E.G. Clemente Contracting Corp.

606 315 NLRB No. 76 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an admin- istrative law judge’s credibility resolutions unless the clear prepon- derance of all the relevant evidence convinces us that they are incor- rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. We adopt the judge’s finding (to which there are no exceptions) that Charging Party Eric Forbes began his employment with the Re- spondent in 1990, subsequent to the Respondent’s entering into the 1990–1993 collective-bargaining agreement. In so doing, we find it unnecessary to pass on the rest of the judge’s discussion in the fifth paragraph of his findings of fact. E. G. Clemente Contracting Corp. and Eric Forbes. Case 29–CA–17207 November 16, 1994 DECISION AND ORDER BY MEMBERS DEVANEY, BROWNING, AND COHEN On June 20, 1994, Administrative Law Judge How- ard Edelman issued the attached decision. The Re- spondent filed exceptions and a supporting brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and brief and has de- cided to affirm the judge’s rulings, findings,1 and con- clusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge and orders that the Respondent, E. G. Clemente Contract- ing Corp., Staten Island, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order. Emily Do Sa, Esq., for the General Counsel. Michael Salgo, Esq., for the Respondent. DECISION STATEMENT OF THE CASE HOWARD EDELMAN, Administrative Law Judge. This case was tried before me on January 11, 1994, in Brooklyn, New York. On March 9, 1993, Eric Forbes, an individual, filed a charge against E. G. Clemente Contracting Corp. (Respond- ent), alleging that he was discharged because of his member- ship in, and activities on behalf of, Building, Concrete, Exca- vating & Common Laborers’ Union, Local No. 731 of Great- er New York and Vicinity, Laborers’ International Union of North America, AFL–CIO (the Union). On April 23, 1994, a complaint issued alleging the discriminatory discharge set forth in the charge filed above. Briefs were submitted by counsel for the General Counsel and counsel for Respondent. Based on my consideration of the briefs, the entire record, and the demeanor of the wit- nesses, I make the following FINDINGS OF FACT Respondent is a New York corporation with its office and place of business located in Staten Island, New York. Re- spondent is engaged in the repair and restoration of water mains. Respondent annually performs the services described above, for in excess of $50,000 for various entities located in the State of New York, which enterprises are directly en- gaged in interstate commerce and meet at least one Board standard for the assertion of jurisdiction, exclusive of indirect inflow or indirect inflow. Respondent admits and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. It is admitted and I find that the Union is a labor organiza- tion within the meaning of Section 2(5) of the Act. It is also admitted and I find that since 1990, the Union has been the collective-bargaining representative of Respond- ent’s employees, and has since 1990 been a party to a collec- tive-bargaining agreement with the Union. Forbes began his employment with Respondent sometime in 1990, probably after Respondent entered into its collec- tive-bargaining agreement with the Union. This is probably true because Forbes was kept out of the Union by Respond- ent, although he asked Respondent at various times up to 1992 to notify the Union of his employ and make him a member, Respondent did not do so. Sometime in June or July 1992, Forbes contacted the Union and notified it of his employment. Forbes became a member of the Union at this time and Respondent was re- quired to make back payments to the various funds set forth in the parties’ collective-bargaining agreement, which amounted to over $20,000. Respondent’s owner, Emil Gary Clemente, subsequently informed Forbes that he was dis- pleased by Forbes’ action. Emil Gary Clemente did not tes- tify in this trial. Thus, Forbes’, who I found to be a credible witness, testimony is unrebutted and credited. On the morning of January 5, it was raining very hard. Forbes, who had worked on a particular jobsite located on Amboy Road, Staten Island, on January 4, reported to the same jobsite on January 5 at about 7:30 a.m. He observed workers who had been working on other jobsites on January 4 presently working on his jobsite. Jeffery Clemente, an ad- mitted supervisor within the meaning of the Act was in charge of the Amboy road crew, told Forbes that he would not be allowed to work today, because of the difficult condi- tions which required his most experienced workers. An argu- ment between Forbes and Clemente ensued over the right of Forbes to work the Amboy jobsite. At some point during this argument Forbes told Clemente that he was going to com- plain to the Union, and following this statement, Clemente told Forbes that he was discharged. Such testimony is con- sistent with Forbes’ direct testimony and with admissions of Clemente during cross-examination and in his Board affida- vit. Clemente testified in his direct testimony that he merely told Forbes to go home for the day and come back the next day. However, such testimony is contradicted by his admis- sion during cross-examination and his Board affidavit, de- scribed above. Therefore, I do not credit his direct testimony. 607 E. G. CLEMENTE CONTRACTING CORP. 1 If no exceptions are filed as proided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and rec- ommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. Following his discharge by Clemente, Forbes called Re- spondent’s office to notify it of his discharge. Forbes first spoke with Michael Coppotelli, who I find to be a supervisor within the meaning of the Act, in view of his admission that he has authority to responsibly recommend hiring and firing of employees. Forbes informed Coppotelli of his discharge and of the facts which led to it. Coppotelli told Forbes that ‘‘just wait a day to cool off, then come back to work,’’ ‘‘if you speak to Jeff [Clemente] I’m sure that he would hire you.’’ Several days later, Forbes returned to Respondent’s office, presumably to pick up his pay and spoke with Vincent Timponelli, Respondent plant manager and an admitted su- pervisor within the meaning of the Act. Forbes told Timponelli what had happened and Timponelli told Forbes ‘‘that all he would have to do was go to the job, see the su- pervisor [Jeffrey Clemente] and I’m sure he [Forbes] could get the job back again.’’ Timponelli then testified that all employees who were terminated for arguments on the job had been ultimately reinstated. I regard such testimony as gratuitous and not believable. In any event there is no evi- dence that Respondent ever offered such reinstatement to Forbes. Conclusions It is alleged that Respondent terminated Forbes because he threatened to file a grievance concerning Respondent’s re- fusal to let him work the Amboy jobsite on January 5, 1993. In determining whether an employer terminates an em- ployee in violation of Section 8(a)(1) and (3), General Coun- sel has the burden of establishing that Forbes’ union activi- ties were a motivating factor in such discharge. Once such factor is established, the burden shifts to Respondent to es- tablish that the same action would have taken place notwith- standing such union activity. Wright Line, 251 NLRB 1083 (1980), enfg. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982); NLRB v. Transportation Management Corp., 462 U.S. 393, 398 (1983). It is clear that Respondent had prior union animus toward Forbes in view of his 1992 complaint to the Union concern- ing his nonmembership. Such complaint cost Respondent $20,000 in back payments to the Union’s funds plus future payments on behalf of Forbes. Respondent owner Emil Clemente expressed his displeasure with Forbes’ action per- sonally to Forbes. I conclude that such statement in response Forbes’ filing what must be considered a grievance concern- ing his nonmembership in the Union is clear evidence of union amimus. Kuhlman, Inc. 305 NLRB 481, 483 (1991). It is also clear that discharging an employee because he threatens to file a grievance with the Union is a violation of Section 8(a)(1) and (3). NLRB v. City Disposal Systems, 465 U.S. 822 (1984). In the instant case, Jeff Clemente effec- tively admitted that is exactly why he terminated Forbes. Thus, Respondent failed to establish that such action would have taken place notwithstanding Forbes’ union activity. Ac- cordingly, I find Respondent discharged Forbes in violation of Section 8(a)(1) and (3). Respondent has also failed to establish that it effectively conveyed an unconditional offer of reinstatement to Forbes. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Sec- tion 2(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 and thereafter refusing to reinstate its employee, Forbes, Respondent violated Section 8(a)(1) and (3) of the Act. 4. The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that Respondent engaged in an unfair labor practice, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action to effec- tuate the policies of the Act. I recommend that Respondent be required to offer uncon- ditionally to Forbes full reinstatement to his prior job and, if such job no longer exists, to a substantially equivalent job, without prejudice to his seniority or any other rights or privi- leges previously enjoyed, and to make Forbes whole for any loss of earnings or other benefits suffered as a result such unlawful discharge with interest as computed in New Hori- zons for the Retarded, 283 NLRB 1173 (1987), less taxes which should be withheld. Provisions should also be made for the position of an ap- propriate notice to employees. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended1 ORDER The Respondent, E. G. Clemente Contracting Corp., Staten Island, New York, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Discharging its employees because of their union ac- tivities on behalf of Building, Concrete, Excavating and Common Laborers’ Union, Local No. 731 of Greater New York and Vicinity, Laborers’ International Union of North America, AFL–CIO or for engaging in other concerted ac- tivities protected by the Act. (b) In any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of the rights guar- anteed them in Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act. (a) Offer to Eric Forbes immediate and full reinstatement to his former job or, if such job no longer exists, to some substantially equivalent position, without predjuice to his se- niority, or other rights or privileges previously enjoyed. (b) Make Forbes whole for any loss of earnings and other benefits suffered as a result of his unlawful discharge with interest in the manner set forth in the remedy provision of this decision. (c) Expunge from its records any reference to the unlawful discharge of Forbes and provide written notice to him that 608 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 If 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.’’ this has been done and that the discharge will not be used against him in any way. (d) Preserve and, on request, make available to the Board or its agents for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at its place of business in Staten Island, New York, copies of the attached notice marked ‘‘Appendix.’’2 Copies of the notice, on forms provided by the Regional Di- rector for Region 29, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent immediately on receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge employees because of their union activities on behalf of Building, Concrete, Excavating & Common Laborers’ Union, Local No. 731 of Greater New York and Vicinity, Laborers’ International Union of North America, AFL–CIO or any other labor organization or be- cause they engage in protected, concerted activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaran- teed you by Section 7 of the Act. WE WILL offer Eric Forbes immediate and rull reinstate- ment to his former job or, if such job no longer exists, to a substantially equivalent position without prejudice to his seniority or any other rights or privileges previously enjoyed. WE WILL make the above-named employee whole for any loss of earnings and other benefits suffered as a result of his unlawful discharge, with interest. WE WILL notify the above-named employee in writing that we have expunged from our records any reference to his un- lawful discharge and that the discharge will not be used against him in any way. E. G. CLEMENTE CONTRACTING CORP.