Laborers Local 190 (ACMAT Corp.)

National Labor Relations Board - Board Decisions

Jan 21, 1992

306 N.L.R.B. 93 (N.L.R.B. 1992)

93
306 NLRB No. 25
LABORERS LOCAL 190 (ACMAT CORP.)
1 The General Counsel moved to strike the Respondent’s excep-
tions on the grounds that they do not comply with the requirements
of the Board’s Rules and Regulations. We find that the Respondent’s
exceptions and brief together sufficiently designate the Respondent’s
points of disagreement with the judge’s decision even though not
fully in compliance with the literal requirements of Sec. 102.46. Cin-
cinnati Bronze, 286 NLRB 39 fn. 1 (1987). Accordingly, the General
Counsel’s motion is denied.
The General Counsel also moved to strike the attachment to the
Respondent’s brief, alleging that it is the same attachment which was
appended to the brief to the judge and which the judge rejected. The
attachment contains part of Local 190 Official Charles Mirabile’s
testimony at an earlier 10(k) hearing which the Respondent is at-
tempting to use to contradict the testimony of Robert Fortune. The
judge rejected the testimony in question because Mirabile was not
called as a witness and the transcript was not offered or received
into evidence in this proceeding. We agree with the judge’s ruling
and grant the General Counsel’s motion to strike the attachment.
2 The Respondent’s 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 do not agree with the Respondent that the judge was com-
pelled to draw an adverse inference from the General Counsel’s fail-
ure to call as witnesses Tony Carapresso, managing director of East-
ern Contractors Association, and Bill Sweeney, an employee of
Sweet Associates, to corroborate Robert Fortune’s testimony. We
note, however, that the cases on which the judge relied concerning
the drawing of inferences have been superseded by International
Automated Machines, 285 NLRB 1122 (1987), enfd. mem. 131
LRRM 3264 (6th Cir. 1988). With regard to the particular issue
here, in light of the credibility resolutions the judge made with re-
gard to Fortune’s testimony and his specific finding that Fresina’s
testimony regarding the August 4 meeting was in many ways con-
sistent with Fortune’s testimony, the judge’s finding that an adverse
inference was not warranted was a reasonable exercise of his discre-
tion. In any event, the threats made by the Respondent on August
25 and 28, 1989, would support the judge’s findings and rec-
ommended Order.
3 The Respondent excepts to the judge’s conclusion that it threat-
ened ACMAT and also contends that the complaint is deficient in
that it alleges that the Respondent threatened, coerced, and restrained
ACMAT. The alleged threats, the Respondent argues, were made to
Sweet Associates. Although the complaint may not have been art-
fully drafted, it was clear throughout the litigation that the Respond-
ent was alleged to have made threats to Sweet Associates with an
object of forcing or requiring ACMAT to use employees the Re-
spondent represents instead of employees represented by the Sheet
Metal Workers. The purpose of Congress in enacting Sec. 8(b)(4)(D)
was to protect any employer against which a union acts unlawfully
to force reassignment of work. See Plumbers Local 195 (Gulf Oil),
275 NLRB 484, 485 (1985). We find that the Respondent has not
been prejudiced by the wording of the complaint, and we shall
amend the judge’s Conclusions of Law and substitute a new notice
to conform to the judge’s findings and his recommended Order.
Construction and General Laborers’ Local Union
No. 190, Albany, New York and Vicinity, AFL–
CIO and ACMAT Corporation and Sheet
Metal Workers International Association,
AFL–CIO and Sheet Metal Workers Inter-
national Local Union No. 83, AFL–CIO. Case
3–CD–601
January 21, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On September 16, 1991, Administrative Law Judge
Richard A. Scully issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief, a
motion to strike the Respondent’s attachment to brief
in support of exceptions, and a motion to strike excep-
tions.1
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 briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions3 and to adopt the recommended Order.
AMENDED CONCLUSIONS OF LAW
Substitute the following for the judge’s Conclusion
of Law 4.
