Prote Contracting Corp.

National Labor Relations Board - Board Decisions

Oct 15, 1974

214 N.L.R.B. 79 (N.L.R.B. 1974)

PROTE CONTRACTING CORP. 79
Prote Contracting Corp. and Juan Pombo and District
Council No. 9, International Brotherhood of Paint-
ers & Allied Trades , AFL-CIO. Cases 29-
CA-3704, 29-CA-3713, and 29-CA-3786
October 15, 1974
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
On June 21, 1974, Administrative Law Judge Paul
E. Weil issued the attached Decision in this proceed-
ing. Thereafter, Respondent filed exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and has
decided to affirm the rulings, findings, and conclu-
sions of the Administrative Law Judge and to adopt
his recommended Order.
ORDER
Pursuant to Section 10(c) 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, Prote Contracting Corp.,
Brooklyn, New York, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
Regional Director, on behalf of the Board's General Coun-
sel, issued a complaint alleging that Respondent violated
Section 8(a)(3) of the Act by laying off and thereafter fail-
ing and refusing to recall seven named employees and by
those layoffs and by interrogations and threats directed to
its employees violated Section 8(a)(1) of the Act.' By its
duly filed answer Respondent denied the commission of
any unfair labor practices. On the issues thus joined, the
matter came on for hearing before me in Brooklyn, New
York, on May 7 and 8, 1974. All parties were present or
represented by counsel and had an opportunity to call and
examine witnesses and to adduce relevant and material evi-
dence. At the close of the hearing, the General Counsel
and Respondent delivered oral argument on the record and
waived briefs.
On the entire record in this matter and in consideration
of the oral arguments, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent is a corporation operating in Brooklyn, New
York, in the business of general construction. Respondent
operates solely as a contractor to the school board of
Queens County for which it does such maintenance work
as painting, plastering, tiling, installing windows, and the
like on a contractual basis. Respondent annually derives
from the city of New York income in excess of $50,000
from the work it performs for the school board. The city of
New York annually purchases goods and 'materials valued
in excess of $50,000 directly from outside the State of New
York. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
DECISION
STATEMENT OF THE CASE
PAUL E. WEIL, Administrative Law Judge: On January
29, 1974, Juan Pombo filed with the Regional Director for
Region 29 of the National Labor Relations Board, herein-
after called the Board, a charge alleging that Prote Con-
tracting Corp. violated Section 8(a)(1) and (3) of the Act by
discharging Pombo and five other employees because of
their membership in District Council No. 9, International
Brotherhood of Painters & Allied Trades, affiliated with
AFL-CIO and the Building Construction Trades Council.
On February 1, 1974, District Council No. 9, International
Brotherhood of Painters & Allied Trades, AFL-CIO, here-
inafter called the Union, filed a charge (Case 29-CA-3713)
with the said Regional Director containing the same allega-
tion as Pombo's charge. On March 28, 1974, the Union
filed a second charge (Case 29-CA-3786) alleging that Re-
spondent discharged an additional employee, Euripidis
Pantzos, for the same reason. On March 29, 1974, the said
III. THE ALLEGED UNFAIR LABOR PRACTICES
Background
It appears that prior to 1968 Prote Contracting Corp.
performed its painting and related work with employees,
under a union contract. In 1968, the president and chief
operating authority of Respondent, Theoclites Deme-
triades, who is generally called Mr. Prote by his employees,
informed the Union that he would thereafter operate solely
as a general contractor, subcontracting his painting work.
In-November 1971, Respondent. signed a memorandum
agreement that any work under the jurisdiction of the
Union called for in Respondent's contracts would be re-
ported to the Union and that any subcontractors who did
1 The complaint also alleged a violation of Sec. 8(a)(4) of the Act by the
same acts and conduct and by additional acts and conduct. During the
hearing , it appearing that one of the alleged discriminatees was no longer in
this country, the General Counsel withdrew the 8(a)(4) and connected
8(a)(I) allegations.
214 NLRB No. 11
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such work would be "signed with District Council No. 9."
