Prote Contracting Corp.

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.