katsaros and Kudla from mem- bership, and suspending Charles Curd from membership in the Respondent Union in retaliation for the exercise of the rights guaranteed under Section 7 of the Act. 13. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that Local 282, the Respondent Union, has engaged in certain unfair labor practices, I will rec- ommend that it cease and desist therefrom and take cer- tain action designed to effectuate the policies of the Act. I have found that the Respondent Union threatened and coerced union members Kuebler and Curd because of their exercise of their Section 7 rights. I shall recom- mend that it cease and desist from such conduct. I have found that Respondent Union failed and refused to refer Kuebler and Curd to assignments to which they were entitled because of their seniority at Willets Point because of their exercise of their Section 7 rights. I shall recommend that it cease and desist from such conduct. I shall further recommend that the Respondent Union compensate Kuebler and Curd for all days between July 25 and October 21, 1977, on which their seniority would have entitled them to be assigned to work together with all payments to health and welfare and pension funds necessary to their continuing eligibility to receive bene- fits from these funds, whether or not they shaped or shaped late on those days, with interest on any moneys due to be computed in the manner pescribed in Florida Steel Corporation, 231 NLRB 651 (1977). I have found that Respondent Union caused the dis- charge of Kuebler and Curd by their employer, Willets Point Contracting Corp., on October 21, 1977, through the maintenance of false and fraudulent attendance rec- ords. I shall recommend that Respondent Union cease and desist from compiling and maintaining records on that basis and take the following affirmative action: First, correct those attendance records for the period from June 6, 1977, to October 21, 1977, to reflect the facts found by me in this case. Second, request the employer, Willets Point Contract- ing Corp., to reinstate Kuebler and Curd to the places they held on the seniority list without prejudice to any rights or benefits they may have. Third, if the employer will reinstate Kuebler and Curd as requested, then pay them backpay for all days they would have worked between October 21, 1977, and the date of their restatement computed on a quarterly basis with interest thereon to be computed in the manner pre- scribed in W Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, supra. 9Y Fourth, if the employer will not reinstate Kuebler and Curd as requested, then continue to pay them backpay computed in the same manner until such time as they have found substantially equivalent positions elsewhere. I have found that Respondent Union, through the im- plementation of its arrangement with Frank Mascali Construction G.C.P. Co. and Frank Mascali Construc- tion Co., Inc., caused the discharge of John Kuebler be- cause of his exercise of his Section 7 rights. I shall rec- ommend that the Union cease and desist from imple- menting its agreement in a discriminatory manner and that it notify Mascali that it no longer has any objection to Kuebler's employment by Mascali. I have found that Respondents Frank Mascali Con- struction G.C.P. Co. and Frank Mascali Construction Co., Inc., discharged John Kuebler as a result of its im- plementation of their arrangement with the Respondent Union and because of the Union's discriminatory en- forcement of that arrangement. I shall recommend that Mascali cease and desist from such conduct, and that Kuebler be offered reinstatement. I shall further recom- mend that Respondent Union and Mascali are jointly and severally liable for all backpay to Kuebler because of their discrimination against him, computed in the manner outlined above.9 6 I have found that the Respondent Employers con- doned and gave effect to the discriminatory hiring prac- tices implemented by the Union under its arrangement with Mascali. I shall not order the arrangement to be dis- continued since I believe that its discriminatory features will be adequately remedied by my recommended order to the Respondent Union. I will recommend, however, that the Respondent Employers together with the Re- spondent Union shall be jointly and severally liable for any backpay shown to be due to any employee because of discriminatory referrals to the Respondent Employers from on and after September 2, 1977, to the date of com- pliance with this order or to the date the arrangement terminates, whichever comes sooner. I have found that Respondent Union unlawfully brought charges against its members and expelled or sus- pended them from membership. I shall recommend that L'~ See, generally, Ihis Plumbing & Heaing Co., 138 NLRB 716 (1962). a Provlided that Kuebler should not receive any backpay fr any I day in an amount larger than a single day's pay Een though he may have suffered a double dose of discrimination, he is not entitled to double hackpay. FRANK MASCALI CONSTRUCTION .5 it cease and desist from this conduct, and I shall further recommend that it compensate these members for any lost wages they may have suffered as a result of this un- lawful action in accordance with the formula outlined above. In view of the serious nature of these charges. I shall recommend an order broadly prohibiting similar conduct by Respondent Union. [Recommended Order omitted from publication.]