Morlot Carpentry, Inc.

MORLOT CARPENTRY, INC. 77 3 Morlot Carpentry, Inc. and William J. Koenig and Local 455, United Brotherhood of Carpenters and Joiners of America, AFL-CIO Local 455, United Brotherhood of Carpenters and Joiners of America, AFL-CIO and William Koenig and Morlot Carpentry, Inc. Cases 22- CA-9077 and 22-CB-4064 August 27, 1980 DECISION AND ORDER BY MEMBERS JENKINS, PENELL O, AND TRUESDALE On March 14, 1980, Administrative Law Judge Arthur A. Herman issued the attached Decision in this proceeding. Thereafter, General Counsel filed exceptions and a supporting brief, and Respondents each filed briefs in answer thereto. 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 briefs and has decided to affirm the rulings, find- ings,' and conclusions 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 complaint be, and it hereby is, dismissed in its entirety. I General Counsel has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc.. 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cir 1951). We have carefully examined the record and find no basis for reversing his findings DECISION STATEMENT OF THE CASE ARTHUR A. HERMAN, Administrative Law Judge: This case was heard at Newark, New Jersey, on Septem- ber 24, 25, and 26, 1979, upon a consolidated complaint issued on May 2, 1979, which complaint was based upon a charge filed on March 14, 1979, by William J. Koenig, an individual, in Case 22-CB-4064, and a charge filed by Koenig on March 19, 1979, in Case 22-CA-9077. The complaint alleges, in substance, that Respondent Union, Local 455, United Brotherhood of Carpenters and Join- ers of America, AFL-CIO, herein called the Union, by threats and other means in violation of Section 8(b)(l)(A) and (2) of the Act, caused Respondent Company, Morlot 251 NLRB No. 106 Carpentry, Inc., herein called Morlot, to discriminatori- ly refuse to transfer and to lay off Koenig, in violation of Section 8(a)(1) and (3) of the Act, because Koenig en- gaged in internal union actions in opposition to George Clark, the business agent of the Union. In their separate, duly filed answers Respondents deny the commission of any unfair labor practices. Upon the entire record in this case, and upon the briefs of the General Counsel and Respondents duly sub- mitted, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT MORLOT Respondent Morlot, a New Jersey corporation, with its principal office and place of business at 9 Baker Court, Clifton, New Jersey, is a subcontractor in the building and construction industry engaged in the busi- ness of performing carpentry construction work at var- ious jobsites located in New Jersey and other States of the United States. During the annual period material to this proceeding, Morlot performed services valued in excess of $50,000, of which services valued in excess of $50,000, were performed in, and for various enterprises located in, States other than the State of New Jersey. The complaint alleges, the parties admit, and I find that Morlot is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE I.ABOR ORGANIZATION INVOLVED It is admitted, and I find that Respondent Union is, and has been, a labor organization within the meaning of Section 2(5) of the Act. Ill. THE ALI.EGEt) UNFAIR ABOR PRACTICES The consolidated complaint alleges, Respondents admit, and I find that at all times material herein Morlot and Local 455 have been parties to a collective-bargain- ing agreement covering carpenters employed by Morlot at its New Jersey jobsites; that pursuant to the provisions of that agreement, Local 455 maintained and operated an exclusive job referral system under which it referred car- penters to Morlot; that this agreement allowed Morlot to request the referral of a carpenter who had been previ- ously employed by Morlot within the 6-month period prior to such request in the territorial jurisdiction of Local 455; and that on or about June 28, 1979, William J. Koenig was referred by Local 455 for employment with Morlot at a jobsite in Branchburg, New Jersey, known as the Merck Animal Farms job. At this point, it is essential that we familiarize our- selves with Koenig's relationship with Local 455 before proceeding to the events leading up to his eventual layoff by Morlot on September 29, 1978. Koenig, a journeyman carpenter, became a member of Local 455 in 1974, and has been a member in good stand- ing to this day. George Clark, Koenig's alleged adver- sary, held the position of recording secretary for Local I The pehling of the na.me of hc Company appears a. correctied at the hearing MORLOT CARPENTRY. INC. 773 774 DECISI()NS OF NATIONAL. IABOR RELATIONS O()ARD 455 from 1972-74, was president of the local from 1974- 76, and was elected business agent in July 1976, the posi- tion he has held to the present time. On October 3, 1975. Koenig started corresponding with the New Jersey Car- penters Fund seeking information regarding the pension and welfare funds of the carpentry local unions, includ- ing Local 455. The record shows that between October 3, 1975, and November 25, 1975, no less than seven let- ters passed between Koenig and the Fund.2 They depict an unhappy Koenig, who could not seem to get the full information he sought, and the Fund authorities who