Laborers Local 836 (Corbet Construction)

National Labor Relations Board - Board Decisions

May 29, 1992

307 N.L.R.B. 801 (N.L.R.B. 1992)

801
307 NLRB No. 125
LABORERS LOCAL 836 (CORBET CONSTRUCTION)
1 The caption has been amended to reflect the correct names and
roles of the respective parties.
2 In accordance with the General Counsel’s exceptions, we correct
the judge’s references to the Respondent’s refusal to refer member
Ralph E. Carpenter to Upon This Rock Construction and its attempt
to cause Kirilla Construction to discharge him, as violations of Sec.
8(a)(1) rather than Sec. 8(b)(1)(A) of the Act. We also find merit
in the General Counsel’s exceptions to the judge’s failure to find
that the Respondent violated Sec. 8(b)(2) as well as Sec. 8(b)(1)(A)
by this conduct and by its refusal to refer Carpenter to Corbet Con-
struction, a refusal that the judge found violated Sec. 8(b)(1)(A). See
Plumbers Local 669 (Best Fire Protection), 268 NLRB 1218, 1221–
1222 (1984), enfd. in relevant part 778 F.2d 8 (D.C. Cir. 1985). We
have modified the judge’s findings and conclusions of law accord-
ingly.
3 We find merit in the General Counsel’s exceptions to the judge’s
failure to remedy the violations found by including an expunction
remedy and adding to the make-whole remedy a provision for reim-
bursement to the Charging Party for his lost wages, travel costs, and
other expenses incurred in appealing the union fines. See Laborers
Northern California Council Local 294 (Baker Co.), 275 NLRB 278,
280 (1985). Because of these modifications, we have set out the
Order in full.
4 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.’’
Laborers’ International Union of North America,
Construction and General Laborers’ Local
Union No. 836, AFL–CIO (Corbet Construc-
tion, Inc.)1 and Ralph E. Carpenter
Laborers’ International Union of North America,
Construction and General Laborers’ Local
Union No. 836, AFL–CIO (Upon This Rock
Construction, Inc.) and Ralph E. Carpenter
Laborers’ International Union of North America,
Construction and General Laborers’ Local
Union No. 836, AFL–CIO (Various Employers)
and Ralph E. Carpenter
Laborers’ International Union of North America,
Construction and General Laborers’ Local
Union No. 836, AFL–CIO (E.E. Austin and
Son, Inc.) and Ralph E. Carpenter. Cases 6–
CB–8050, 6–CB–8099, 6–CB–8177, 6–CB–8320,
and 6–CB–8455
May 29, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On December 19, 1991, Administrative Law Judge
Thomas A. Ricci issued the attached decision. Counsel
for the General Counsel filed limited exceptions and a
supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions as modified, and to adopt the recommended
Order as modified,3 and set forth in full below.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and orders that the Respondent, Laborers’
International Union of North America, Construction
and General Laborers’ Local Union No. 836, AFL–
CIO, Bradford, Pennsylvania, its officers, agents, and
representatives, shall
1. Cease and desist from
(a) Filing or processing internal union charges
against members, or refusing to refer them for employ-
ment, or causing or attempting to cause their discharge,
because they engaged in protected dissident union ac-
tivity.
(b) In any like or related manner restraining or co-
ercing employees in the exercise of their Section 7
rights.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Notify the Kirilla Construction Company, in
writing, that it has no objection to the hiring of Ralph
E. Carpenter.
(b) Make Ralph E. Carpenter whole for any loss of
earnings he may have suffered because of the Re-
spondent’s having refused to refer him for employment
with Corbet Construction, Inc. and Upon This Rock
Construction, Inc., in the manner prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest
computed as in New Horizons for the Retarded, 283
NLRB 1173 (1987).
(c) Reimburse Ralph E. Carpenter for any lost
wages, travel costs, and other expenses incurred by
him in appealing his fines, in the manner set forth in
Ogle Protection Service, 183 NLRB 682, 683 (1970),
with interest as prescribed in New Horizons for the Re-
tarded, supra.