This contract expired on November 18, 1972, and was ap-
parently not renewed.
In the fall of 1973, the Union received information that
in one of its contract jobs Respondent, instead of subcon-
tracting the painting, was using its own employees. At this
time Respondent had no contract with the Union. The
Union's business agent , Blumberg, met Demetriades at a
jobsite and suggested that he sign a contract with the
Union. Demetriades declined to do so, telling the Union to
sign up other painting contractors first and then he would
sign a contract.
In December, Blumberg had discussions with some of
the employees concerning their joining the Union. At this
time Respondent's painting crew consisted largely of Span-
ish employees who spoke little or no English.2 The Union's
contacts with the employees generally were through one of
the foremen, Alphonso Castro, who is also Spanish and
with whom one of the employees lived. The employees
agreed with Castro that they should join the Union, appar-
ently largely because of the fringe benefits offered by the
Union in the form of medical and dental insurance.
On January 18, Blumberg met with the employees on the
jobsite just before noon and they apparently all agreed to
sign authorization cards; however, he had none with him.
Demetriades arrived at noon. Blumberg and two other
union agents who were with him shook hands with Deme-
triades and suggested that he come down to the union hall
and sign an agreement . Demetriades again said that when
the other contractors doing work for the Board of Educa-
tion signed a contract he would. At this point, Blumberg
told him that the employees were willing to sign union
cards and Demetriades responded that he had no more
work and would discharge the employees. Blumberg ar-
gued that he knew that Respondent had more work from
contracts that he had received from the Board of Educa-
tion. Nevertheless, Demetriades said that he had no more
work and would discharge the employees.
Blumberg and his fellow organizers went to their office,
got a supply of authorization cards, and returned to a bar
at which they had arranged to meet the employees, all of
whom, together with Foreman Castro, signed authorization
cards.
On January 23, the Union filed a petition for an election
among the painters and helpers employed by Respondent.
At the time of the above occurrences, Respondent was
working with painters in two schools. At P.S. (Public
School) 165 two employees, Jose Gonzales Otero and Juan
Pombo, were employed under the direction of Foreman
Castro. At the New Town High School, Ramon Insua, Is-
mael Rial, Jose Pepe Gonzales, Euripidis Pantzos, Desider-
io Pombo, Luis Castro, and Felipe Beiro were working un-
der the direction of Foreman James Satchell. On January
25, both employees, Otero and Juan Pombo, at P.S. 165
and four of the employees at New Town, Ramon Insua,
Ismael Rial, Pepe Gonzales, and Felipe Beiro, were laid off
for lack of work. There was less than 1 percent of the work
left to be done at P.S. 165 and it remained uncompleted on
2 With the exception of one employee, Pantzos, who spoke only Greek.
the day of the hearing. Both foremen and the three remain-
ing employees, Pantzos, Desiderio Pombo, and Luis Cas-
tro, continued working at the New Town High School job.
On February 4, 1974, Pantzos, having received his W-2
form, thought that it showed less deductions than had been
made from his wages. He asked Foreman Castro about this
and Castro took him to Respondent's office where he con-
fronted Demetriades and asked him about what he con-
ceived to be a mistake. Demetriades apparently answered
in a volatile fashion and told Pantzos that he was not
trying to steal from him and that his W-2 form was correct.
According to Pantzos' version of the interview, as he
walked in to "Mr. Prote's" office, Demetriades said "are
you a Mafioso?" Pantzos asked why he used that word and
Demtriades answered, "because the people in the Union
are Mafiosos, are you with the Union too?" Pantzos re-
sponded that he did not know and Demetriades asked him
why he came there.
According to Demetriades' testimony, he said nothing
about Mafioso or about the Union but gave Pantzos a
check for the 3 days' work that he had earned up to that
time and told him that when more work was available he
would call him back. Demetriades testified that he in fact
called Pantzos back to work. He explained that when Pant-
zos filed for unemployment compensation, he, Deme-
triades informed the Labor Department that he had work
for Pantzos but that Pantzos thereafter never contacted
him. There is no indication that Demetriades ever contact-
ed Pantzos directly. Pantzos testified that the unemploy-
ment people told him that Prote had called and said that he
should come back to work. He asked whether he would be
paid the union wage and was told that they did not know.
