Kelly & Picerne, Inc.

KELLY & PICERNE, INC. 543 Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. United Mine Workers of America and Southern Labor Union are labor or- ganizations within the meaning of Section 2(5) of the Act. 2. By contributing support to Southern Labor Union the Respondents have en- gaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(2) of the Act. 3. By interfering with, restraining, and coercing employees and prospective em- ployees in the exercise of rights guaranteed by Section 7 of- the Act the Respond- ents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a)( 1 ) of the Act. 4. The aforesaid unfair labor practices are unfair - labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Kelly & Picerne, Inc. and Providence, Pawtucket and Central Falls Carpenters' District Council a/w United Brotherhood of Carpenters and Joiners of America. Case No. 1-CA-3169. May 15, 1961 DECISION AND ORDER On December 23, 1960, Trial Examiner Max M. Goldman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Re- spondent filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Leedom and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds no prejudicial error was committed. - The rulings are hereby affirmed. The Board has considered the entire record in this case, including the Intermediate Report, the exceptions and the brief, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations except as herein modified.' ' The Trial Examiner found that the Respondent refused to bargain with the Union on March 21 , the date of the first contact made by the Union with Respondent. We do not agree that this was the time the refusal to bargain occurred as, on March 21 , the Union merely requested a meeting with Respondent, and the meeting was arranged. We find, however, that on March 24, the date of the first meeting between Respondent and the Union, and thereafter , for the reasons set forth in the Intermediate Report and found by the Trial Examiner, the Respondent refused to bargain in violation of Section 8(a) (5) of the Act, as amended. 131 NLRB No. 79. 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Upon the entire record in this case and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Kelly & Picerne, Inc., Cranston, Rhode Island, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Interrogating its employees concerning their own or their fellow employees' union interests or affiliation in a manner constituting interference, restraint, or coercion in violation of Section 8 (a) (1) of the Act, as amended. (b) Refusing to bargain collectively with Providence, Pawtucket, and Central Falls Carpenters' District Council affiliated with United Brotherhood of Carpenters and Joiners of America, as the exclusive representative of all its carpenters, excluding all other employees, office clerical employees, professional employees, guards, and super- visors as defined in the Act, with respect to rates of pay, wages, hours of employment, and other conditions of employment. (c) Discouraging membership in the above-named labor organiza- tion, or any other labor organization of its employees, by discrimi- nating in regard to their hire or tenure of employment or any term or condition of employment. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to join, form, or assist labor organizations, including the above-named labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the pur- pose of collective bargaining or other mutual aid or protection or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with the above-named labor organization, as the exclusive representative of the employees in the aforesaid unit, and, if an understanding is reached, embody such un- derstanding in a signed agreement. (b) Resume its rough carpentry operations and offer to the employ- ees named in the Appendix reinstatement to their former or substan- tially equivalent positions without prejudice to their seniority or other rights and privileges previously enjoyed and make them whole in the KELLY & PICERNE, INC. 545 manner set forth in the section of the Intermediate Report entitled, `.`Remedy." (c) Preserve and, upon request, make available to the Board or its agents for examination and copying, all payroll records and reports, social-security payment records, timecards, personnel records and re- ports, and all other records necessary to analyze the amount of back- pay and other benefits due and the rights of employment under the terms of this Order. (d) Post at its offices at Cranston, Rhode Island, and at its jobsites, copies of the notice attached to the Intermediate Report marked "Appendix." 2 Copies of such notice, to be furnished by the Regional Director for the First Region, shall, after being signed by an author- ized representative of the Respondent, be posted immediately upon the receipt thereof and be maintained by it for a period of 60 con- secutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced, or covered by any other material. (e) Notify the said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply therewith. 'The notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner" the words "A Decision and Order." In the event that this Order is enforced by a decree of a United States Court of Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding against Kelly & Picerne, Inc., herein also called the Respondent or the Company, involves 8 (a)(1), (3), and (5) allegations and was initiated by Providence, Pawtucket and Central Falls Carpenters' District Council affiliated with United Brotherhood of Carpenters and Joiners of America , herein also called the Charging Party or the Union . The hearing was held on June 27 and 28, 1960, at Providence, Rhode Island. The General Counsel presented oral argument at the close of the hearing and the Respondent filed a brief. Upon the entire record in the case, and his observation of the witnesses , the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, a Rhode Island corporation, with its principal office and place of business at Cranston, Rhode Island, is engaged in the construction and