Laborers Local 190 (VP Builders, Inc.)

National Labor Relations Board - Board Decisions

Aug 18, 2010

355 N.L.R.B. 532 (N.L.R.B. 2010)

DECISIONS OF THE NATIONAL LABR RELATIONS BOARD
355 NLRB No. 90
532
Local 190, Laborers International Union of North
America, AFL–CIO (VP Builders, Inc.) and
Ramsis Berghela. Case 3–CB–8687
August 18, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER
AND PEARCE
On December 27, 2007, Administrative Law Judge
Joel P. Biblowitz issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel filed an answering 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 briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions
only to the extent consistent with this Decision and Or-
der.
This case involves an allegation that the Respondent
violated Section 8(b)(2) of the Act by attempting to
cause and causing VP Builders (VP) to terminate Charg-
ing Party Ramsis Berghela’s employment because he
was not referred to the “School 19 project” jobsite from
the Respondent’s out-of-work list. The judge concluded
that the Respondent violated the Act as alleged. Central
to the judge’s conclusion was his reliance on the absence
of any written agreement between VP and the Respon-
dent containing hiring hall/referral arrangements and his
finding that VP was not bound to the project labor
agreement (PLA), which contains union referral provi-
sions that are applicable to contractors working on the
School 19 project. Contrary to the judge, we find that
VP was contractually bound to the PLA and its hiring
hall procedures. Accordingly, for the reasons discussed
below, we reverse the judge and dismiss the complaint.
I. FACTS
MLB Construction Services (MLB) was the general
contractor for the School 19 project for the City School
District of Albany. As such, it was signatory to a PLA
with the Respondent and other construction trade unions.
The PLA provided that MLB include in any subcontract
a requirement that the subcontractor sign, and be bound

1 The Respondent implicitly has excepted to some of the judge’s
credibility findings. The Board’s established policy is not to overrule
an administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. 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.
by, the terms of the PLA for work performed within the
scope of the PLA.
In May 2007,2 MLB executed a subcontract with VP to
perform demolition work at the School 19 project.3 The
subcontract identifies the scope of the work to be per-
formed as “all interior demolition and removals,” to be
completed “in strict accordance with the contract docu-
ments, drawings and specifications.” Although the sub-
contract does not specifically mention the PLA, “Note
#3” of the subcontract provides that the project “has un-
ion labor agreement requirements as outlined in specifi-
cations.” One of those specifications was the PLA.
Prior to MLB’s submission of its bid for the School 19
project, James Dawsey, vice president of operations for
MLB, met with VP co-owners Larry Nix and Joseph Ri-
ley. Dawsey testified that he provided Nix and Riley
with copies of all of the “front-end specifications” for the
project, including the PLA.4 Neither Nix nor Riley di-
rectly contradicted Dawsey’s testimony that he gave
them a copy of the PLA.5 Further, Dawsey testified that

2 All dates herein are in 2007, unless otherwise indicated.
3 The judge stated that VP and MLB executed the subcontract on
May 9. However, the evidence demonstrates that the VP representa-
tives signed the document on May 29.
4 The judge erroneously stated that Dawsey testified that VP was
given this information after, rather than before, the execution of the
subcontract.
5 Although Riley testified that he had never seen a copy of the PLA,
he clarified that position on cross-examination by the Respondent’s
counsel:
Q. Well, the contract, General Counsel’s GC-2 said you’re
bound by the contract document specifications, right?
A. Right.
Q. Did you know the specifications before you started the job
on July 2nd?
A. Right.
Q. So, had you looked at some documents with MLB’s office
or Pike-Heery?
A. Some of them documents, like them documents there, I
don’t go over all that stuff, it’s not in my area in the company to
go over everything like that. I’m mostly out in the field working.

Similarly, after testifying that Dawsey had not given him a
copy of the PLA “that he knew of,” Nix responded to the Respon-
dent’s counsel’s questions as follows:
Q. He [Dawsey] gave you copies of the specifications for the
job, right?
A. Yeah, he probably did and we got somebody else that usu-
ally goes through those and not myself.
Q. He’s testified that part of those specifications was the Pro-
ject Labor Agreement that applied to you; are you aware of that?
A.I became very well aware of it, I mean, and we
may have had it, it may be something that we just
didn’t sit down and read and go through. You know
what I mean, I’m not saying that we didn’t have it,
but we may have had it, it may be something that we
just didn’t put that type of emphasis on at the time
LABORERS LOCAL 190 (VP BUILDERS, INC.) 533
he specifically told Nix and Riley that VP would be
bound to the PLA if VP were awarded the subcontract.
Riley conceded that he knew that the subcontract bound
VP to the PLA.
Later, prior to VP’s execution of the subcontract with
MLB, representatives of the Respondent, MLB, and VP
met for a prejob conference in the offices of the school
district’s construction manager. At that meeting, the
parties principally discussed a specific provision of the
PLA which, according to the testimony of the witnesses
at the hearing, required the use of 80 percent “union”
labor and 20 percent “nonunion” labor on covered pro-
jects. As a result of their discussions at that meeting, the
parties orally agreed to modify that requirement for VP
to a 50/50 percent ratio. According to the credited testi-
mony of Nix and Riley, Respondent’s President Patrick
Kieper also indicated at this meeting that if VP knew any
individuals it wanted to hire, it could do so, provided that
the individuals were members of the Respondent.
On Friday, June 29, Riley called Ramsis Berghela to
ascertain his interest in working on the School 19 project.
Riley had obtained Berghela’s name from an employee at
another VP project. Riley asked Berghela whether he
was a member of the Respondent and, when Berghela
confirmed that he was, Riley hired him to begin work on
July 2.
On the same day, Nix went to the Respondent’s office.
He told the Respondent’s Business Manager Anthony
Fresina that VP would be commencing work on the
School 19 project on July 2, and that it needed some la-
borers. Fresina told Nix that the Respondent would pro-
vide a shop steward for the project and would provide as
many laborers as VP needed. Nix then told Fresina that
he had someone (apparently Berghela) whom he wanted
to employ on the project. Fresina responded that the
Respondent had an out-of-work list and hiring proce-
dures that must be followed, and that Nix should have
called the Respondent to obtain workers for the project.
On July 2, VP began work at the project site. The
work crew on that date consisted of Doug Ryan (a regu-
lar employee of VP), Berghela, and two or three other
union members who had been referred to the project by
the Respondent. When the onsite steward realized that
Berghela had not been referred from the Respondent’s
hiring hall, he called Kieper. Kieper met with Dawsey
and Nix at the jobsite and told them that he wanted
Berghela removed from the job and replaced by the next
individual on the Respondent’s out-of-work list.