He never went back to work for Respondent. Apparently
the job he was doing when he was laid off, scraping the
gymnasium floor, remained uncompleted. It appears that
thereafter some of this work had been completed by the
remaining employees and supervisors.
Demetriades testified that he laid the employees off be-
cause he had no more work for them, although he has at
present several contracts from the School Board remaining
to be done.
The record contains a letter addressed to Respondent
from Casual Decor Painting, Inc., dated July 18, 1973, stat-
ing:
As per your request, we propose to paint the interior
and exterior of the above premises as per Board of
Education specifications for the amount of $11,000.
On January 21, 1974, Respondent wrote to Casual Decor
Corporation, the following letter:
Gentlemen:
Please sign and return one copy of this correspon-
dence indicating your acceptance of this proposal.
Proceed with the painting and finishing at the above-
mentioned school (Sarah J. Hale High School Annex)
as per paragraph 2.1 of above-mentioned specifica-
tion, all blue prints, standard details, and applicable
standards. All work included above for the sum of
$10,500.
PROTE CONTRACTING CORP.
The letter contains a signature line for Casual Decor which
bears a signature similar to that which appears on the July
18, 1973, letter. Respondent contends that the subcontract-
ing of the work at Sarah J. Hale High School Annex had
been in its contemplation since July and that nothing re-
mained to be done but the ministerial act of signing the
contract.
The record also reveals that Casual Decor Painting com-
menced on or about February 8, 1974, and is still working
on the Sarah J. Hale school job. In addition, it appears that
Respondent has contracts for painting at three other
schools. The painting in none of them has been com-
menced and no subcontracts have been let for them. There
is no evidence that any subcontractor has been asked to
bid on any of these three schools. Although Demetriades
testified that a subcontractor must be approved by the
Board of Education and that he must notify the board that
he wants to subcontract and get their permission to do so,
he testified that he has not received written permission to
subcontract the painting work at Sarah J. Hale nor has he
asked for permission to subcontract the work in any of the
other schools. Indeed, he testified that he expected to sub-
contract the work at these three schools but has not yet
selected the subcontractors. He testified further that he did
not have to notify the School Board, an apparent contra-
diction to testimony he had earlier given.
Discussion and Conclusion
I conclude that Respondent, faced with what he con-
ceived to be additional costs of operating under a union
contract, determined to subcontract his painting work. For
this reason, he subcontracted the Sarah J. Hale work which
is presently being done by another firm and he contem-
plates subcontracting other contracts that he has already
been awarded by the School Board. As a result of this fact,
all of Respondent's employees have been laid off.
Respondent contends that its decision to subcontract the
Hale job preceded the advent of the Union. However, the
July 18, 1973, letter was not in any way proven other than
it came from Respondent's file. Respondent argued with
regard the Hale job that its early determination to subcon-
tract is demonstrated by the fact that it got a bid from the
subcontractor before it submitted its bid to the School
Board. However, the force of this argument is completely
dissipated by the fact that Respondent made no such ar-
rangements with regard to the additional three schools
which it now expects to subcontract, nor has it selected a
subcontractor. I conclude that Respondent did not decide
to subcontract the Hale job until after January 18, 1974,
when it learned that all of its employees had signed union
cards and that its decision to subcontract is the direct re-
sult of the employees' union activity.