sale of residential homes, buildings , and other related products. During a recent annual period the Respondent in the course of its operations purchased goods and materials valued in excess of $200,000, of which, goods and materials valued in excess of $50,000 were transported to the Respondent's various jobsites and principal place of business from,, and received from, , other ,enterprises located in the State of Rhode Island, which other enterprises had received the said goods and materials directly from States other than the State . of Rhode Island. It is found that the Respondent is engaged in commerce within the meaning of the Act., 599198-62-vol. 131-36 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED Providence, Pawtucket and Central Falls Carpenters' District Council affiliated with United Brotherhood of Carpenters and Joiners of America, is a labor organiza- tion within the meaning of the Act. M. THE UNFAIR LABOR PRACTICES A. The issues The issues presented are whether the Company ( 1) beginning March 19, 1960, engaged in specified acts and conduct in violation of Section 8(a)(1); beginning March 21, discriminated against 12 named employees in violation of Section 8(a)(3); 1 and beginning March 21, refused to bargain in violation of 8(a)(5) of the Act. B. The events After some expressions of discontent among the Company's employees at their own Christmas party in 1959, Anthony Sepe, a carpenter of some years standing with the Company, consulted with the Union. Thereafter Sepe discussed the matter with other carpenters and he and some of the men had a discussion with the Union as to the possible benefits of joining. A meeting was held at the Union's hall on March 17. Many of the Company's employees were present and signed authorization cards. By the following day, Friday, March 18, 16 of the Company's 24 carpenters had signed authorization cards on behalf of the Union. On Saturday afternoon, March 19, the Company's general supervisor who hires and discharges construction employees, Anthony Ferry, telephoned Sepe at home. In this conversation Ferry asked Sepe about the men having signed union cards. Sepe disclaimed any knowledge about the men having signed cards, but did state that they had had a meeting at the union hall. At Ferry's invitation Sepe appeared at Ferry's house at about 4:30 later that day. Ferry asked Sepe if he knew any- thing about the union cards and Sepe again disclaimed any knowledge of the cards. Ferry also asked Sepe if it would do any good for Ferry to call some of the other men to see if some kind of agreement or settlement could be reached so that things could be worked out. Nothing was said about a pending layoff or not reporting for work on Monday morning, March 21. When Sepe left Ferry's home Ferry stated that he was going to call some of the other men to see why they had joined the Union. The same day, Ferry also telephoned employee Charles Lovegreen. Ferry inquired of Lovegreen as to whether he had signed a union card, whether others had signed cards and what were Lovegreen's complaints. Nothing was said about a pending layoff. On the following Monday morning, March 21, company officials announced to the carpenters named in footnote 1, among others, that they were laid off because the Company was changing its method of doing the work. The men reported their layoff to the Union on the day of the event, March 21, and that day the Union's business agent, Jerome Kearney, telephoned the Company. Kearney first met with Romeo Picerne, vice president and general manager of the Company on March 24. Kearney then presented Romeo Picerne with a proposed contract containing a recognition clause, among other things. A discussion was had concerning the terms of the document. Kearney requested recognition and Romeo Picerne stated that he was not at that time prepared to recognize the Union. The parties met again at the end of March and in early April. During this period contract terms such as wages and subcontracting were discussed. The Company did not question the Union's majority status and took the position that it would recognize the Union if they could reach an agreement as to the substantive terms of the contract. No agreement was, however, reached as to the substantive terms of a contract. The final exchange between the parties occurred on April 6, when the Company expressed the position that if an agreement could be reached as to the terms of a contract it would recognize the Union, otherwise the Company wanted an election. The Union pointed out that it had the authorization cards and that an election was not necessary. 1 The individuals involved are : Thomas Glarmello Albert Longo Mario Santucci Anthony De Rita Ralph Miale Robert Sormanti Charles Lovegreen Jack Pate Anthony Sepe Raymond Lord Ernest Rossi Clifford Tauvain KELLY & PICERNE, INC. 547 C. The conclusions- 1. The appropriate unit; and the majority It is found that all the Company's carpenters excluding all other employees, office clerical employees, professional employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. It is further found, as the Union by March 18, 1960, represented 16 of the Company's 24 carpenters by virtue of the authorization cards then executed, that beginning that date and at all material times thereafter, the Union was the representative of the Respondent's employees in the above-described unit within the meaning of Section 9(a) of the Acts 2. Interference, restraint, and coercion; the discrimination; and the refusal to bargain The Company explained at the hearing that the layoff of March 21, which is alleged to be discriminatory, was brought about by its decision to subcontract rough carpentry work for economic reasons. According to Romeo Picerne, vice president and general manager, the subject of subcontracting carpentry work had been under consideration for about 2 years, and he and his brother John Picerne, who is treasurer and is in charge of the building operations, had discussed the matter the last few winters as the cost problem became evident during that part of the year. The problem of varying labor