until we began to start really having problems with
it.
Thereafter, Riley, who had been called to the jobsite
by Dawsey, joined the discussion. Riley told Kieper that
it was his understanding that VP could hire individuals
directly, as long as they were members of the Respon-
dent. Kieper said that was not what he had told Riley;
rather, he had told him that VP could directly hire indi-
viduals who previously had worked for VP. Riley di-
rected Ryan to dismiss Berghela. According to Berghela,
Ryan told him that VP had to let him go because the Re-
spondent was threatening to picket the job.
II. JUDGE’S DECISION
The judge stated that whether the Respondent Union
violated Section 8(b)(2) of the Act by causing Berghela’s
discharge “depends on whether VP was bound by the
terms of the PLA,” which the judge had previously de-
scribed as containing a provision requiring “employers
under contract with the Union to hire Union members
from the Union’s out-of-work referral list.” Relying on
the absence of any written agreement between the Re-
spondent and VP, the judge concluded that the Respon-
dent violated Section 8(b)(2). He rejected the Respon-
dent’s contention that VP was bound to the PLA’s refer-
ral provisions by virtue of the MLB-VP subcontract. He
concluded that neither Note #3 in the subcontract nor
Nix’s conversation with Fresina prior to the commence-
ment of work on the project was “sufficiently detailed or
specific enough to bind VP to the requirements of the
PLA.”
III. ANALYSIS
Section 8(b)(2) of the Act provides, among other
things, that it is an unfair labor practice for a union to
cause or attempt to cause an employer to discriminate
against an employee in violation of Section 8(a)(3) of the
Act. It is well established that, in the absence of an ex-
clusive hiring hall arrangement, a union violates Section
8(b)(2) by insisting that an employer refuse to hire, or
terminate, an individual and replace him or her with an
individual referred by the union. See, e.g., Kvaerner
Songer, Inc., 343 NLRB 1343, 1346 fn. 10 (2004). Con-
versely, where an employer and a union have agreed to
an exclusive hiring hall arrangement, and the hiring hall
is operated in a nondiscriminatory manner, it is not a
violation of Section 8(b)(2) for the union to cause the
employer to discharge an employee who was not hired
through the union’s hiring hall. See, e.g., Hoisting &
Portable Engineers Local 302 (West Coast Steel Works),
144 NLRB 1449, 1452 (1963). The party asserting the
existence of an exclusive hiring hall arrangement bears
the burden of establishing this fact. Carpenters Local
537 (E. I. du Pont & Co.), 303 NLRB 419, 429 (1991).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 534
The relevant complaint allegation states: “Respondent
engaged in the conduct described above in Paragraph VII
[attempted to cause and caused Berghela’s discharge]
because Berghela was not referred by the Respondent for
hire by VP although VP was not a party to a valid collec-
tive-bargaining agreement containing an exclusive hiring
hall provision,” at least suggesting that the Respondent
would have the affirmative burden of proving not only
that VP was bound to a labor agreement but also that this
agreement contained an exclusive hiring hall provision.
In fact, the Respondent’s answer to the complaint states
that VP was bound to the PLA as MLB’s agent and was
“therefore bound by the hiring hall practices of the col-
lective bargaining agreement.” However, at the outset of
the hearing, the General Counsel had the following ex-
change with the judge:

GC: This case does not involve the operation of
the hiring hall, per se, it’s in the background, but
there’s no allegation here that the operation of the
hall somehow violates the Act. That is not the case.
It is solely that in the absence of a collective bar-
gaining relationship.
JUDGE BIBLOWITZ: So your position is that be-
cause there’s no bargaining relationship between VP
and the Union the Union had no legal right to have
him fired?
GC: Correct, your Honor.
Judge Biblowitz: Whereas I assume MLB has an
agreement with the Union?
GC: Yes, your Honor.
JUDGE BIBLOWITZ: So if MLB had been told—
was doing the job and was told to fire him under the
same circumstances that might be—
GC: If he was not—yes, your Honor.