(d) Remove from its files any references to the
charges against Carpenter and notify him in writing
that this has been done and that it will not use the
charges against him in any way.
(e) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
records necessary to analyze the amount of its liability
under this Order.
(f) Post at its meeting halls, offices, hiring halls, or
any places where it customarily posts notices to its
members in Bradford, Pennsylvania, copies of the at-
tached notice marked ‘‘Appendix.’’4 Copies of the no-
tice, on forms provided by the Regional Director for
Region 6, after being signed by the Respondent’s au-
thorized representative, shall be posted for 60 consecu-
802 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tive days in conspicuous places including all places
where notices to members are customarily posted. Rea-
sonable steps shall be taken by the Respondent to en-
sure that the notices are not altered, defaced, or cov-
ered by any other material.
(g) Notify the Regional Director for Region 6 in
writing within 20 days from the date of this Order
what steps the Respondent has taken to comply.
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 file or process internal union charges
against any members, or refuse to refer them for em-
ployment, or cause or attempt to cause their discharge,
because they engaged in protected dissident union ac-
tivity.
WE WILL NOT in any like or related manner restrain
or coerce our members in the exercise of their Section
7 rights.
WE WILL remove from our files any references to
the charges against Ralph E. Carpenter and notify him
in writing that this has been done and that we will not
use the charges against him in any way.
WE WILL notify the Kirilla Construction Company,
in writing, that we have no objection to its hiring
Ralph E. Carpenter for any employment.
WE WILL make Ralph E. Carpenter whole for any
loss of earnings he may have suffered because of our
refusal to refer him to Corbet Construction, Inc. or
Upon This Rock Construction, Inc., plus interest, and
for any loss of wages or travel costs and other ex-
penses he may have incurred in appealing his fines.
LABORERS’ INTERNATIONAL UNION OF
NORTH AMERICA, CONSTRUCTION AND
GENERAL LABORERS’ LOCAL UNION
NO. 836, AFL–CIO
Sandra Beck Levin, Esq., for the General Counsel.
Stephen M. Schmerin, Esq., of Pittsburgh, Pennsylvania, for
the Respondent.
Ralph E. Carpenter, of Kane, Pennsylvania, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
THOMAS A. RICCI, Administrative Law Judge. In this ex-
tended proceeding, two hearings were held, one on April 24
and 25, 1991, and another on October 8, 1991, both in Brad-
ford, Pennsylvania. The hearings were based on five separate
complaints, all resulting from charges filed by an individual,
Ralph Carpenter. The charges were filed on November 20,
1989, January 23, May 18, November 29, 1990, and June 18,
1991. The question presented in all these complaints is
whether Local 836, the Respondent here, acting through its
authorized agents caused Carpenter, the Charging Party, to
be denied employment here and there in violation of Section
8(b)(1)(A) of the Act. A brief was filed by the General
Counsel after the first hearing closed.
On the entire record, and from my observation of the wit-
nesses, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYERS INVOLVED
The various complaints name three companies as the Em-
ployers involved in this case. They are: Corbet Construction
Company, Under This Rock Construction Company, and
Kirila Contractors. The complaints detail the extent of these
companies’ business in commerce sufficient to place them
under the jurisdiction of the Board in these proceedings. The
various answers admit the correctness of these commerce al-
legations. Accordingly, I find that Corbet Construction Com-
pany, Under This Rock Construction Company, and Kirila
Contractors are employers within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
I find that Laborers’ International Union of North Amer-
ica, Construction and General Laborers’ Local Union No.
836, AFL–CIO is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
All this litigation grew out of a strong animosity that de-
veloped in 1989 between Carpenter, an ordinary member of
Laborers Local 836, and Donald Cummins, its business
agent. Cummins is in the charge of the Union’s referral sys-
tem. He is authorized to send members out to work from his
list of unemployed members when an employing company
calls for men either by name or just generally, Cummins is
a salaried employee and agent of the Local.