costs by seasons with the high cost showing in the winter season had not been however a pressing problem in the last few years. Although during this period concrete, roofing, landscaping, and some painting work had been subcontracted, the car- pentry work had not been subcontracted. After the Company's accountant had reported on costs in early March, further, according to Romeo Picerne, he, his brother John, and their father met with the accountant on March 14. The ac- countant reported, according to Romeo Picerne, that the labor costs on the houses built during the past winter had exceeded the estimates, and it was decided at this meeting as their only salvation in the homebuilding business to subcontract the carpentry work as soon as possible since it was the only variable cost of a sizable nature which had not been subcontracted .3 According to Romeo Picerne subcon- tracting was not necessarily less expensive but it would provide the advantage of a nonvariable cost. Romeo Picerne also testified that labor costs during the last winter had not been as bad as the prior two winters as they had a mild winter and kept a full crew working. He also testified that some subcontracting might cost more in the summer than in the winter. John Picerne testified that it was less expensive to subcontract the carpentry work than to have it done by the Company's own men. Documentary evidence was not adduced by the Company to support this testimony.4 Further, according to John Picerne, during the week that followed the April 14 meeting, he advised with un- named others in the homebuilding field and a banker as to the feasibility of sub- contracting the carpentry work, and on March 25 he first contacted a prospective subcontractor and was given a contract price. The complement of carpenters laid off on March 21 was such that the Company did not have employees then to complete the rough carpentry still in progress. Begin- ning about 2 weeks after the layoff, the Company recalled some of the men it had laid off to do finish carpentry work and the noncompleted rough carpentry work which the subcontractors refused to do. In about May 1960, about 2 months after the layoff, the Company granted a wage increase to its employees, including the car- penters, amounting to about 7 or 8 percent because business conditions were fairly good. Concerning Romeo Picerne's testimony, it would appear therefrom that the last winter was relatively favorable compared to past winters when the cost problem had not been considered pressing, that subcontracting costs could be seasonal and would not necessarily provide the advantage of a nonvariable cost, and that in the face of the expectancy of declining labor costs due to the then improving weather condi- tions, the Company decided on March 14 to subcontract the carpentry work. Con- 2 See Franks Bros., 321 U.S. 702. 8 Within a few days after this meeting it was decided, according to the Company, to sub- contract the rough carpentry work and retain the finish carpentry work. 4 See Supreme Bedding and Furniture Manufacturing Company, Inc., 93 NLRB 1616; Interstate Circuit, Inc. v. U.S, 306 U.S. 208; and Sam Wallick et ai. d/b/a Wallick and Schwalm Company, at al., 198 F 2d 477 (C.A. 3). 548 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD cerning John Picerne 's testimony, it would 'appear therefrom that the decision to subcontract the carpentry work was made on March 14 , before he had made in- quiries as to the feasibility of such a procedure , and before by more than a week he had got a contract price from a prospective subcontractor-the essential fact without which ' a computation could not be made to determine whether it would be less expensive to subcontract. Furthermore, according to the Company's testimony on Saturday, March 19, the Picerne brothers met with Ferry, general supervisor, who in accordance with prior instructions submitted a list of carpenters to be laid off the following Monday, March 21. This meeting ended by 1 p.m. on Saturday. If a decision as to when and which carpenters to lay off for economic reasons was then a fait accompli it is difficult to perceive why Ferry made efforts that afternoon by telephone and otherwise to dis- suade employees from the Union by inquiries as to whether employees had signed union cards, why they had joined the Union, and whether a settlement could be worked out. It is accordingly found that the Company did not lay off employees on March 21 for economic reasons, but that the decision to subcontract rough carpentry work was made for discriminatory reasons and in violation of Section 8(a) (3) and (1) of the Act, as shown especially by Ferry's knowledge of the union activities on March 19, his conduct in attempting to dissuade the employees from the Union , and the haste with which the Company thereafter proceeded in executing the layoff of March 21, not contacting a prospective subcontractor until several days thereafter and leav- ing houses in a noncompleted rough stage. It is found by Ferry's inquiries of Sepe as to whether his fellow employees had signed union cards and of Lovegreen as to whether he or his fellow employees had signed union cards on March 19, 1960 , that the Respondent violated Section 8(a),(1) of the Act. It is also found that the Respondent 's insistence upon an agreement as to the substantive terms of a contract as a condition to recognizing the Union, together with its violations of Section 8(a) (1) and (3), as found above, disclose an intent not to bargain in good faith at any time. It is accordingly found that beginning March 21, when the Union first contacted the Company, the Respondent violated Section 8 (a) (5) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III , above, occurring in con- nection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation 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. V. THE REMEDY It having been found that the Respondent engaged in unfair labor practices in violation of Section 8(a)'(1), (3 ), and (5) of the Act, it will be recommended that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Thus, having. found