Pile Foundation Construction Co.

National Labor Relations Board - Board DecisionsMar 10, 1981

254 N.L.R.B. 1305 (N.L.R.B. 1981)

1305 attd Sudbrink.' findings,* Order.3 10(c) ' Party'q (7verrule credi- hilily Inc., (1950), F.2d V o u n s e l Re- svndent rhould to inadvertent. \hall ORDER W ~ L L 8(a)(3) $151, $87,000 PILE FOUNDATION CONSTRUCTION WE NOT refuse to recall from layoff Edward H. Case 29-CA-7589 our employees because they engage in concert- ed activity for their mutual aid or protection March 10, 1981 as is their right under Section 7 of the Nation- DECISION AND ORDER al Labor Relations Act. Pile Foundation Construction Company, Inc. On September 25, 1980, Administrative Law Judge James L. Rose issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, and counsel for General Counsel filed an exception to the Adminis- trative Law Judge's Decision. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, and conclusions of the Administrative Law Judge and to adopt his recommended ORDER Pursuant to Section of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Pile Founda- tion Construction Company, Inc., New York, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recom- mended Order, except that the attached notice is substituted for that of the Administrative Law Judge. The Charging name appears as amended at the hearing. Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to an administrative law judge's resolutions with respect to unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are Incorrect. Standard Dry Wall Products, 91 NLRB 544 enfd. 188 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. for General Counsel excepts to the Administrative Law Judge's failure to include in the notice to employees a provision that cease and desist from "threatening employees with discharge they engage in activity on behalf of the Union or other protected activity." We find merit in this exception. Inasmuch as the above lan- guage is included in the recommended Order, it appears that the failure include it in the proposed notice was Accordingly, we modify the proposed notice to include the above-quoted language. APPENDIX NOTICE TO EMPLOYEES POSTED BY OF THE National Labor Relations Board An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. 254 NLRB No. 177 WE WILL NOT threaten employees with dis- charge should they engage in activity on behalf of the Union or other protected activi- ty. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL offer immediate reinstatement to Edward Sudbrink and Walter Degen to their former jobs or, if those jobs no longer exist, to substantially equivalent positions of employ- ment and WE WILL make them whole for any losses they may have suffered as a result of our refusal to recall them, with interest. DECISION JAMES L. ROSE, Administrative Law Judge: This matter was heard before me on July 14 and 15, 1980, at Brooklyn, New York, upon the General Counsel's com- plaint which alleges principally that on November 5, 1979, the Respondent laid off and refused to recall two of its employees in violation of Section and (1) of the National Labor Relations Act, as amended, 29 U.S.C. et seq. The Respondent generally denies the substantive alle- gations of the complaint although admitting that on Oc- tober 30, 1979, it did lay off the two employees in ques- tion. It contends, however, that neither the layoffs nor the failure to recall these two employees was in any way violative of the Act, and that in any event the Respond- ent's business does not meet the Board's jurisdictional standards. Upon the record as a whole, including my observation of the witnesses, and the briefs and arguments of counsel, I hereby make the following: FINDINGS OF FACT A N D CONCLUSIONS OF LAW I . JURISDICTION The Respondent is a New York corporation engaged in the business of providing and performing pile driving and related services at various construction projects, principally in and around the New York City area. In 1979, the Respondent purchased through Davidson Pipe Supply, Inc., a distributor of pipe valves and fit- tings, worth of pipe and pipe fittings manufac- tured either in Ohio or Pennsylvania. This material was shipped directly from either Ohio or Pennsylvania to the 106 1)ECISIONS LABOK HOARD Ilavidson delivered Da- $50,000. & $50,000. 2(2), (6), 11. 2(5) 111. ofice 1/2 jobsite, Sud- sufticient 40 Sud- Harkins, '>junk Sud- previously - McHugh dock- knew \ Harkins I OF NATIONAL RELATIONS warehouse in New York City and was in turn by Davrdson to the Respondent. It is unknown, however, when the pipe was actually delivered to vidson inasmuch as it came out of inventory. Prior to de- livery, Davidson did some welding on the pile thus in- creasing its value, to an extent unknown from this record. Nevertheless, the best estimate is that the value of material shipped from out of State to the Respondent in 1979 exceeded In addition, in 1979, the Respondent purchased through Browne Bryant Lumber Company, a whole- sale lumber dealer, $163,952.41 worth of treated wood piling which was shipped directly to the Respondent from a treating plant in Hainesport, New Jersey. Although there is some question concerning how much the Respondent paid for the items it purchased and received in 