In June 1989, because the Local was short of funds, its ex-
ecutive board decided to assess all members $75 to support
the Union. When Carpenter received a notice to pay that
amount, he objected. As a result of his opposition, the Union
held a vote at a membership meeting, where the decision to
assess the money was affirmed by a majority. Carpenter paid
his amount but continued to the union officers as dishonest
people. He spoke very derogatively about Cummins’ partici-
pation in union affairs. The result was continued animosity
between the two men.
Finally, on September 18, 1990, Lawrence Dunbar, the
Union’s president, filed an internal union charge against Car-
penter accusing him of seeking work by himself and working
for a nonunion contractor. A second charge was filed against
Carpenter on October 10, 1990, by Albert Glover, a union
steward. This one saying that Carpenter had ‘‘defamed’’ the
Union.
A trial board, consisting essentially of all the officers of
the Local, considered the two charges on November 18,
803LABORERS LOCAL 836 (CORBET CONSTRUCTION)
1990. As to the first charge, the one filed by employee Glov-
er the board found Carpenter guilty and ordered him to pay
a $1500 fine. Both Dunbar and Donald Cummins sat on that
trial board and signed the order fining Carpenter. As to the
second charge, filed by the Union’s president, Carpenter was
again found guilty and for this offense was fined $5000. Nei-
ther Dunbar nor Cummins sat on the trial board for that
charge and fine. But Cummins’ father, Nicholas Cummins,
did sit on the board for that decision.
Carpenter appealed both of these decisions against him by
the Local to the Union’s International in Washington, D.C.
The decision there was to overrule both lower decisions and
to set aside the entire findings by the trial boards. Referring
to the $5000 fine imposed on Carpenter for working 2 or 3
days at a particular location, the International’s appeals panel
called it ‘‘grossly disproportionate,’’ quite apart from the fact
it was not justified at all on the lack of merit in the charge.
That Carpenter had a statutory right to object to the way
the officers, or even a majority of the union members, chose
to operate the Union, is so clear as to require no citation of
authority here. The very fact that the Union’s International
itself so held is enough to prove that by its processing of
those charges the Local was attempting to coerce Carpenter
in his statutory right. It was truly one technique, among oth-
ers, used by the local officers to silence Carpenter’s out-
spoken criticism of how the local officers operated. Cummins
was always in a special position to carry out the Local’s re-
solve against that one member by virtue of his position as
the referral agent of the Union. It was he who had power
every now and then to give work to members or to see that
a man did not go to work when an employer wanted him.
I find that by processing those two charges against Car-
penter the Respondent, Local 836, violated Section
8(b)(1)(A) of the Act.
As to the other complaint allegations of coercion against
Carpenter, a question of credibility exists. The General
Counsel offered testimony showing that Cummins, in charge
of referrals, refused to send Carpenter when some company
asked for him, that he took action to have Carpenter removed
from one job or another, etc. Cummins contradicted all this;
he denied having said anything to anyone that might have
prejudiced Carpenter’s employment. Do I believe Cummins,
or do I believe Carpenter? Both were emotionally involved
in this entire proceeding. Cummins unquestionably still very
much resented having been publicly called a crook by the
other men. And Carpenter was still affected by the conduct
of the Local when its officers turned against him so ‘‘dis-
proportionately.’’ However, the fundamental credibility ques-
tion is perfectly resolved by the testimony of several wit-
nesses who were outside the internal conflict within the
Union, and who had nothing to gain by lying in this case.
Accordingly, when their testimony supports the complaints,
and when it questions the complaint allegations, I credit
them.