that the Respondent interfered with , restrained, and coerced its employees by interrogating them, as described above in the section entitled, "The conclusions," the Trial Examiner will recommend that the Respondent cease and desist from this conduct. Having found that the Respondent refused to bargain in violation of the Act, it will be recommended that upon request, the Respondent bargain collectively with the Union and if an understanding is reached , such understanding be embodied in a signed agreement. As it has been found that the Respondent discontinued its rough carpentry work with its own employees and laid off certain of its carpenters , in violation of Section 8 (a) (3) and ( 1) of the Act, it will be recommended, in accordance with the Board's policy,5 that the Respondent resume its rough carpentry operations with its own employees, and offer all the employees listed in the Appendix who were discriminated against, immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges . See, The Chase National Bank of the City of New York, San Juan, Puerto Rico Branch, 65 NLRB 827. It will be further recommended that the Respondent make the afore- said employees whole for any loss of pay suffered by reason of the discrimination against them. Loss of pay shall be based upon earnings which they normally would 5 Herman Nelson Division, American Air Filter Company, Inc, 127 NLRB 939; and Jays Foods, Inc., 129 NLRB 690. KELLY & PICERNE, INC. 549 have earned from the date of the discrimination against them, March 21, 1960, to the date or dates of reinstatement, less net earnings, computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289; N.L.R.B. v. Seven-Up Company of Miami, Inc., 344 U.S. 344. It will also be recom- mended that the Respondent preserve and, upon request, make available to the Board payroll and other records to facilitate the computation of the backpay due. As the unfair labor practices committed by the Respondent are of a character striking at the root of employee rights safeguarded by the Act, it will be recommended that the Respondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Providence, Pawtucket and Central Falls Carpenters' District Council affiliated with United Brotherhood of Carpenters and Joiners of America, is a labor organiza- tion within the meaning of the Act. 2. By discriminating in regard to the hire and tenure of employment as to the employees named in the Appendix, thereby discouraging membership in the Union, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a),(3) of the Act. 3. By refusing to bargain collectively with the Union as the exclusive representative of its employees in the appropriate unit set forth in the section entitled, "The con- clusions," beginning March 21, 1960, the Respondent has engaged in and-is engaging in unfair labor practices within the meaning of Section 8(a).(5) of the Act. 4. By engaging in the interrogation as described above in the section entitled, "The conclusions," and by engaging in discrimination and refusing to bargain, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the Labor Management Relations Act, we hereby notify our employees that: WE WILL NOT discourage membership in Providence, Pawtucket and Central Falls Carpenters' District Council affiliated with United Brotherhood of•Car- penters and Joiners of America, or any other labor organization, by discrimi- nating in regard to the hire or tenure of employment or any term or condition of employment of our employees. WE WILL NOT interrogate our employees concerning their own or their fellow employees' union interest or affiliation in a manner constituting inter- ference, restrain or coercion. WE WILL, upon request, bargain with Providence, Pawtucket and Central Falls Carpenters' District Council affiliated with United Brotherhood of Car- penters and Joiners of America, as the exclusive representative of all our employees in the appropriate unit with respect to rates of pay, wages, hours of employment, and all other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The appropriate unit is: All our carpenters, excluding all other employees, office clerical employees, professional employees, guards, and supervisors as defined in the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named labor organization, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be affected 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by an agreement requiring membership in a labor organization as authorized in Section 8(a)(3) of the Act. WE WILL resume our rough carpentry operations and offer the employees named below immediate and full reinstatement to their former or substan- tially equivalent positions as carpenters without prejudice to their seniority or other rights and privileges previously enjoyed and make them whole for any loss of pay suffered as a result of our discrimination against them. Thomas Giarmello Jack Pate Anthony De Rita Ernest Rossi Charles Lovegreen Mario Santucci Raymond Lord Robert Sormanti Albert Longo Anthony Sepe Ralph Miale Clifford Tauvain All our employees are free to become, remain, or refrain from becoming or remaining, members of any labor organization , except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act. KELLY & PICERNE, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Northern Nevada Chapter, National Electrical Contractors Asso- ciation and Represented Employers and International Brother- hood of Electrical Workers, Local 401, AFL-CIO, Petitioner. Case No. 20-RC-4312. May 15, 1961 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Daid W. Leahy, hearing offi- cer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Leedom, and Fanning]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain em- ployees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act. 4. The Petitioner seeks a Board certification in a multiemployer unit represented by the Northern Nevada Chapter of the National Electri- cal Contractors Association, herein called NECA. Included within the unit petitioned for are employees currently represented in the 131 NLRB No. 74.