‘‘4. The Respondent engaged in unfair labor prac-
tices in violation of Section 8(b)(4)(ii)(D) of the Act
by threatening massive demonstrations and disruptions
of work with the object of forcing or requiring
ACMAT to assign the work to employees represented
by the Respondent rather than to employees rep-
resented by the Sheet Metal Workers.’’
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Construction and General
Laborers’ Local Union No. 190, Albany, New York
and Vicinity, AFL–CIO, its officers, agents, and rep-
resentatives, shall take the action set forth in the Order,
except that the attached notice is substituted for that of
the administrative law judge.
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT threaten to engage in massive dem-
onstrations, labor disruptions, or other proscribed con-
duct in order to force or require ACMAT Corporation
to assign asbestos abatement work on the demolition
project at the third floor of the Old State Education
94 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Hereinafter, all dates are in 1989 unless otherwise indicated.
2 300 NLRB 1117 (1990).
Building in Albany, New York, to employees rep-
resented by us rather than to employees who are rep-
resented by Sheet Metal Workers International Asso-
ciation, AFL–CIO, and Sheet Metal Workers Inter-
national Local Union No. 83, AFL–CIO.
CONSTRUCTION AND GENERAL LABOR-
ERS’ LOCAL UNION NO. 190, ALBANY,
NEW YORK AND VICINITY, AFL–CIO
Alfred M. Norek, Esq., for the General Counsel.
Eugene P. Devine, Esq. of Albany, New York, and Theodore
T. Green, Esq., of Washington, D.C., for the Respondent.
DECISION
STATEMENT OF THE CASE
RICHARD A. SCULLY, Administrative Law Judge. Upon a
charge filed on October 12 and an amended charge filed on
October 20, 1989, by ACMAT Corporation, the Regional Di-
rector for Region 3, National Labor Relations Board (the
Board), issued a complaint on February 8, 1991, alleging that
Construction and General Laborers’ Local Union No. 190,
Albany, New York and Vicinity, AFL–CIO (Laborers’ Local
190), committed certain violations of Section 8(b)(4)(i) and
(ii)(D) of the National Labor Relations Act, (the Act). The
Respondent filed a timely answer denying that it had com-
mitted any violation of the Act.
A hearing was held in Albany, New York, on May 28,
1991, at which all parties were given a full opportunity to
participate, to examine and cross-examine witnesses, and to
present other evidence and argument. Briefs submitted on be-
half of the General Counsel and the Respondent have been
given due consideration. On the entire record and from my
observation of the demeanor of the witnesses, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
At all times material, Sweet Associates, Inc. was a New
York corporation with an office and place of business in
Schenectady, New York, engaged in the business of a gen-
eral contractor in the building and construction industry.
Sweet annually purchases, transfers, and delivers to its New
York jobsites goods and materials valued in excess of
$50,000 which are transported to said jobsites directly from
points located outside the State of New York. At all times
material, ACMAT was a Connecticut corporation engaged in
the business of asbestos abatement throughout the United
States, including Albany, New York. ACMAT annually de-
rives gross revenues in excess of $500,000 and purchases
and receives equipment and materials valued in excess of
$50,000 from suppliers located outside the State of New
York. The Respondent admits, and I find, that Sweet and
ACMAT are employers engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act and that La-
borers’ Local 190 and Sheet Metal Workers International As-
sociation, AFL–CIO and Sheet Metal Workers International
Local No. 83, AFL–CIO (Sheet Metal Workers), are labor
organizations within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
In August l989,1 Sweet Associates, Inc., a general con-
tractor engaged in building construction and renovation work,
was awarded a contract by the State of New York to demol-
ish the third floor of an historic building in Albany, New
York, known as the Old State Education Building, in prepa-
ration for new installation to come later. The project in-
volved asbestos abatement which Sweet was not able to per-
form itself and necessitated that it solicit bids from contrac-
tors qualified and licensed to perform such work. ACMAT
was among the bidders. In late July, after Sweet’s president,
Robert Fortune, learned that its bid for the project would be
accepted, he advised Sam Fresina, business manager of La-
borers’ Local 190, that there was a possibility that ACMAT
would be awarded the subcontract for the asbestos abatement
portion of the work. Fresina indicated that the selection of
ACMAT would be ‘‘a problem’’ and a meeting was arranged
for August 4. As a result of certain statements allegedly
made by Fresina at that meeting and in subsequent telephone
conversations with Fortune, ACMAT filed the charges that
are involved here. In the ensuing 10(k) proceeding, after a
hearing, the Board issued a decision and determination of
dispute in which it held that employees of ACMAT, rep-
resented by the Sheet Metal Workers, were entitled to per-
form the asbestos abatement work in question.2 When, after
the issuance of the Board’s determination in the 10(k) pro-
ceeding, the Respondent failed to give written notice to the
Regional Director that it would refrain from forcing
ACMAT, by means proscribed by Section 8(b)(4)(D), to as-
sign the disputed work in a manner inconsistent with that de-
termination, the instant complaint was issued.