The first complaint deals with a company named Corbet
Houses, a construction company. On November 6, 1989, Dan
Corbet, of that company, telephoned Business Agent
Cummins and said he needed two laborers and made clear
he wanted Ralph Carpenter to be one of them. Cummins
came back with ‘‘what’s wrong with Yasurek?,’’ as both
Carpenter and Cummins testified at the hearing. Corbet re-
peated that he wanted Carpenter. He had already called the
man at home the day before and had asked him to come to
work.
The next day Cummins sent two members of the Union
from his out-of-work list—Yasurek and Pierotti. The work
lasted 2 days. This means Carpenter was denied 2 days’
work because of Cummins’ position that he should not get
the job despite the Employer’s clear request. As to this inci-
dent there is no credibility issue involved at all. Cummins
defended at the hearing with the argument that because
Corbet did not after the wrong two men had been sent from
the hall, call Cummins again to complain, his refusal to send
Carpenter must be overlooked. It is not a good defense.
Cummins’ conduct that day was in violation of the statute by
Local 836, and the Union must now pay Carpenter for the
2 days of work it caused him to lose.
Carpenter also spoke at length about his employment with
another company, named Upon This Rock, whose manager
is Ray Gorski. There is much confusion in his testimony
about this company, when he worked, how long he was used
now and then, etc. But, again, one thing is clear. On January
23, 1990, Gorski telephoned Cummins and asked that Car-
penter be sent out to work for him. He asked for two men
but was explicit that he wanted Carpenter. Cummins sent two
men—Holjencin, as a steward, and an ordinary member
Wildfire. His explanation at the hearing was that he tele-
phoned Carpenter’s house from his office after getting
Gorski’s request but that no one answered. And to make his
story more credible, later, on January 24, 1990, he wrote a
letter to Gorski saying ‘‘he had been unable to reach Car-
penter,’’ and on January 29, 1990, he wrote a similiar letter
to Carpenter, giving the same explantion as to why he did
not refer him as requested by Upon this Rock. At the hearing
Cummins said he wrote these two letters on the advice of his
lawyer.
Would a business agent who gets no answer to his tele-
phone call run to his lawyer for advice as to how to protect
himself that same day? I do not credit Cummin’s statement
that he really tried to communicate with Carpenter but was
unable to do so. He sent the man named Wildfire in Car-
penter’s place to further his resentment against the man be-
cause of his too independent spirit as a union member.
Again, Cummins’ refusal to refer Carpenter that day as re-
quested by the employer, was a clear violation of Section
8(a)(1) of the Act chargeable to the Respondent. I do not
know how much Carpenter would have earned had he gone
to work for Upon this Rock on January 24, 1990. The
records of that company will show how much Wildfire
earned on that assignment, and that will be the amount the
Respondent must now pay to Carpenter, with interest, to
make him whole.
Another company about which there was much detailed
testimony—most of it not really relevant to the true issue of
this case—its name Kirila Construction Company. Ronald
Kirila, its vice president, is the day-to-day operator of the
Company. He uses many laborers out of Local 836, on and
off.
Apart from the quarreling that went on on this work-
place—Carpenter and those few union members who felt as
he did, against the larger number who greatly resented his
arrogance against the established officers of the Union—a
critical fact must be stated at the start. Carpenter worked in
this place—there is no way of knowing just how long—but
804 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
he never lost a day of work because of the activities of either
of Cummins himself or the employees who hassled Carpenter
on the job. From his testimony:
Q. Did Mr. Kilrila get rid of you?
A. No, he did not.
Q. Okay. So you didn’t lose any work on this
project?
A. No, no.
Because of the conflict among the employees, many of
them walked off the job because they could not stand Car-
penter’s bossiness and his criticisms of the Union. This wor-
ried Cummins at times and he spoke to Kirila about Car-
penter. All that is needed here is Kirila’s testimony quoting
Cummins. The rest of the many witnesses were all emotion-
ally involved and therefore were not as reliable as the out-
sider—Kirila. From his testimony:
Q. Do you recall receiving a telephone call from
Local 836 business agent Don Cummins?