Thereafter, the General Counsel litigated this case on
the theory that VP was not bound to the PLA, and the
Respondent defended its conduct based on the hiring hall
arrangement imposed by the PLA through the MLB sub-
contract with VP. At no point during the hearing or in
subsequent briefs did the General Counsel argue that,
even if VP was bound to the PLA, the agreement did not
impose any exclusive hiring hall requirements that would
privilege the Respondent to seek Berghela’s removal
from the jobsite because he was not referred to VP from
the hiring hall’s out-of-work list. Similarly, the General
Counsel did not contend that there was a written or oral
exception to the PLA’s hiring hall requirements that
would permit VP to hire Berghela directly. Consistent
with the narrow theory of violation that was litigated, the
General Counsel did not except either to the judge’s fac-
tual statement that the PLA “requires employers under
contract with the Union to hire Union members from the
Union’s out-of-work referral list” or to the judge’s state-
ment that whether the Union violated Section 8(b)(2)
“depends on whether VP was bound by the terms of the
PLA.”
Contrary to our dissenting colleague, we find that there
is no open issue with respect to whether the PLA con-
tained an exclusive hiring hall provision. Were we at
this stage of the proceedings to find a violation on a the-
ory not argued by the General Counsel—that the PLA
did not contain an exclusive hiring hall provision pre-
cluding Berghela’s direct hire—we would deprive the
Respondent of the due process to which it is entitled.
The General Counsel’s representations at the hearing, his
conduct in litigating the case, and his arguments on brief
would reasonably have led the Respondent to believe that
it would not have to defend on this point. See Sierra
Bullets, LLC, 340 NLRB 242, 243 (2003); Raley’s, 337
NLRB 719 (2002).6 Further, were we to remand this
case for the judge to address the heretofore unlitigated
theory, we would be giving the General Counsel an un-
warranted “second bite of the apple” by permitting litiga-
tion of an issue that he has effectively chosen not to pur-
sue. E.g., Paul Mueller Co., 332 NLRB 1350, 1350–
1351 (2000).
In accord with the theory of violation that was liti-
gated, the judge correctly stated in his analysis that the
legality of the Respondent’s conduct “depends on
whether VP was bound by the terms of the PLA.” The
judge found that VP was not bound. We disagree.
It is true that VP did not sign any agreement with the
Respondent, VP did not receive any copy of the PLA
from the Union, the subcontract executed by VP and
MLB was the only document signed by VP in connection
with work on the School 19 project, and the subcontract
does not contain any explicit reference to the PLA.
However, Note #3 of the subcontract states: “This project
has union labor agreement requirements as outlined in

6 We do not share our colleague’s view of the record and of the cited
precedent. As described above, in concluding that the General Counsel
litigated this case on the narrow theory that the PLA did not bind VP,
we rely on more than the colloquy between the General Counsel and
the judge at the beginning of the hearing. The General Counsel never
argued here that the PLA’s hiring hall provisions would not permit the
Respondent’s action even if VP was bound to that contract. Rather, as
in the cited cases, the General Counsel pursued a theory of violation
that required the Respondent only to prove a particular defense, i.e.,
that VP was bound to the PLA by its subcontract with MLB.
Contrary to the dissent, the judge did not credit testimony that VP
and the Respondent “agreed” that VP could hire any union member it
wanted to. As discussed below, the judge found that this is what the
Respondent’s president, Kieper, said to VP officials at a prejob confer-
ence prior to execution of the MLB subcontract. The judge did not find
that VP had an agreement with the Respondent.
LABORERS LOCAL 190 (VP BUILDERS, INC.) 535
specifications.” In addition, the subcontract specifically
provides that VP’s work on the project must be com-
pleted “in strict accordance with the contract documents,
drawings and specifications.” MLB Vice President
Dawsey testified that the PLA was among the contract
specifications that MLB provided to VP prior to the exe-
cution of the subcontract. Further, Dawsey testified that
he specifically told Nix and Riley that VP would be
bound to the PLA if it were awarded the subcontract, and
Riley conceded that he knew that the subcontract bound
VP to the PLA.7 Thus, in our view, the evidence as a
whole supports the conclusion that VP received a copy of
the PLA and was aware that it was bound to that docu-
ment prior to the parties’ execution of the MLB-VP sub-
contract. Furthermore, all witnesses who testified re-
garding the prejob conference (including Riley and Nix)
indicated that the focus of that meeting was the 80 per-
cent “union”—20 percent “nonunion” labor-supply ratio
for the project, a requirement emanating from the PLA.
There would have been no need for VP to have this
meeting if it was not bound by the PLA. Similarly, there
would have been no need for Riley and Nix to ask the
Respondent’s officials if they could hire union members
directly if VP was not aware that the subcontract would
bind it to the PLA and its hiring hall procedures. The
fact that Respondent’s president, Kieper, may have mis-
stated an exception to these procedures at the prejob con-
ference, or that Riley may have misunderstood what
Kieper said, is insufficient to alter the written terms of
the PLA, particularly in light of the undisputed fact that,
subsequent to this meeting but before Berghela began
work at the School 19 project jobsite, Respondent’s
business manager Fresina told Nix that VP would have to
follow hiring hall procedures in hiring union members
for this project.
For these reasons, we conclude that the MLB-VP sub-
contract’s explicit reference to “union labor agreement
requirements” and its directive that the work be com-
pleted in strict accordance with the subcontract specifica-
tions, which included the PLA, support the conclusion
that the PLA was incorporated by reference into the sub-
contract. The Respondent therefore acted lawfully in
seeking Berghela’s removal from the School 19 project
jobsite because VP did not hire him in accord with the
exclusive hiring hall requirements of the PLA. Accord-