1979, it is clear that the Respondent did order and receive directly from points outside the State of New York materials valued in excess of $50,000. In addition, it received indirectly from outside the State of New York materials valued in excess of Accord- ingly, I conclude that the Respondent does meet the Board's jurisdictional standards for both direct and indi- rect inflow and I conclude that the Respondent was at all times material herein an employer engaged in inter- state commerce within the meaning of Section and (7) of the Act. THE LABOR ORGANIZATION INVOLVED Dockbuilders Local 1456, United Brotherhood of Car- penters and Joiners of America, AFL-CIO, is an organi- zation which admits to membership individuals who work in the construction industry as dockbuilders (pile- drivers), some of whom work for the Respondent and have for many years. The Union represents these em- ployees and in fact has, through the District Council of Carpenters, negotiated successive collective-bargaining agreements with the General Contractors Association of New York; members of the General Contractors Associ- ation, including the Respondent, have become parties to those contracts, the time of the events litigated in this matter. I therefore conclude that the Union is, and all times material herein has been, a labor organization within the meaning of Section of the Act. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts Robert E. Stuhler is the sole owner and president of the Respondent. In addition to Stuhler, the Respondent employs on a permanent basis an clerk and "more or less one or another foreman." The Respondent is a pile driving contractor; when it has jobs to perform, it hires a crew of dockbuilders as well as a crane operator and oiler. Stuhler testified that his jobs average about 2 or 3 days; however, he occasionally has a large job, such as the KLM terminal at the John F. Kennedy airport which lasted about 2- months. A work crew traditionally consists of a working fore- man, who is in charge of the Respondent's operation at the and four crewmembers. At the times material herein, John Rosati was the foreman. He was hired by the Respondent in July or August and became the fore- man in September. During the times material the crew consisted of the two alleged discriminatees, Edward brink and Walter Degen, as well as James McHugh and George Mitchell. Although Stuhler testified that during 1979 he employed between 30 and 40 dockbuilders and had apparently the only employees from at least Septem- ber through November. It also appears that, at least during the times material, the Respondent did not have work to keep a full crew employed hours each week. For instance, during the 4 weeks between the payroll period ending September 24 to October 15, Sudbrink worked only 7 days, and in 1 week had no work at all. In this respect, i t might be noted, Sudbrink testified that he was laid off for a month from late September to late October, which substantially corresponds to Stuhler's testimony from his records. Sudbrink was appointed shop steward by the vice president and business agent of the Union. During October the Respondent had four small jobs. While there is some dispute about the manning require- ments when rigging the crane and when the piledriver is in operation, the parties agree that on these jobs brink complained that the Respondent was not following the contract. On one occasion Degen refused to cut piles when told to do so by Foreman Rosati because such would have left the crew short one man. On two occa- sions, Sudbrink called Arthur the union business representative, who later came to the project in question. Rosati and Stuhler agreed that complaints about short manning were made by Sudbrink. In late October, the yard" job ended and brink and Degen were sent back to the Fink's Bakery project to cut tops off piles (which had not been done because of the manning dispute). They then, apparently, were going to go on to the KLM project at Kennedy airport. However, start of that project was de- layed by the Government (presumably the FAA). Thus, on the evening of November 1, they were told by Rosati not to report to Kennedy. And on Sunday, November 4, Rosati called them to say that the project had been post- poned indefinitely and they would be laid off. The FAA apparently reversed its position to allow the construction equipment to be moved onto the project. Thus Stuhler testified that on Monday, November 5, he instructed Rosati to hire a new crew. They rehired and Mitchell but, instead of recalling Sudbrink and Degen, the Respondent hired two other builders who, according to Stuhler, had worked for the Respondent some years in the past and whom Stuhler to be capable workers. On Monday, November 5, Sudbrink and Degen went to the Respondent's yard to get their paychecks and learned that a new crew was being formed and the KLM work was going forward. The next day they went to the project and talked to Rosati, asking him what the prob- lem was and, stating that they were "claiming" their jobs. They then contacted the Union and on Wednesday, went to the KLM project. PILE tiarkins Re- hpondent Harkins Harkins Sud- Har- 1. 