A. Yes.
Q. To the best of your recollection please tell us
what Mr. Cummins said to you and what you said to
him?
A. Well, he wanted me to—he told me to get rid of
Ralph and he would send some good men and I said—
Q. Did you respond to him?
A. Yes. I said Ralph is a good worker as far as I
can see he is a good worker and I plan on keeping him.
Well, he said you get rid of him and I will send you
some good men, and I said no that I was going to keep
him, if you want to send me some good men, go ahead,
but I was going to keep Ralph.
Q. Do you recall him saying there were some prob-
lems?
A. Yes, he did, he told me he had a problem with
Ralph and I said how come you didn’t want Ralph, and
he said we had a problem with him and I will send you
some other good men.
This record is replete with evidence that at the bottom of
Carpenter’s difficulty with his fellow workers—all fellow
members of the Union—lay his longstanding criticisms of
how the officers were running the Local. Many of the men
were related to those officers; virtually all of them had
agreed with the $75-a-man payment that the Local had im-
posed on them, and thought little of Carpenter’s attempt to
overrule it. It is probably true that on this Kirila job Car-
penter tried to correlate work more efficiently, even drove
some of the men to work harder, I can understand employees
resenting this, but it has nothing to do with statutory rights
under this Act. But, that the driving force behind the trouble
on the job stemmed from internal union conflict between
Carpenter’s ideas as to how the Local should be run and that
out of the majority, is a fact of life.
I can only conclude, considering the record and its en-
tirety, that when Cummins kept pressing Kirila to discharge
Carpenter he was violating Section 8(a)(1) of the Act and I
so find.
The fifth complaint which issued on August 31, 1991,
names E.E. Austin & Son, Inc., as the Employer involved.
Again, the Respondent answer admits that that company also
is an employer engaged in commerce within the meaning of
Section 2(5) of the Act.
Two incidents are said to prove unfair labor practices by
the Local in this story. On about April 18, 1991, Terry Den-
nis, a superintendent of Austin, telephoned Cummins and
asked that a laborer be sent to the jobsite. Dennis testified
that when he asked for Carpenter Cummins answered that
‘‘he would send me a steward the next day.’’ Cummins did
that and sent Bob South as steward.
Cummins’ failure to try to get in touch with Carpenter in-
stead, and send him in place of South, is said to have been
motivated by an intent to continue punishing Carpenter for
his earlier disruption of the Union’s functioning. There is no
proof of that factual assertion in this instance. Besides, it is
unquestioned that the business agent has a right to see that
there is always a union steward on the job, and that when
there is only one man on the job when it starts it must be
a steward. It is also clear Cummins has the right to select
who shall be the steward. This is all he did in this instance,
I find nothing wrong with Cummins acting in sending Smith,
as steward on this job, instead of Carpenter.
On May 28 or 29 (the record is not clear as to the date)
Dennis again needed a man. He testified that he spoke to his
foreman, Sam Pullian, about getting Carpenter on the job and
asked him to call the Union’s hall and ask for a man. Pullian
did that. Dennis continued to testify as follows about
Pullian’s talk with Cummins on the phone. ‘‘He was—talk-
ing to Mr. Cummins about that we would need a laborer for
Friday which was—this was Wednesday and he was going
to request Mr. Carpenter, but Mr. Cummins said—wouldn’t
let him really talk and said that he would be sending out an-
other steward.’’
The next day Cummins sent a laborer named Sean Morris
to the job as a steward. Cummins’ testimony that the Austin
Company had been working that job for 3 days without a
Local 836 steward is uncontradicted. Therefore, there was
nothing wrong with Cummins sending a steward right away.
Besides, since Pullian did not testify, there is really no evi-
dence of anti-Carpenter malice in whatever Cummins did
that day.