7 The judge credited the testimony of Riley and Nix wherever it con-
flicted with the testimony of the Respondent’s president Kieper. He
made no credibility finding with respect to Dawsey’s testimony. In any
event, as set forth above, Riley and Nix did not contradict Dawsey’s
testimony that he gave them a copy of the PLA. They simply indicated
that they did not read the binding specifications given them.
ingly, we shall reverse the judge’s decision and order that
the complaint be dismissed.
ORDER
The complaint is dismissed.

MEMBER SCHAUMBER, dissenting in part.
I join my colleagues in reversing the judge to find that
the Respondent was bound to the terms of the project
labor agreement (PLA) for performance of subcontract
work on the School 19 Project. However, that is not, or
at least should not be, the end of the matter. There re-
mains the question of whether the PLA imposed exclu-
sive hiring hall requirements pursuant to which the Re-
spondent could lawfully seek to remove employee Ram-
sis Berghela from the School 19 jobsite.
The complaint alleges that the Respondent Union vio-
lated Section 8(b)(2) when it demanded the termination
of Berghela. My colleagues concede that a violation is
established in the absence of an exclusive hiring hall
arrangement. They further concede that the existence of
such an arrangement is an affirmative defense on which
the Respondent Union bears the burden of proof as a
matter of black letter Board law. The complaint specifi-
cally alleges that “VP was not a party to a valid collec-
tive-bargaining agreement containing an exclusive hiring
hall provision.” The Respondent has never directly as-
serted, either at the hearing or in its briefs to the Board,
that the hiring hall arrangement in this case was exclu-
sive, and, indeed, the credited facts plainly support a
conclusion to the contrary.1 Nor has the Respondent ever
specifically contended that the General Counsel stipu-
lated to or conceded the issue of exclusivity. Nonethe-
less, my colleagues reach out to relieve the Union of its
burden of proof based upon a vague colloquy between
counsel for the General Counsel and the judge at the
commencement of the hearing.2 Because my colleagues’
benevolence is not warranted by either the facts3 or the
law,4 I respectfully dissent. At a minimum, I would re-

1 The judge credited testimony establishing that the Respondent and
VP agreed that VP could hire directly anyone it wanted to, so long as
the individual was a member of the Respondent Union.
2 Worse still, in stating that the General Counsel “never argued here
that the PLA’s hiring hall provisions would not permit the Respon-
dent’s action even if VP was bound to that contract,” my colleagues
essentially inappropriately shift the burden of proof to the General
Counsel to allege the nonexclusivity of the hiring hall procedures.
3 I am aware of no case, and my colleagues point to none, in which a
brief and vague preliminary exchange, such as the one at issue here,
between a judge and counsel for the General Counsel, was found to
relieve a party from establishing an essential element of an affirmative
defense. Particularly in a case such as this, where the credited record
evidence seriously calls into question the validity of the defense.
4 Not one of the Board decisions cited by my colleagues involved re-
lieving a respondent of proving an element of an affirmative defense.
Rather, in each of the cases they cite, the Board refused to find a viola-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 536
mand this case to the judge for specific factual findings
as to whether the Respondent proved that the PLA con-
tained an exclusive hiring hall arrangement permitting
the Respondent to cause Berghela’s removal from the
School 19 jobsite, and, if such an exclusive arrangement
existed, whether VP hired Berghela pursuant to a legiti-
mate exception to that arrangement.

Alfred Norek, Esq., for the General Counsel.
James Long, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me on October 30, 2007,1 in Albany, New York.
The complaint herein, which issued on September 19, and was
based upon an unfair labor practice charge that was filed on
July 5 by Ramsis Berghela, an individual, alleges that Local
190, Laborers International Union of North America, AFL–CIO
(the Union) and/or (the Respondent), attempted to cause, and
caused, Berghela to be fired from his job with VP Builders, Inc.
(VP), although VP was not a party to a valid collective-
bargaining agreement with the Union containing an exclusive
hiring hall provision, in violation of Section 8(b)(2) of the Act.
FINDINGS OF FACT
I. JURISDICTION
Respondent admits, and I find, that VP has been an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. LABOR ORGANIZATION STATUS
Respondent admits, and I find, that it has been a labor or-
ganization within the meaning of Section 2(5) of the Act.
III. THE FACTS
Simply stated, VP obtained a subcontract from MLB Con-
struction Services, LLC (MLB), to perform demolition work
for the city school district of Albany, School 19 (the jobsite).
MLB has a contract with the Union; a project labor agreement
(PLA), is part of that contract. One provision contained in the
PLA requires employers under contract with the Union to hire
union members from the Union’s out-of-work referral list. VP
is a nonunion employer that had not signed any agreement with
the Union to be bound by its contract or the PLA. Berghela, a
union member, was hired directly by VP to perform work at the
jobsite. On his first day of employment at the jobsite, he was
terminated. Counsel for the General Counsel alleges that he
was terminated by VP because of threats from the Union that if
he was not removed from the job the Union would engage in