ap- peared to be reluctant to give Koenig what he wanted. Eventually, in 1976, Koenig took his case to the floor of Local 455 and at several meetings attempted to show to the membership that the Fund had breached their fidu- ciary trust and that Local 455 should seek another source for their welfare plan. As a result of Koenig's efforts, a committee was formed by the then president of Local 455, Robert Gannone, to meet with its Fund authorities. However, Koenig was not included in the committee until he made a motion to be included and was then elected to the committee by the membership. Eventually, as a result of the pressure brought to bear by the com- mittee in 1978, the Fund was transferred to another car- rier resulting in a 38-percent saving to the Fund. In 1977, a second committee was formed to investigate the insur- ance coverage and again Koenig was not included until someone dropped off the committee and its chairman asked Koenig to join it. It was while serving on this committee that Koenig, representing the committee, went to the Fund's offices in Springfield, New Jersey, and obtained the master policy number. Upon his return that evening, Koenig received phone calls from George Clark and Robert Gannone castigating him for engaging in atrocious and rude conduct in Springfield, which Koenig denied. The second recorded activity that Koenig engaged in vis-a-vis George Clark involved Local 455's attempt to amend its bylaws. It appears from the record that on 3 consecutive Wednesday nights in March and April 1978,3 special meetings were held to amend the bylaws of Local 455. The changes to be voted on included two which would benefit the business agent directly,4 i.e., his salary was to be increased and his sick leave improved. A third item would change the current practice from electing representatives to attend conventions to having the president and business agent attend. Koenig was op- posed to these changes even though it is clear that he ap- proved of the need for bylaw reform generally. To frus- trate the bylaw committee, Koenig successfully opposed the attempt to have a vote on the bylaws by raising a procedural question at the third special meeting as to the method being used, i.e., special meetings on Wednesday, when the current bylaws required votes at three regular meetings to be held consecutively on the second Thurs- day of every month. Koenig raised a point of order which was overruled by the president, Gannone, but on appeal to the membership, Koenig was sustained. This resulted in a letter being sent by the bylaw committee on 2 (C Fxh' 4 1() ' All date, hreafter are in he yeat 1975 nile'.,s thcr[ise pcified 4 A, nolted ahovc, (icorge Clark % as the hushnes. agenli at the ime May 5 to the membership attempting to explain the merits of the proposed changes and mildly castigating Koenig for his opposition. The third incident involving Koenig's battle with Local 455's hierarchy occurred in April and culminated in Koenig being brought up on charges at the May meeting by President Gannone for causing dissension and violating his obligation to be obedient and orderly at meetings. In addition, charges were also filed by a fellow member accusing Koenig of slander and causing dissen- sion. The accusations were alleged to have occurred at the April 13 regular meeting, a meeting which took place one day after Koenig was successful in thwarting passage of the bylaws changes. The charges were tabled at the May II meeting and subsequently dropped in June. The fourth and, no doubt, the foremost event that oc- curred during the critical time frame involved herein was the election of officers of Local 455, and Koenig's battle to retain his vice presidency thereafter. Nominations took place at the May 11 regular meeting and the elec- tion was held on June 3. Koenig was nominated for vice president, and along with other nominees of the "B" slate, ran against the "A" slate, which comprised the in- cumbents generally. 5 The ballot did not designate the candidates by slate, but appears to have been arranged alphabetically for each office. 6 Both Koenig and the presidential candidate on the "B" slate were elected. The only other incumbent who lost the election was Stanley Paduch, the "A" slate's candidate for the office of con- ductor. George Clark was reelected as business agent. Shortly after the election, Vincent Longo, the vice- presidential candidate on the "A" slate, filed a protest with President William Sidell of the International Union alleging that Koenig was ineligible to hold office on the ground that he was an independent contractor during the 12-month period preceding the nominations. The basis of Longo's protest was a letter written by Koenig to Clark dated August 22, 1977, which lists a series of jobs per- formed by Koenig as a contractor. Longo also relied on the fact that Koenig refused to sign a statement declaring that he was not a contractor during the critical period prior to nominations. Although Koenig admitted to Sidell that he refused to sign the statement, he contended that it was a matter of principal. As for his letter to Clark, Koenig states that it was sent at the request of Clark, and offered Sidell, as further evidence, the origi- nal letter