With the steward now on the job on May 31 the Company
needed more men. Dennis told Morris to call the hall and
handed him a list of names, on which Carpenter’s was at the
top. According to Dennis, the steward said, ‘‘he thought that
that would be a difficult thing because Ralph and the Union
had problems and that he didn’t think that he would be sent
out at that time.’’ ‘‘Q. He didn’t think Mr. Cummins would
send him out? A. Yes, that is what I understood from talking
to John [Morris].’’
The next day Jim Morgan an ordinary member laborer ar-
rived at the job.
Morris, who testified, recalled Dennis did tell him to get
Carpenter if he could, and then added he called the hall, and
Cummins’ home also, and wasn’t able to get in touch with
anyone there. He then said that because Morgan had called
him, and needed a job, he, Morris, told Morgan to come out
to that jobsite.
There was still another request for a laborer on about July
1 on this project. Dennis again called Cummins on the phone
and asked for Carpenter, as he recalls. Cummins said ‘‘he
would do the best he could.’’ Dennis’ testimony concludes
with the following:
805LABORERS LOCAL 836 (CORBET CONSTRUCTION)
1 To confuse matters even more Carpenter, in his often confused
testimony, said that during this very period he was working full time
5 days a week for another company, and working 2 days a week—
Saturdays and Sundays, on the Austin project at overtime pay.
Q. Did you also ask him to find out if—excuse me—
did you also tell Mr. Cummins on that date—did you
also provide him with a list of four individuals that you
wanted that day from which one would be taken?
A. I specified Ralph Carpenter because it is the first
one on the list. That is the one I wanted and then I
says, ‘‘if he is not available,’’ I said, ‘‘here are some
additional people that have worked for us that my of-
fice has sent me that I would like to have.’’
Ray Bhe arrived on the job the next day. He was one of the
men listed on Dennis’ suggested names.
Cummins admitted that he had sent Morris and Morgan to
that jobsite. As to the July 1 request, his testimony is that
Dennis listed four men as friends because ‘‘they had worked
for him before,’’ and said that Cummins was free to select
any man. Bhe was one of them.
No one on behalf of the Austin Company ever said any-
thing to any union officer, or indeed to any steward, about
the wrong man having been referred out of the hall. To start
with, if Dennis really wanted Carpenter for any special as-
signment—he certainly must have known him well—all he
had to do was call him himself and put him to work. All the
employees involved in this case are free to seek and accept
jobs entirely independently of the hiring hall.
As to Cummins’ selection of which out-of-work members
to send out he offered the most plausible explanation pos-
sible. He regularly chooses those men who have the least, or
no workmen’s compensation due them. If the man still has
many weeks of unemployment insurance due him, they must
wait until the men in need go to work first. It is undisputed
that the men Cummins did send out had much greater need
than Carpenter in this respect. Carpenter admitted that when
this happened, he still had ‘‘a couple of months’’ of work-
men’s compensation due him.
The record does not support this last allegation of illegal
conduct by Local 836, and I shall therefore make no findings
against it.1
IV. THE REMEDY
The Respondent must be ordered to cease and desist from
again commiting the unfair labor practices. It must also be
ordered to make whole Ralph Carpenter for any loss of pay
he has suffered because of the Respondent’s coercive action
against him.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activity of the Respondent set forth in section III,
above, occurring in connection with the operations of the
various interstate companies detailed above, have a close, in-
timate, and substantial relationship to trade, traffic, and com-
merce among the several States and they tend to lead to
labor disputes burdening and obstructing commerce and the
free flow of commerce.
CONCLUSIONS OF LAW
1. By filing internal union charges against Ralph Carpenter
and then fining him $1500 and $5000 for having exercised
his protected statutory right, by refusing to refer Carpenter
for employment at the specific request of the Corbet Com-
pany and thereby causing him to lose 2 days’ pay, by refus-
ing to refer Carpenter to work at the specific request of a
company called Upon This Rock, and by urging the Kirila
Construction Company to discharge Carpenter, the Respond-
ent has violated and is violating Section 8(b)(1)(A) of the
Act.
2. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]