tion based on an alternative theory advocated by a party or adopted by a
judge under circumstances where the General Counsel explicitly re-
stricted his theory of the case to a different argument. See Sierra Bul-
lets, LLC, 340 NLRB 242, 243 (2003); Raley’s, 337 NLRB 719 (2002);
Paul Mueller Co., 332 NLRB 1350, 1350–1351 (2000).
1 Unless indicated otherwise, all dates referred to herein relate to the
year 2007.
activity at the jobsite that would affect the job. The Union de-
fends that it was privileged to request Berghela’s termination;
Berghela had not been properly hired because he was a union
member and the Union’s contract requires that employees be
referred from the Union’s out-of-work list. The Union also
denies threatening VP.
On May 9, VP, by Penny Moore, one of its owners, and
MLB, by Thomas Eckert, executed a Subcontract providing for
VP to perform certain interior and demolition work at the job-
site. The attachment to this subcontract contains 22 items relat-
ing to VP’s responsibilities on the job. The only one relevant to
the issue herein is Note #3: “This project has union labor
agreement requirements as outlined in specifications.”
Berghela testified that in about the end of June, a friend told
him that he had been hired by VP to work at the jobsite. When
Berghela expressed an interest in the job, his friend discussed it
with Riley, who called Berghela on about June 29. Riley asked
him if he was a member of the Union, he said that he was, and
Riley hired him. He started working at the jobsite on Monday,
July 2. He began work at 7:30 a.m. on that day together with
three other laborers. At about 11, Riley left to go to a meeting
with Patrick Kieper, the union president, and Berghela worked
the full day. As he was leaving at 3:30 p.m., Doug Ryan, the
job superintendent, called him over, said that he was sorry, but
he had to let him go. When Berghela asked why, Ryan said that
a union representative came on the job and said that if they
didn’t lay him off, the Union would pull the men and picket the
job. Before Berghela left, Riley apologized to him, but said that
he didn’t want any problems on the job. That was the only day
that he worked for VP. He testified that about a month or 2
earlier he signed the Union’s out-of-work list, but has no idea
what position he held on the list.
Riley, one of the owners of VP along with Moore and Larry
Nix, testified that VP has never been party to a contract with
the Union and is not a member of any employer association.
The work at the jobsite began on July 2, and was expected to be
completed shortly before the end of the year. Riley attended a
prejob meeting in May in the office of Pike-Heery, the con-
struction manager for the Albany school district, which in-
cludes School 19. Also present were Nix, Kieper, and Anthony
Fresina, from the Union, James Dawsey, vice president of
MLB, and William McMordie, vice president of the Pike Com-
pany, which was engaged in a joint venture with Heery Interna-
tional. Fresina said that since VP had been awarded the subcon-
tract for the job, they had to abide by the PLA, and the principal
subject discussed was its requirement that the breakdown of
union and nonunion employees on jobs be 80/20 percent. Riley
said that breakdown was not fair and he proposed a 20/80 per-
cent breakdown instead. After some further negotiating, they
agreed on a 50 percent Union, 50 percent nonunion breakdown
for the job. Riley further testified that at this meeting, Kieper
said: “If I knew somebody in the Union I could hire them . . . if
I felt comfortable, if I knew them then I could hire them as long
as they were in Local 190, it wasn’t a problem.” VP never en-
tered into any written agreement with the Union, they were
never given a copy of the PLA, nor did they sign anything
agreeing to be bound by the union contract or the PLA, al-
though the Union did send him a booklet setting forth the bene-
LABORERS LOCAL 190 (VP BUILDERS, INC.) 537
fits that VP would have to pay to its union employees. Some-
time between the meeting at the Pike-Heery office and the start
of the job, Nix met with the Union and, afterward, informed
Riley that the Union said that they had to hire from the union
hall. When asked why he hired Berghela directly rather than
going through the union hiring hall, and its out-of-work list, he
testified that the Union told him at the Pike-Heery meeting that
he could hire directly, and he felt that it wasn’t right for them to
change it after he hired Berghela.
The relevant portions of the PLA provide, at article 2, sec-
tion 3:

This Agreement shall be binding on all signatory Unions, the
Construction Project Manager and all signatory Contractors
performing on-site Project work as defined in Article 3, in-
cluding site preparation. The Contractors shall include in any
subcontract that they let, for performance of subcontractors, of
whatever tier, that said subcontractors become signators and
bound by this Agreement with respect to subcontracted work
performed within the scope of Article 3.