An employer has a right to abandon all or part of his
business rather than deal with a union,3 but if he chooses to
avoid dealing with the union by staying in business and
subcontracting the work that would be done by the em-
ployees who chose the union, thereby effectively discharg-
3 N. L. R, B. v. Darlington Manufacturing Company, 380 U.S. 263 (1965).
81
ing such employees, he violates Section 8(a)(3) and (1) of
the Act.' This appears to be precisely what Respondent did
in the instant case. Demetriades testified that none of his
painting work was subcontracted in the year 1973, al-
though it appears that at an earlier time he had attempted
to rescind the union contract by subcontracting all of his
painting work and thereafter had agreed with the Union
that his painting work would be subcontracted only to con-
tractors who had contracts with the Union. It thus appears
that the decision of whether to subcontract the painting
work depended largely if not solely on whether Respon-
dent could work with his own employees without the inter-
vention of the Union. Upon the appearance of the Union,
Respondent promptly began subcontracting. I find that by
so doing Respondent violated Section 8(a)(1) and (3) of the
Act and that the employees named in the complaint were
laid off or discharged in violation of Section 8(a)(3).
The Independent 8(a)(1) Allegations
The 8(a)(1) allegations are supported on the record only
to the extent that Pantzos testified that he was asked by
Demetriades whether he was a Mafioso, which Deme-
triades explained as meaning a union man. It is admitted
by Respondent that it knew of the union activities of its
employees and there was no secret about it. The "interro-
gration" of Pantzos was more in the nature of rhetorical
abuse than an interrogation. It is not intrinsically coercive
but merely illustrates the animosity of Demetriades to-
wards the Union. I do not find that it violates Section
8(a)(1) inasmuch as I believe it has no tendency to interfere
with, restrain, or coerce employees. Accordingly, I recom-
mend that the complaint be dismissed insofar as this is
alleged to be a violation.
The Discharge of Euripidis Pantzos
Respondent contends that Pantzos was discharged, as
Pantzos testified, because he complained about his income
tax. It is clear that Pantzos was among the employees who
are affected by Respondent's subcontracting work and, to
the extent that his future employment was thereby affect-
ed, I find that he was discriminated against as were his
fellow employees. Pantzos, however, was one of those re-
tained by Respondent to complete the job at the New
Town High School. When, on February 8, he was laid off
by Respondent, he had several days' work remaining. This
work has not yet been done. At the time of his layoff,
Demetriades first accused Pantzos of being a union man
and then discharged him. I find that the twin irritations of
Pantzos' having joined the Union and his. questioning his
income tax deductions resulted in his premature layoff.
When Respondent realized that he had several days' work
left for Pantzos on his specialty of scraping the gymnasium
floors and found that Pantzos was applying for unemploy-
ment, Demetriades told the unemployment people to send
Pantzos back to him and Pantzos did not come. While this
will affect Pantzos' backpay to the extent of the time it
would have taken for him to finish the gymnasium floor
4 Walker Company, 183 NLRB 1322 (1970), and cases therein cited.
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
scraping, it does not affect the ultimate conclusions of dis-
crimination resulting from the subcontracting aspect of the
case. Accordingly, I conclude that Pantzos was indeed
twice discriminated against, individually and collectively,
in violation of Section 8(a)(l) and (3).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above , occurring in connection with Respondent 's opera-
tions described in section 1, above, have a close , intimate,
and substantial relationship to trade , traffic , and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow thereof.
Upon the basis of the above findings of fact and upon
the entire record in this case , I make the following:
CONCLUSIONS OF LAW
1. Prote Contracting Corp. is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
• the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By discharging Ramon Insua, Ismael Rial, Jose Pepe
Gonzales, Felipe Beiro, Jose Gonzales Otero, Juan Pombo,
and Eruipidis Pantzos because they sought to have the
Union represent them for purposes of collective bargain-
ing, Respondent has discriminated against employees in
violation of their rights guaranteed in Section 7 of the Act,
thereby engaging in unfair labor practices within the mean-
ing of Section 8(a)(3) of the Act.
4. By laying off Euripidis Pantzos on February 8, 1974,
because of his union activities, Respondent has engaged in
and is engaging in unfair labor practices within the mean-
ing of Section 8(a)(3) of the Act.