8(a)(l) Shouttuck Denn N. ~ ~ ' F.2d Harkins' 8(a)(l) 8(a)(3) 8(a)(l) 19 t o b e Resoondent. emolovees. eviience iha; job- there- 1307 FOUNDATION CONSTRUCTION confronted Rosati asking him why the had not rehired Sudbrink and Degen. testified, "Well, he [Rosati] says, it comes from the office-they were troublemakers, he said, but I don't want to say nothing because I'll get in trouble." This statement attributed to Rosati by is undenied by Rosati. Rosati testified that Stuhler had told him to hire the two new employees and specifically not to hire brink and Degen. Rosati testified that in response to kins, asking why they changed the crew, "I said, we changed because we decided to hire different people." B. Analysis and Concluding Findings The refusal to recall Neither the collective-bargaining agreement, industry practice, nor the National Labor Relations Act prohibits the Respondent from hiring whomever it chooses, unless the determination not to hire a specific individual is mo- tivated by that individual's having engaged in protected concerted or union activity. If a company in fact dis- charges, o r refuses to rehire, an individual because he is engaged in protected activity then such is discrimination within the meaning of the Act and is violative of Section and (3). Such I conclude was the case here. Sudbrink and Degen had worked for the Respondent several months during which they had been laid off and recalled. There was no complaint about their work and both had been journeymen in the industry for more that 10 years.' N o very good reason was given why they were not recalled on November 5; and no reason at all was advanced why Mitchell, who was junior in line of service, was recalled. Stuhler testified, in an apparent attempt to minimize the work rule complaint by Sudbrink, that these prob- lems come up occasionally, although he did state that there had been only three or four in 1979, three of which were in late October initiated by Sudbrink. Stuhler testified that he did not tell Rosati not to rehire Sudbrink and Degen. Rather, when forming the new crew, he told Rosati to hire the two new individuals whom he knew to be out of work and who had been good workers for him some years in the past. Although initially agreeing with Stuhler's version, Rosati subsequently testified that Stuhler affirmatively told him not to rehire Sudbrink and Degen. In any event, how it came about that Sudbrink and Degen were not recalled is more a matter of emphasis than substance. They had been working for the Respondent, had been laid off in the past and recalled, and this time were not. T o replace them is, of course, permissible unless motivat- ed by their union or other activity protected by the Act. Nor is the Company required to act rationally o r consist- ently. However, where the Respondent does not d o so such may raise the inference that the true motive is un- lawful. Mining Corporation v. L.R. B., Stuhler testified that the general contractor of the Fink's Bakery pro- ject had some kind of criticism of Degen; however, even Schuler testified that such criticism is common and usually the problem goes away. Thus. cannot conclude, nor does the Respondent contend, that poor work performance was a factor in the determination not to recall Sudbrink and Degen. 362 466 (9th Cir. 1966). In short, Stuhler's self-serv- ing denial need not be accepted at face value. The only conceivable explanation for Stuhler's deter- mination not to recall Sudbrink and Degen, where he had done so in the recent past, is the fact that Sudbrink had complained about work rule violations in which Degen had joined. This inference is supported by direct evidence. credible and undenied testimony is that Rosati told him that Sudbrink and Degen had not been rehired because they were "troublemakers." The only area of "troublemaking" was the work rule complaints. Finally, I specifically discount Stuhler's claim that "the others were better qualified and better known to us." They had not worked for the Respondent for some years. And at best Stuhler's testimony was vague and conclusionary. I therefore conclude that, on November 5 when the Respondent determined to reform a crew for the KLM project, Stuhler affirmatively determined not to recall Sudbrink and Degen because of their activity in connec- tion with crew manning when rigging up or rigging down the machine and when the machine was in oper- ation. It is questionable whether o r not the contract requires a four-man crew and a foreman at all times while the machine is being rigged and during some portions of op- eration. Nevertheless, such is an interpretation of the contract which not even Stuhler disputed. In any event, crew manning is certainly a condition of employment and the employees' activity relating to it certainly was carried on in a concerted manner. I therefore conclude that the activity engaged in by Sudbrink and Degen was protected, concerted activity within the meaning of Section 7 of the Act. T o discrimi- nate against them because they engaged in such activity was violative of Section and, to the extent that it was also related to the Union and enforcing the contract, was violative of Section as well. By refusing to recall Sudbrink and Degen on November 5, because they had protested the Respondent's manning, the Respondent violated