The PLA, at article 4, section 2, also states that the contractors
(defined as all signatory contractors and their subcontractors,
engaged in construction work within the scope of the agree-
ment) agree to hire employees covered by the agreement
through the job referral system and hiring hall established in the
local union’s collective-bargaining agreements.
When the job started on July 2, the only nonunion employee
working at the jobsite on the first day was Doug Ryan, a regular
employee of VP. Berghela and two or three other union mem-
bers were also working that first day. For that week, VP em-
ployed Berghela and four other members of the Union. Before
the job started Riley asked some of his employees if they knew
any union members who might be interested in working on the
job and one gave him Berghela’s name. He called Berghela,
who said that he was interested, and Riley said that he would
hire him as long as he was a member of the Union, and
Berghela said that he was. On July 2, Riley received a tele-
phone call from Dawsey telling him that there were problems
on the job and the Union was going to picket the job and shut it
down. Riley said that there shouldn’t be a problem because he
had hired union people. He went to the jobsite and met with
Nix, Kieper, and Dawsey. He asked what the problem was and
Kieper said that he had to let Berghela go because he was not
hired from the Union’s out-of-work list. Riley said that it was
his understanding they he could hire directly, as long as the
employee was a union member. Kieper said that was incorrect,
that what he said was that VP could hire employees directly,
but only if they had previously worked for the company. Riley
said that was not his understanding, but if they wanted Berghela
to be let go, they should tell him. Kieper said that he was VP’s
employee, so Riley would have to tell him. Riley responded
that, “If he works for me, I’m saying the guy can still work.”
Kieper said: “it’s a problem, you have to let him go.” Riley
testified that he wasn’t happy with it, but he told Ryan to let
Berghela go. Riley testified that nobody from the Union ever
threatened to picket, or shut down the job.
McMordie testified that the initial meeting with VP, MLB,
and the Union took place in about March. He was asked:

Q. And at the meeting was it made clear that as a sub-
contractor, VP Builders was bound by the Project Labor
Agreement?
A. At that meeting, my recollection was we did not
talk about the terms of the Project Labor Agreement. What
we did talk about was actually the 80/20 clause of the Pro-
ject Labor Agreement and we had come to an agreement
on a 50/50 agreement at that meeting.
Q. My question was, was it clear from your point of
view, that VP Builders understood that they were bound
by the Project Labor Agreement as modified to 50/50?
A. Yes, in my opinion, yes.

I then asked McMordie:

JUDGE BIBLOWITZ: Did anybody at that meeting say to
the VP people, Mr. Riley and Mr. Nix, that you understand
you are bound by this agreement? Do you recollect that
statement being made to Mr. Riley or Mr. Nix?
The Witness: I don’t know if those exact words were
used, but it was the assumption in the room that every-
one—
JUDGE BIBLOWITZ: Did anyone ever say to them any-
thing about the PLA?
The Witness: I cannot recollect that.

He testified that the discussion at the meeting was principally
about the union/nonunion split, where the parties eventually
agreed on the 50/50 split.
Dawsey was asked when he first informed VP about the PLA
and its terms:

A. I can’t give you any actual dates, but prior to the
job being bid. Larry and Joe are not signatories with 190,
or any other union entity, and this job has a PLA, which
meant that if a contractor was not signatory, they would
have to enter an agreement where they would be bound
80/20 or whatever other agreement they could make with
the Union that they would be needing personnel from.
Q. Did you make that clear to Larry and Joe prior to
their granting of the subcontract?
A. Yes.

Dawsey testified that the Pike-Heery meeting took place in
about April. The initial discussion was about the PLA require-
ment of 80/20, union and nonunion employees. After some
discussion, there was agreement on a 50/50 split. There also
was discussion about the fact that since it was a prevailing
wages job, VP agreed to pay the prevailing wages and the bene-
fits for the union employees on the job to the employees and
the Union, while for its nonunion employees on the job, the
benefits would be paid directly to the employees. In answer to
some questions from me, Dawsey testified that in his initial
meeting with Nix and Riley, he told them that they would be
bound by the PLA, but he never specifically addressed the out-
of-work list maintained by the Union. He further testified that
after the execution of the subcontract, VP was given a copy of
the contract specifications of the work and the PLA. He was
called to the jobsite on July 2, where he met Nix and Kieper.
Kieper said that VP had hired a union member without going
through the Union’s out-of-work list, and he wanted him re-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 538
moved from the job and the next person on the list to replace
him. Nix and Dawsey spoke and decided that Berghela would
be let go at the end of the day. On the following morning,
Kieper sent another employee to the jobsite, apparently from
the out-of-work list. Dawsey testified that Kieper did not
threaten any picketing or work action at the facility on July 2.
Nix testified that during bidding for the work at the jobsite,
Dawsey told him that it was operating under the PLA. Like
Riley, he testified that at the Pike-Heery meeting they were told
that if they knew any union members, they could hire them to
work at the jobsite. In answer to questions from counsel for the
Respondent, Nix testified that shortly prior to starting the job he
went to the union hall to speak to Fresina about hiring policies.
Nix told Fresina that VP had a certain individual that it wanted
to hire2 and Fresina told him that when VP needed employees
for the jobsite they would have to call the Union, which would
refer employees from its out-of-work list. Subsequently, he
testified:

JUDGE BIBLOWITZ: Mr. Nix, would it be fair to say that
prior to July 2, when the job started, you knew that the
Union people that you employed under the PLA had to be
taken from the out-of-work list?
THE WITNESS: Not prior to that. That happened after
we started work. The only time that I heard about it about
a day before I discussed it with Anthony and told him that
we had someone from the Union which we thought that
we picked up, in the meeting that we had with them, that
we could use those people if we knew them. I told him we
had somebody we were going to use and may be needing
additional people and he told me how to go about doing it.
JUDGE BIBLOWITZ: Okay, let’s back up. Putting aside
this exception that may have existed for people you knew,
let’s say there were people you didn’t know and you were
looking for a Union guy. Did you know that under the
PLA, again prior to starting the job, that you had to hire
off of the out-of-work list?
THE WITNESS: No, I didn’t.
JUDGE BIBLOWITZ: You didn’t know that?
THE WITNESS: Huh-uh.
JUDGE BIBLOWITZ: You first learned that when?
THE WITNESS: After we had trouble at the job and then
the thing came up, you know what I mean, that everybody
has to be brought off the list. I didn’t even know nothing
about the list until we had the problem.
JUDGE BIBLOWITZ: So, it wasn’t until July 2nd, with
the situation with Mr. Berghela, that you knew—you
found out for the first time that if you hired a Union per-
son as one of the 50% Union, you had to get it off the Un-
ion’s out-of-work list, that was the first you knew that?
THE WITNESS: Yeah, after we got started was the first I
knew about the out-of-work list.
JUDGE BIBLOWITZ: Mr. Dawsey never told you about
that requirement of the out-of-work list?
THE WITNESS: No, he never told me.

2 Although not named, Berghela is the individual that he was refer-
ring to.
Counsel for the Respondent then questioned Nix about this
meeting with Fresina at the union hall:

Q. He showed you the forms that they fill out when
you call in so that they can send someone out?
A. I don’t recall them showing me the forms . . . I
know he and I had a conversation about me being able to
use the Union people on the job and what he has to do.
JUDGE BIBLOWITZ: When was this meeting, what [sic]
it after July 2nd or before July 2nd?
THE WITNESS: That was before we started work.

Counsel for the Respondent then resumed his questioning of
Nix about this meeting:

Q. And at that meeting you started to bring up the
name of Ramsis Berghela?
A. Yes, I did.
Q. And, Mr. Fresina stopped you and said it doesn’t
matter who, I don’t need to know that name, he told you
you had to call the hall to take off the out-of-work list?
A. He indicated that he did not want me to use that
guy on the job. Being that my partner does the hiring for
the job, said he’d already set up for this guy to come to
work . . . and that at the prior meeting we had with the Un-
ion and Pike and MLB, that they stated that if he knew
other people he could hire them—other people that were in
the Union he could hire them to work, . . . it was his deal,
he hired the guy and I wasn’t going to go against him and
tell him he couldn’t put the guy on the job. . . .
Q. So, it was your intention when you met with An-
thony, to hire this person who was not on the out-of-work
list, right—to hire Mr., Berghela? That was a done deal
when you went down to the Union hall, right?
A. Yea, as far as I know Joe had already set up for this
guy to come to work.
Q. After the Union told you that you couldn’t hire him
because he wasn’t next on the out-of-work list, you still
hired him, right? He still hired him?
A. Correct, Joe put him to work because he had dealt
with him for him to come to work, right. . . .
Q. Did you leave that meeting with Mr. Fresina at the
Laborers Union hall with the understanding that if you
knew four members of the Union you could just hire them
and never call the hall?
A. I mean I really didn’t think about it when I left
there. When I left there I knew that if we needed any other
help, other than what we already had, we were going to try
to get them through Anthony, we were going to call the
hall and get them through the Union hall.

Fresina testified that Nix came to the union office on June
29. Nix said that VP would be starting work at the jobsite and
needed laborers. Fresina said that he would have a shop steward
for the job and would send as many laborers as VP needed. Nix
then said that he had somebody that he wanted to employ on
the job and started to mention a name. Fresina, “. . . stopped
him, I said I don’t even want to know who it is. I said, we have
an out-of-work list. .I explained to him the procedures that
would have to be followed.”
LABORERS LOCAL 190 (VP BUILDERS, INC.) 539
Kieper testified that at the Pike-Heery meeting, which he felt
occurred in about early to mid-June, he told Riley and Nix that
hiring was to be done through the union hall, with the exception
that VP could hire employees it had previously employed. On
July 2, he received a telephone call from the union steward at
the jobsite saying that VP employed an individual at the jobsite
who had not been referred by the union hall. He went to the
jobsite and met with Nix and “Gary,” the MLB superintendent:

I explained to them both that we had a hiring process that we
have to go by through the hall. If an individual worked for the
company before, it was all right to hire them, but if he hadn’t
worked for them before, under the PLA Agreement, that VP
Builders has to go through the hall and request their laborers
through the hall . . . whoever was highest on the list was
called first and, apparently, this individual had jumped the list,
was currently on the list at 80, and now on your job. It wasn’t
fair to the men on the list that they should go in accordance to
the list.