he sent Clark on August 5, 1977, with Clark's notations on it. Despite Koenig's protestations, Sidell re- moved Koenig from the office on August 3. Koenig ap- pealed to the Department of Labor. which, after investi- gation, found Sidell's decision to be inaccurate, and by default judgment dated March 5, 1979, Local 455 was ordered to remove Longo from the office of vice presi- dent and to install Koenig to that office. With that background of Koenig's intraunion activity, we look to the events that occurred during his employ- -' Included among he icumhcnts running for recleclion were ian- none for pre.ident,. Clark for buincs, ilgcnt anrid Slanlel I'aduch ftrr con- ductorr G C Fxh IS N1 0 R 0 F ("X R ITNT R I 77s5 ment by Morlot. As stated above, Koenig had been re- ferred out of Local 455's union hall to a job with Morlot at the Merck Animal Farm site in Branlhburg, Nesw Jersey. According to the payroll records it appears that Koenig's employment commenced on June 26. The Morlot hierarchy consisted of Harry Zansberg. president. Alfred DiGrazia, field superintendent and Alvin Ander- son, foreman on the Merck job. Stanley Paduch, another carpenter employed by Morlot at the Merck site, was the union designated shop steward since the job began in March. According to Koenig's testimony shortly after he started on the job. in a conversation with Alvin Ander- son, Anderson told Koenig that on the very first day that Koenig was on the job, Paduch told Anderson that Koenig was a troublemaker and that Anderson should lay Koenig off.7 Koenig was not laid off at the time, and continued on the job until his layoff on September 29. Zansberg testified that the Merck job began on March 21 and terminated on October 3. Alvin Anderson was foreman from the start of that job until about the last week in July when he was replaced as foreman by Anskar Anderson who stayed on until the end of August, when he was replaced by Thor Slaaen. Zansberg stated that some time in August, he obtained a contract to perform work in Somerville. New Jersey, known as the Pathmark job. The payroll records show that the Pathmark job started on September 13, that Anskar An- derson was foreman as of that day, and that Edward Ingram was designated shop steward and began work at Pathmark on September 14. Zansberg stated that. in ac- cordance with the collective-bargaining agreement, he telephoned George Clark about the beginning of Septem- ber for permission to transfer carpenters from Merck to Pathmark and Clark granted it. Clark verified this con- versation and stated that under the agreement a contrac- tor has the right to transfer employees from one job to another without even stating their names to the Union; all that is required is that the Union be kept informed of the transfers.8 In fact, Zansberg did not name names when he spoke to Clark and further explained in his tes- timony the method employed by Morlot in effectuating transfers. The usual procedure used by Morlot is for the foreman on the new job to talk over with the field super- intendent, Fred DiGrazia, the manning requirements and suggest whom he would like to have on the job. Howev- er, it is up to DiGrazia to decide who will be trans- ferred. This determination is usually accomplished after DiGrazia has spoken to the foreman on the job that is being completed. In the instant case, whatever requests were made by Anskar Anderson for the Pathmark job, DiGrazia discussed with Slaaen, the foreman on the Merck job, when the transfers to Pathmark began. It is agreed by all concerned that Koenig was one of the best carpenters that Morlot employed. Zansberg tes- tified to that and both Zansberg and DiGrazia testified that on at least two occasions, while Koenig worked on the Merck job, they offered Koenig foreman's jobs and ' Neither Als in Andersltr nor Paduch 'as called l, letIlf5 Also, the esidcice established that loffs are determined b t)i( raia. and thai no firminan can effecir it a , a, off ii his )xi nl Both Zatishcrg aid Clark den ever diiscussing Koenig h 1laiL' he refused them. Slaaen testified that Koenig was a good worker and a good mechanic When the time came to man the Pathmark job, in earl)y September, Anderson conferred with Slaaen as to t hich men could be sent from Merck to Pathmark. ' Slaacn testified that Anderson's first request was for Kocher, Germuska, and Marzak, and after consulting with DiGrazia, the latter two were sent to the Pathmark site. Their last day of work at Merck was September II and they started at Pathmark on September 13. This is verified by the September 12 and 19 payroll records. Slaaen further stated that sometime in July or August, prior to the start of the Pathmn;rk job, Paduch initiated a conversation with Slaaen as to who was going to Path- mark. Slaaen told him that at least Marzak, Germuska. and Kocher would be going. At which Paduch said, "that it would not be a wise thing to send [Koenig] to Somerville because he was a troublemaker."' 