B. The Testimony Concerning the Alleged Threats
The August 4 meeting between Sweet and Laborers’ Local
190 was held at the office of the Eastern Contractors Asso-
ciation. Fortune and Bill Sweeney represented Sweet, Fresina
and Charles Mirabile represented the Laborers, and Tony
Carapresso, managing director of Eastern, was also present.
Fortune testified that at that meeting he explained why
Sweet intended to choose ACMAT instead of the other two
contractors still under consideration for the asbestos abate-
ment subcontract. Fresina said that selecting ACMAT would
be a problem because it used sheet metal workers. He also
said that if ACMAT did not use laborers from Local 190,
‘‘it would result in labor disruptions on the job; it would re-
sult in massive demonstrations; the work would not pro-
ceed.’’ Fortune also testified that he proposed that ACMAT
subcontract some of the work to a local contractor or that
ACMAT hire some laborers from Local 190 as well as using
its own people but that neither proposal was acceptable to
Fresina. At the end of the meeting, Fresina said that if
ACMAT hired one sheet metal worker or one person from
outside Local 190 it would result in massive demonstrations
and labor disruptions.
Fortune testified that after the demolition contract was
awarded to Sweet he telephoned Fresina on August 25 to tell
him that ACMAT was the likely choice for the asbestos re-
95LABORERS LOCAL 190 (ACMAT CORP.)
moval work and why he had made that choice. Fresina told
him that there would be labor disruptions and that he could
not allow Sweet to go ahead and hire ACMAT because of
its use of sheet metal workers. Fortune again suggested that
ACMAT hire some people from Local 190 and Fresina said
that he would be willing to meet with ACMAT, if it was
willing, to talk about it. After speaking to ACMAT, Fortune
telephoned Fresina on August 28 and told him ACMAT was
willing to talk about taking some people from Local 190.
Fresina said that he would meet only if ACMAT would take
all of the people needed from Local 190 and not have any-
one else on the job. Fresina repeated the threat that if there
was a contractor who did not use Local 190 laborers there
would be labor disruptions and massive demonstrations, that
the work would not proceed and that both Sweet and the
subcontractor would lose money. On August 29, Fortune
telephoned Fresina to tell him the subcontract would be
awarded to ACMAT and to set up a prework conference.
Sweet began work on the project around the end of August
or first of September and finished in August 1990. ACMAT
was on the site from late September until the spring of 1990.