He testified that he “absolutely” did not threaten a strike or
work action. On cross-examination he was asked what he asked
VP to do about the situation on July 2:

Q. . . . did you request that Mr. Berghela be removed
from the job because he didn’t come through the hall?
A. I’m trying to think exactly how it went, it’s been
some time. Yes, I believe I did say that according to the
list he has bumped the list and that we need to have—the
first guy that was supposed to be there in his spot.
Q. Did you say, therefore you have to remove Mr.
Berghela from the job?
A. I don’t remember exactly how it was said.
Q. Do you recall what was the reference to Mr.
Berghela by name? Did you refer to Mr. Berghela by
name?
A. I don’t know if I said Mr. Berghela. . . .
Q. You were made aware in this meeting that VP
would remove Mr. Berghela from the job?
A. I remember Jim Dawsey saying that he has to fol-
low the same rules—he was referring that to Joe Riley and
Larry that we have to follow the same rules—that VP
Builders has to follow the same rules that MLB has to fol-
low on the job as far as hiring on the jobsite. After that,
Joe said something like, well, he was a 190 man or some-
thing like that, I don’t remember exactly what he…said,
but he didn’t come off the list. That’s what I said, that he
didn’t come off the list and that everybody is required to
come off the list on the job.
Q. You went there for the purpose of informing VP
that this individual should be removed; is that correct?
A. No, I went there to find out how the individual got
on the jobsite. . . .
Q. So, when you went to the meeting, it was for the
purpose of having Mr. Berghela removed from the job be-
cause he wasn’t hired through the hall, correct?
A. The purpose of me was to find out how this indi-
vidual was going to work for VP Builders when he didn’t
come through the hall. . . .
Q. Then, you had the expectation that he would be
removed from the job, correct, that’s why you went to this
meeting?
A. I came there to find out what was going on, that’s
what I was doing there.
Q. You went there to insure that no member of Local
190 worked on this job unless they had been referred
through the hall; is that correct?
A. Yes, you could say that.
IV. ANALYSIS
Initially, I credit the testimony of Nix and Riley over Kieper.
Although Nix was clearly confused about the date of his meet-
ing at the union office (I find that it occurred on Friday June
29) the balance of his testimony, and Riley’s, was clear, credi-
ble, and believable. Additionally, Riley and Nix had nothing to
gain from this hearing. If anything, it would be in their best
interest to support the Union with whom it has to deal at the
jobsite. On the other hand, I found Kieper to be a less than
credible witness, not because all of his testimony was incredi-
ble, but rather because of his unwillingness to admit that he had
anything to do with Berghela’s discharge. Although there is no
direct evidence that Kieper threatened a strike or job action at
the jobsite if VP failed to discharge Berghela, Kieper clearly
was at the jobsite to tell Riley that Berghela had to be replaced
because he was not hired off of the Union’s out-of-work list,
but he refused to admit even this in response to numerous ques-
tions from counsel for the General Counsel.
Counsel for the General Counsel, in his brief, cites Iron-
workers, Local 340 (Consumers Energy Co.), 347 NLRB 578
(2006), to establish that Kieper’s conduct at the jobsite on July
2, violated the Act even if he made no express threat to VP if
they refused to fire Berghela. It is clear that Kieper, at the least,
told Riley that because Berghela was not hired off the Union’s
out-of-work list he had to be replaced by someone from the list.
Whether this action by Kieper violates Section 8(b)(2) of the
Act depends on whether VP was bound by the terms of the
PLA. VP never signed any agreement with the Union. Moore
signed the subcontract with MLB on behalf of VP, but the only
relevant provision of that subcontract is Note #3 which states:
“This project has union labor agreement requirements as out-
lined in specifications.” Counsel for the Respondent, in his
brief, alleges that this provision binds VP to the terms of the
agreements with the Union, including the PLA. I disagree and
find that this provision is not sufficiently detailed or specific
enough to bind VP to the requirements of the PLA. Nor is the
fact that Nix was told of the contractual requirement of hiring
union members from the Union’s out-of-work list a few days
before they began working at the jobsite.
Counsel for the General Counsel, in his brief, also cites
Bricklayers, Local 2 (Glenshaw Glass Co.), 205 NLRB 478
(1973); Pile Drivers Local 2396 (Tri-State Ohbayashi), 287
NLRB 760 (1987); and Kvaerner Songer, Inc., 343 NLRB 1343
(2004). These cases state that absent a valid collective-
bargaining agreement containing an exclusive hiring hall ar-
rangement, a union may not interfere with an employer’s
choice of employees. As there was no written agreement be-
tween VP and the Union, the Union had no authority to tell VP
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 540
to terminate Berghela. By causing Berghela’s termination on
July 2, the Union violated Section 8(b)(2) of the Act.
CONCLUSIONS OF LAW
1. VP has been an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union has been a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By attempting to cause, and by causing, VP to terminate
employee Ramsis Berghela on July 2, 2007, the Respondent
violated Section 8(b)(2) of the Act.
THE REMEDY
Having found that the Respondent engaged in certain unfair
labor practices, I recommend that it be ordered to cease and
desist from engaging in these activities, and that it be ordered to
take certain affirmative action designed to effectuate the poli-
cies of the Act. In that regard, I recommend that Respondent be
ordered to notify VP, in writing, that it has no objection to
Berghela being hired by VP. Additionally, I recommend that
Respondent be ordered to make Berghela whole for any loss of
wages or other benefits that he suffered as a result of its having
caused him to be fired by VP, by paying to him a sum of money
plus interest equal to that which he would have earned but for
Respondent’s discrimination against him, less interim earnings,
in accordance with the principals enunciated by the Board in
Florida Steel Corp., 231 NLRB 651 (1977), and New Horizons
for the Retarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]