0 Slaaen went on to say in his testimony that when the time came to send men to Somerville, Paduch's remark played no part in his decision to keep Koenig at Merck. As far as Slaaen was concerned, Koenig was an excellent worker and it was Slaaen's decision to keep him at Merck as long as possible. When Anderson made a second request for carpenters to be sent to Pathmark, he included Koenig among the men wanted. But. Slaaen states that he told DiGrazia that he wanted to keep Koenig at Merck, and DiGrazia abided by his wishes. Therefore, Kocher and Sakos were the next two carpenters trans- ferred to Pathmark. 12 According to DiGrazia, Slaaen advised him on Thursday, September 28, that the Merck job was finishing up and that since he had to keep Paduch on the job until the end because he was shop ste- ward, and Jensen had to be retained because he was an old employer of Morlot and had been requested pursuant to the terms of the collective-bargaining agreement, and since Pathmark did not need any more men. Koenig would have to be laid off. And so. DiGrazia went to the Merck jobsite on Friday morning, September 29, gave Koenig's final paycheck to Slaaen, and Slaaen stated, he gave the check to Koenig about noon. Slaaen further tes- tified that he told Koenig that he was sorry that he had to lay him off, and he suggested to Koenig that he go to the Pathmark site and ask Anderson if he had work for him. Koenig testified that some time prior to the start of the Pathmark job, he and the other carpenters employed at Merck were told by DiGrazia and Slaaen that there would be transfers to Pathmark, and that Slaaen told Koenig and Kocher that they would be the first two to I The paroll records show that filr the week ending September t2, in addition lo Slaaen. the fireman and 'Paduch the shop stemward, Mlrlot employed six carpenters namely, Robert Germuska. John Marak, Roberl Kocher. Wiilliam Koenig. Edward Sakos, and Richard Jensen on the Merck job There is no listing for the Pathmark job on that payroll ,heel "' According 1o Slaaen, P'aduch said there ;as trouble in the union. anld tlia Kroenig as the troublemaker ' It fact, Slaaen teslified that he nexer mentllnled 'lPaduch' rrord, to a;irlon. excepr prhap to Koeclig himneif : 1]he palsroll recordi fr the Wctk clltl g ()ctobeh r 3 hoo, that Kocher .nd Skol s rkcd their Il da 11 I Mterck on Septembehr 2 and tirrel i Palihritlk lln Seplerihcr 2') MCtRI Ot CARI'F+NTRY, INC 775 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD go to Pathmark. When Koenig learned that Marzak and Germuska were to be transferred, he asked DiGrazia if the political situation in Local 455 had anything to do with why he was not transferred. DiGrazia told him that it was not the political situation, but that Slaaen did not want to give him up. Koenig's version of the September 29 exit interview with Slaaen is more detailed than Slaaen's and it forms the basis for Koenig's charges. According to Koenig, Slaaen told him, "I have to lay you off. I told them I wanted no part of this, that they should come down here and do their own dirty work, that this is what's wrong with the union." When Koenig prodded Slaaen for more information, Slaaen said, "It wasn't Stanley (Paduch)." He said, according to Koenig, that George Clark got to Zansberg and told him that if Koenig is not laid off at Merck, there was going to be labor trouble at Path- mark. ' 4 Koenig further testified that at 1:30 p.m., on Septem- ber 29, he met with Anskar Anderson at the Pathmark jobsite, and that Anderson told him that he had asked for him but that they would not transfer him to the Path- mark job. 15 On the following Monday, October 2, Koenig report- ed to the union hall. Clark was out-of-town, and the as- sistant business agent, Andrew Allena, Koenig's political ally, was in charge. He advised Koenig that there were no jobs available in the Union's jurisdiction for about a month, and Koenig accepted a job outside the terri- tory. 16 The payroll records for Pathmark show that Jensen and Paduch started working there on Wednesday, October 4. The Pathmark job concluded in November and Morlot has not had any other job in Local 455's ju- risdiction since then. Conclusions As noted above, the chief issue raised by the complaint and alleged by the General Counsel is whether Morlot was compelled by Local 455, under threat of labor trou- ble at its Pathmark jobsite, to refuse to transfer Koenig to that jobsite and to lay him off from the Merck job- sites. A thorough analysis of the evidence presented brings me to the conclusion that it fails to sustain the allegation. Except for Paduch's remark to Slaaen, which I find must have taken place in late August,' 7 the evidence present- ed by General Counsel is full of conjecture, surmise, and innuendo. In the first instance, let us examine the scenar- io and determine who is the alleged culprit. There can be : Slaaen, while admitting that he may have told Koenig that he would he transferred to Pathmark, qualified it by adding, "if there was an opening thete." " Slaaenl denies categorically that he had spoken to Zansberg and Di- Grazia about this, or that he had made such a statement to Koenig. Zans- berg. DiGrazia, and Clark all denied that such a conversation about Koenig ever took place " Anskar Anderson was not called to testify by any of the parties to this proceeding "' Koenig testified that since September 29. he has worked within Local 4 55's jurisdiction on several jobs. having been referred to the jobs by the union hall. 