Section and (3) of the Act. 2. The alleged threats It is alleged that on October James Brodkin, who is alleged a professional engineer and supervisor for the threatened The overwhelm- ing in this matter is Brodkin was not an employee of, o r in any way compensated by, the Re- spondent. At the times material hereto, he was employed by the owner of the building on which the Respondent was a subcontractor and was representing the owner's in- terest. His responsibility was to insure that the Respond- ent performed correctly. While Brodkin was at the site and had some general supervisory authority, he never acted in any agency capacity on behalf of the Re- spondent. There is no evidence the Respondent did any- thing which imbued Brodkin with the authority (actual o r apparent) to act on its behalf; nor is there any evi- dence that the Respondent acquiesced in the statements Brodkin made which are the alleged violations. I I 108 8(a)(l) 2(6) affirnla- E W. (1950), 1 (1977).2 10(c) lsis & Co.. V n Sec. find- Ings. Act.4 backpay oftice " A p p e n d i ~ . " ~ * IT IS Sec. thus, H~ckmott Fmdr. Inc.. Stales "Posled Enforc~ng " I DECISIONS OF NATIONAL fore conclude that whatever statements Brodkin may have made cannot be attributed to the Respondent. It is similarly alleged that, on October 26, Rosati threatened employees by stating "that if we kept on complaining he's going to get rid of us and hire a new gang." This is from the generally credible testimony of Degen. While this was apparently denied by Rosati, I find that Degen's more detailed testimony concerning this event is more accurate than Rosati's general denial. Inasmuch as Rosati did have supervisory authority and was in fact in charge of the project at the time this oc- curred, I must conclude that such a statement amounts to a threat of discharge for engaging in protected activity and is therefore violative of Section of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices found above, occurring in connection with the Respondent's business, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce within the meaning of Section and (7) of the Act. V . REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I shall recommend that it cease and desist therefrom and take appropriate tive action including offering Edward Sudbrink and Walter Degen reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent po- sitions of employment, and make them whole for any wages and other benefits they may have lost as a result of the discrimination against them in accordance with the formula set forth in Woolworth Company, 90 NLRB 289 with interest as provided for in Flor- ida Steel Corporation, 231 NLRB 65 Upon the foregoing findings of fact, conclusions of law, and the entire record in this matter, and pursuant to the provisions of Section of the Act, 1 hereby make the following recommended: The Respondent, Pile Foundation Construction Com- pany, Inc., New York, New York, its officers, agents, successors, and assigns, shall: See. generally, Plumbing Heating 138 NLRB 716 (1962). the event no exceptions are filed as provided by 102.46 of the Rules and Regulations of the National Labor Relations Board, the conclusions. and recommended Order herein shall, as provided in LABOR RELATIONS BOARD 1. Cease and desist from: (a) Refusing to recall from layoff o r otherwise discrim- inating against employees because they have engaged in concerted activities protected by Section 7 of the Na- tional Labor Relations Act o r have engaged in activity on behalf of the Union. (b) Threatening employees with discharge should they engage in activity on behalf of the Union or other pro- tected activity. (c) In any like o r related manner interfering with, re- straining, o r coercing employees in the exercise of the rights guaranteed them by Section 7 of the 2. Take the following affirmative action: (a) Reinstate Edward Sudbrink and Walter Degen to their former jobs or, if those jobs no longer exist, to a substantially equivalent position of employment, and make them whole for any wages and other benefits they may have lost as a result of the discrimination against them, with interest. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of due under the terms of this Order. (c) Post at its New York copies of the attached notice marked Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by the Respondent's authorize representative, shall be posted by the Resppondent im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, de- faced, o r covered by any other material. (d) Notify the Regional Director for Region 29, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. FURTHER RECOMMENDED that the allegations of the complaint not specifically found herein are dismissed. 102.48 of the Rules and Regulations, conclusions and Order, and all objections thereto shall be deemed waived for all purposes. The acts of the Respondent in this matter do not demonstrate a pro- clivity to violate the the Act; the narrow injunctive order is appro- priate 242 NLRB 1357 (1979). In the event that this Order is enforced by a Judgment of a United Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read Pursu- ant to a Judgment of the United States Court of Appeals an Order of the National Labor Relations Board