Sam Fresina testified that his duties as business manager
and principal officer of Local 190 include ‘‘protecting juris-
diction to see to it that our work isn’t overlapped by other
trades.’’ He said that at the meeting on August 4 he told For-
tune that he hoped that ACMAT would use laborers as had
been done in the past (a reference to a similar project that
Sweet and ACMAT had been involved in about 2 years be-
fore) and that they were trained and qualified. Fortune said
that he did not know what ACMAT was going to do. At the
end of the meeting, Fresina told Fortune that if ACMAT did
not go with the same agreement they had in the past and
were to award their work to sheet metal workers and bring
in people from out of town, the laborers that had worked for
ACMAT on the previous contract ‘‘would demonstrate
against that misassignment of work; demonstrate against
ACMAT Corporation for not complying with the agree-
ments.’’ Fresina also said that he would get in touch with
the commissioner of labor. In subsequent telephone conversa-
tions with Fortune, he made similar statements concerning
demonstrations. Fresina testified that he had never used the
phrase ‘‘massive demonstrations and labor disruptions,’’ but
said only that ‘‘we would demonstrate.’’ He never said
where they would demonstrate and did not say they would
take any action at the jobsite.
C. Analysis and Conclusions
In order to constitute a violation of the Act, the Respond-
ent must have communicated ‘‘a threat of illegal conduct.’’
Longshoremen ILWU Locals 40 & 8 (STC Submarine), 299
NLRB 203 fn. 2 (1990). In the present case, it is not For-
tune’s subjective interpretation of Fresina’s remarks that is
determinative, ‘‘rather, the critical considerations are the spe-
cific language used and surrounding conduct and events.’’
Teamsters Local 82 (Champion Exposition), 292 NLRB 794
fn. 6 (1989). The Respondent argues that Fresina said only
that there would be ‘‘demonstrations’’ which, in and of
itself, is too vague or ambiguous to constitute a threat and
there was no subsequent action on the Respondent’s part
which served to resolve the ambiguity. I do not agree.
I find that the credible testimony of Fortune establishes
that Fresina told him that if ACMAT were awarded the as-
bestos abatement work there would be ‘‘massive demonstra-
tions,’’ labor disruptions on the job,’’ ‘‘the work would not
proceed,’’ and that both Sweet and ACMAT ‘‘would lose
money’’ on the project. I find that Fresina’s statements were
not vague or ambiguous, but clearly constituted a threat of
illegal conduct by the Respondent. Any possible ambiguity
in the term ‘‘massive demonstrations’’ was removed by
Fresina’s further remarks that there would be labor disrup-
tions which would cause the work not to proceed. Those ad-
ditional remarks provide the context in which the totality of
his statements must be viewed. While it may be true that
Fresina did not specifically say the demonstrations would
occur at the jobsite, his statements that there would be labor
disruptions on the job, that the work would not proceed, and
that the contractors would lose money on the project, served
to remove any reasonable doubt that he was threatening that
the Respondent would engage in proscribed conduct at the
jobsite.
I found Fortune to be a credible and impressive witness
who was repeating in his testimony Fresina’s words and not
Fortune’s subjective impressions or interpretations of those
words. The Respondent’s attacks on Fortune’s credibility are
not persuasive. He spoke in a straightforward and unhesitant
manner throughout his testimony. The Respondent has not
established any basis for its apparent contention that his testi-
mony in this proceeding is inconsistent with what he said at
the 10(k) hearing. Given the excerpts read into the record
here, the opposite appears to be true. Likewise, the fact that
in his direct testimony Fortune did not refer to certain other
statements by Fresina concerning possible actions the Re-
spondent might take, which were not alleged to constitute
unlawful threats but which he admits were made, does not,
under the circumstances, cast any doubt on his credibility.
There is nothing to suggest that Fortune omitted them for
any reason other than that he did not consider them pertinent.
He freely admitted on cross-examination that Fresina said
other things during the course of their conversations.
Fresina’s testimony did little to contradict that of Fortune
or to cast any doubt on his credibility. He admitted that he
spoke about the possibility of ‘‘demonstrations’’ in several
conversations with Fortune. The only conversation about
which he offered any detail was that at the meeting on Au-
gust 4 in which he said he told Fortune that laborers pre-
viously employed by ACMAT would ‘‘demonstrate against
that misassignment of work; demonstrate against ACMAT
Corporation for not complying with the agreements.’’ While
he denied that he ever used the specific phrase ‘‘massive
demonstrations and labor disruptions,’’ his testimony does
not contradict that of Fortune that he said that there would
be labor disruptions, that the work would not proceed and
the contractors would lose money on the project, either on
August 4 or in the other conversations Fortune described.