't Zansberg credibly testified that Morlot was not awarded the Path- mark job until some time in August. no doubt that General Counsel is pointing the finger at Clark, for Clark holds the key position in Local 455, and it was his alleged threat of labor trouble that is at issue. It cannot be Paduch, the shop steward at the Merck job. General Counsel offers two bits of evidence in which Paduch calls Koenig a troublemaker. Initially, Paduch al- legedly attempts to get Koenig laid off shortly after Koenig goes to work for Morlot. By Koenig's own ad- mission, it does not succeed. It would appear that Pa- duch's remark, if made,' 8 was merely a suggestion that carried no weight, or a demand that went unheeded be- cause Morlot could care less about Paduch's feelings for Koenig. As for the second incident in which Paduch told Slaaen that Koenig was a troublemaker and should not be transferred to the Pathmark job, I credit Slaaen com- pletely when he testified that such remark had no bear- ing on his decision as to what to do with Koenig. I found Slaaen to be a sincere and truthful witness, anxious to explain his actions in this affair. He emphasized the importance of doing his job properly without getting in- volved in union matters. On several occasions, he stated how good a carpenter Koenig was, how he was anxious to keep him on the Merck job to the end, and how he disliked having to lay Koenig off. His truthfulness came through completely when, in response to a question by Morlot's attorney as to whether Slaaen ever recommend- ed that Koenig be hired as a foremen by Morlot, the re- sponse which was anticipated to be "yes," in light of Slaaen's praise of Koenig's work, was "No." In addition, there is not one shred of evidence linking Paduch's re- marks with Clark. The General Counsel's introduction of evidence regarding the necessity of Morlot informing Local 455 and its shop steward of transfers from one job to another does not add any weight to his case. It ap- pears that the purpose of the procedure is to aid the union in maintaining its books properly, that it is a rou- tine procedure, and no evidence was presented by the General Counsel to show that any request for a transfer was ever refused. Under the circumstances, I find that the General Counsel has failed to sustain the burden of proof necessary to support his allegation in paragraph 17 of the complaint insofar as it relates to Stanley Paduch, an agent of Local 455. Turning now to George Clark, there is no concrete evidence that can be attributed to Clark which would in- dicate that he had anything at all to do with Koenig's layoff or Morlot's failure to transfer Koenig to the Path- mark jobsite. The basis for Koenig's charge lies solely in an alleged conversation that Koenig had with Slaaen on the day Koenig was laid off. Yet, that portion of the conversation which dealt with the allegation herein was denied by no less than four individuals,' 9 and Koenig himself, on cross-examination, was not too sure whether Slaaen told him that he, Slaaen, heard it from Zansberg or from someone in the office. Koenig would have me 'I Koenig's testimony about the inciden! is uncorroborated Alvin An- derson, who is alleged to have told Koenig about Paduch's statement was not called as a witness, despite the fact that he no longer works for Morlot, and as late as March 1979, was still a friend of Koenig's. "' Slaaen, whom I found to be entirely credible. Zalshberg DiGrazia. and Clark were the four individuals MORLOT CARPENTRY. INC 777 believe that the alleged actions of Clark were a result of a power struggle within the Union between Koenig and Clark. While there can be no doubt but that Koenig was an annoyance to Clark because of his intraunion activity, described fully above, there is not one iota of evidence, not even in Koenig's testimony, that Clark ever threat- ened Koenig with reprisal because Koenig was antago- nistic to Clark in union affairs. We should at least have a more substantial basis on which to resolve the elements on which the General Counsel builds his case for the violation here claimed. Under the circumstances, I do not credit Koenig's testimony regarding his conversation with Slaaen on September 29. In sum, I find that General Counsel has failed to sus- tain the burden of proof necessary to establish the allega- tions of the complaint, and it is virtually impossible to conclude from the evidence presented that Koenig's layoff and failure to be transferred was the result of any- thing other than the lack of work available on September 29 on Morlot's projects. Upon the basis of the foregoing findings and conclu- sions, I hereby issue the following recommended: ORDER 20 The complaint and charges in this matter are hereby dismissed in their entirety on the basis that the allega- tions of the complaint have not been proven. :" In the event no exceptions are filed as proided by Sec 102 4 of the Rules and Regulations of the National Labor Relations Board. the findings, conclusions, and the recommended Order herein shall, as pro- vided in Sec. 102 48 of the Rules and Regulations. be adopted b the Board and become its findings, conclusions, and Order, and all objections, thereto shall be deemed saired for all purposes _