5. By the layoff and discharge of the employees set forth
in subparagraphs 3 and 4, above, Respondent has inter-
fered with, restrained, and coerced its employees in the
exercise of their rights guaranteed by Section 7 of the Act
and thereby has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
It having been found that Respondent has engaged in
certain unfair labor practices, it is recommended that it
cease and desist therefrom and that it take certain affirma-
tive action which is necessary to effectuate the -policies of
the Act. I find that Respondent subcontracted its painting
operation and discharged its painting employees because
they joined the Union and authorized the Union to bargain
collectively on their behalf. Accordingly, I shall recom-
mend that Respondent be ordered to reestablish its paint-
ing operation and reinstate its painting employees.' Re-
spondent shall also make its painting employees whole by
paying them the earnings which they normally would have
received from the date of their discharge to the date of
Respondent 's offer of reinstatement , less any net interim
earnings , which shall be computed on a quarterly basis in
the manner set forth in F. W. Woolworth Company, 90
NLRB 289 (1950), with interest at the rate of 6 percent per
annum as set forth in Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
Upon the foregoing findings and conclusions and the
entire record , and pursuant to Section 10(c) of the Act, I
hereby issue the following recommended:
ORDER6
Respondent, Prote Contracting Corp., Brooklyn, New
York, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in District Council No. 9,
International Brotherhood of Painters & Allied Trades,
AFL-CIO, or any other organization of its employees, by
discharging or otherwise discriminating against them in re-
gard to their hire or tenure of employment or other term or
condition of employment.
(b), In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-
organization, to form labor organizations, to join or assist
District Council No. 9, International Brotherhood of
Painters & Allied Trades, AFL-CIO, or any other labor
organization, to bargain collectively through representa-
tives of their own choosing, and to engage in.other concert-
ed activities for the purposes of collective bargaining or
other mutual aid or protection or to refrain from engaging
in such activities.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act:
(a) Reestablish its painting operation and offer to Ra-
mon Insua, Ismael Rial, Jose Pepe Gonzales, Jose Gon-
zales Otero, Juan Pombo, and Euripidis Pantzos immediate
and full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions with-
out prejudice to their seniority or other rights and privi-
leges and make each of them whole for any loss of earnings
he may have suffered as a result of the, discrimination
against him in the manner provided in the section of this
Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to determine the amount of backpay due and the
rights of reinstatement under the terms of this Order.
5 The remedial provisions of this order do not pertain to Felipe Beiro,
inasmuch as the General Counsel stated that Beiro has been deported to
Spain.
b In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings, ,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed'waived for all purposes.
PROTE CONTRACTING CORP. 83
(c) Post at its place of business in Brooklyn, New York,
copies of the attached notice marked "Appendix." ' Copies
of said notice, on forms provided by the Regional Director
for Region 29, shall, after being duly signed by an author-
ized representative of Respondent, be posted by Respon-
dent immediately upon receipt thereof and be maintained
by it for a period of 60 consecutive days thereafter in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken to ensure that said notices are not altered, defaced,
or covered by any other material.
(d) Notify the Regional Director for Region 29, in writ-
ing, within 20 days from the date of this Order what steps
the Respondent has taken to comply herewith.
7 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had a chance to give
evidence, the National Labor Relations Board has found
that we violated the National Labor Relations Act and has
ordered us to post this notice and we intend to carry out
the Order of the Board and abide by the following:
The Act gives all employees these rights:
To engage in self -organization
To form , join, or help unions
To bargain collectively through representatives of
their choosing
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all of these things.
WE WILL NOT do anything that interferes with, re-
strains, or coerces employees with respect to these
rights.
WE WILL NOT discourage membership in District
Council No. 9, International Brotherhood of Painters
& Allied Trades , AFL-CIO , or any other labor orga-
nization of our employees , by discharging them or in
any other manner discriminating in regard to their
hire or tenure of employment or any term or condition
of employment.
WE WILL offer to Ramon Insua, Ismael Rial, Jose
Pepe Gonzales, Euripidis Pantzos, Jose Gonzales Ote-
ro, and Juan Pombo immediate and full reinstatement
to their former jobs or , if these jobs no longer exist, to
substantially equivalent positions , without prejudice to
their seniority or other rights and privileges and WE
WILL make each of them whole for any loss of pay he
may have suffered as a result of our discrimination
against him.
PROTE CONTRACTING CORP.