The Respondent has attempted to use testimony given at the
10(k) hearing by Charles Mirabile, a Laborers’ Local 190 of-
ficial who attended the meeting on August 4, to contradict
that of Fortune by attaching a transcript of that testimony to
its brief in this matter. I have given that testimony no consid-
eration inasmuch as Mirabile was not called as a witness by
the Respondent and the transcript of his testimony was not
offered or received into evidence. In any event, the answer
the Respondent seeks to rely on was given in response to a
leading question posed by its counsel which was objected to
96 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Counsel for the General Counsel has moved to dismiss the com-
plaint allegation that the Respondent’s failure to give written notice
of compliance with the Board’s determination of dispute, herein, is
a separate violation of Section 8(b)(4)(D), on the basis of the
Board’s decision in Iron Workers Local 751 (Hoffman Construction),
293 NLRB 570 (1989). The motion is granted.
4 If no exceptions are filed as provided 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.
5 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.’’
and indicates only that Mirabile, not Fresina, made no threats
of massive demonstrations at that meeting. Finally, I find no
basis for drawing an adverse inference, as the Respondent
urges, because the General Counsel did not call Sweeney or
Carapresso to corroborate Fortune’s testimony about the Au-
gust 4 meeting since these witnesses were equally available
to both parties. Hitchner Mfg. Co., 243 NLRB 927 (1979);
Atherton Cadillac, 225 NLRB 421, 422 fn. 3 (1976).
In summary, I find based on the credited testimony of For-
tune that the Respondent acting through Fresina made threats
at a meeting on August 4 and in telephone conversations on
August 25 and 28 that it would engage in unlawful dem-
onstrations and disruptions of work in order to force
ACMAT to assign the asbestos abatement work to be done
at the Old State Education Building in Albany, New York,
to employees who were members of or represented by the
Respondent, in violation of Section 8(b)(4)(ii)(D) of the
Act.3
CONCLUSIONS OF LAW
1. Sweet and ACMAT are both employers engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. The Respondent, Construction and General Laborers’
Local Union No. 190, Albany, New York and Vicinity,
AFL–CIO, and Sheet Metal Workers International Associa-
tion, AFL–CIO, and Sheet Metal Workers International Local
Union No. 83, AFL–CIO, are labor organizations within the
meaning of Section 2(5) of the Act.
3. The disputed work involved is the asbestos abatement
portion of the demolition project performed at the third floor
of the Old State Education Building in Albany, New York.
4. The Respondent engaged in unfair labor practices in
violation of Section 8(b)(4)(ii)(D) of the Act by threatening
ACMAT with massive demonstrations and disruptions of
work with the object of forcing or requiring said employer
to assign the work to employees represented by the Respond-
ent rather than to employees represented by the Sheet Metal
Workers.
5. 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
Having found that the Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and to take certain affirmative
action designed to effectuate the purposes of the Act.
On the these findings of fact and conclusions of law and
on the entire record, I issue the following recommended4
ORDER
The Respondent, Construction and General Laborers’
Local Union No. 190, Albany, New York and Vicinity,
AFL–CIO, its officers, agents, and representatives, shall
1. Cease and desist from threatening to engage in massive
demonstrations, labor disruptions, or other proscribed con-
duct with the object of forcing or requiring ACMAT Cor-
poration to assign asbestos abatement work on the demolition
project at the third floor of the Old State Education Building
in Albany, New York, to employees it represents rather than
to employees represented by the Sheet Metal Workers.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its business offices and meeting halls in Al-
bany, New York, copies of the attached notice marked ‘‘Ap-
pendix.’’5 Copies of the notice, on forms provided by the
Regional Director for Region 3, after being signed by the
Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all
places where notices to members 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) Sign and return to the Regional Director sufficient cop-
ies of the notice for posting by Sweet and ACMAT, if will-
ing, at all places where notices to employees are customarily
posted.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.