Schlavone Constuction Co.

SCHIAVONE CONSTRUCTION CO. Schiavone Construction Company and Local 37, Bricklayers and Allied Craftsmen, AFL-CIO. Case 22-CA-6987 May 9, 1977 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND WALTHER On January 12, 1977, Administrative Law Judge Ralph Winkler issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions2 of the Administrative Law Judge3 and to adopt his recommended Order, as modified herein.4 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge as modified below and hereby orders that the Respon- dent, Schiavone Construction Company, Parsippany, New Jersey, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph l(b): "(b) In any other manner interfering with, restrain- ing, or coercing its employees in exercising their rights under Section 7 of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. The Respondent 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 credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 In the absence of exceptions thereto, Member Walther adopts the Administrative Law Judge's finding that the instant proceeding is not appropriate for deferral to arbitration. 3 Although the issue of deferral to arbitration is not before us. absent exceptions to the Administrative Law Judge's finding in this regard, Members Jenkins and Murphy would not have deferred the instant dispute in any event. See Member Jenkins' dissent in Collyer Insulated Wire, A Gulf and Western Systems Co., 192 NLRB 837 (1971), and its progeny, and Member Murphy's concurring opinion in General American Transportation Corporation, 228 NLRB 808 (1977). 4 As the Administrative Law Judge found that Respondent violated Sec. 8(a)(3) and (1) of the Act by discharging employee Andrew Koleszar, we 229 NLRB No. 85 shall issue the broad cease-and-desist order appropriate in such circum- stances. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge or discriminate in any other manner against shop stewards of Bricklay- ers Local 37 for protesting in regard to Local 37's work assignments or for otherwise seeing-in accordance with our agreements with Local 37- that the terms and conditions of the agreements are carried out. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in exercis- ing their rights under the National Labor Rela- tions Act, as amended. WE WILL offer Andrew Koleszar reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without preju- dice to his seniority or other rights and privileges, and WE WILL make him whole for any loss of earnings suffered as a result of the discrimination against him. SCHIAVONE CONSTRUCTION COMPANY DECISION STATEMENT OF THE CASE RALPH WINKLER, Administrative Law Judge: Upon charges filed by Local 37, a complaint issued by the General Counsel, and an answer filed by Respondent, a hearing was held on October 6, 1976, in Newark, New Jersey. Upon the entire record in the case, including my observation of the demeanor of witnesses and upon consideration of briefs, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is a New Jersey corporation engaged as a contractor in the building and construction industry in New Jersey. I find, as the parties agree, that Respondent is an employer within Section 2(6) and (7) of the Act. 1. THE LABOR ORGANIZATION INVOLVED Local 37, Bricklayers and Allied Craftsmen, AFL-CIO, is a labor organization within Section 2(5) of the Act. 515 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES This case concerns the discharge of Andrew Koleszar at Respondent's construction site in Parsippany, New Jersey. This was a "union" job, and among the participating unions were Laborers Local 472 (Laborers International Union, AFL-CIO) and Bricklayers Local 37. Respondent, at all material times, had a collective-bargaining agreement with Local 37 covering all employees within Local 37's tradeline jurisdiction as described in the agreement. Because of conflicting jurisdictional claims between Locals 37 and 472, Respondent and both locals entered into an arrangement whereby masonry work below ground level would be divided equally between Locals 37 and 472 and all above-ground work would be assigned to Local 37. A series of problems concerning the division of work between these two locals arose both before and after the parties' arrangement. (It should be noted, at the outset, that the General Counsel does not contend that Respondent favored either local in making work assignments.) Koleszar came to the job as a mason and cement finisher in July 1975, and the next month he was appointed Local 37's shop steward by Patrick Ciardi, the Local business agent. He performed the usual functions of a job steward,t and in this connection he made frequent complaints, generally to the general labor foreman, John Saltarelli, that Local 472 was doing Local 37's agreed-upon work. According to the credible testimony of Koleszar and Ciardi, Koleszar called Ciardi to the jobsite two or three times a week in connection with these matters. On an occasion in December 1975, Ciardi was on the jobsite talking to Koleszar when they were approached by Saltarelli who asked if Ciardi had a problem. Ciardi said he did, and Saltarelli told Ciardi to see Ken Ryman, the field superintendent, and to take Koleszar with him. Koleszar was laid off a half hour later. Ciardi immediately called Ryman and explained that he (Ciardi) believed Koleszar had been laid off because of Ciardi's confrontation with Saltarelli earlier that day. Ryman agreed that Koleszar could return to work, which he did. In the winter and spring of 1976, Koleszar continued his complaints concerning Local 37's work assignments. His last complaint was on May 13, the day before he was fired. I Respondent's contract with Local 37 provides, in part, as follows: ARTICLE XXXIV Shop Steward 34-1. The business representative of the Local Union or District Council having supervision over the job shall appoint a competent journeyman as shop steward on each job. His employment may be terminated by the Employer after a review of complaint against him between the Employer and the business representative, if both agree. The shop steward shall only take the necessary time to perform his duties. There shall be no nonworking shop steward, and the shop steward shall not be permitted to leave the jobsite for the performance of his duties unless by the consent of the Employer. The shop steward shall have no authority to call any strike or stoppage of work or to make any Agreement which changes, modifies or alters any of the terms and conditions set forth in this Agreement. 34-2. The shop steward shall collect all work dues and be required to fill out a weekly shop steward report with names and numbers of all On that day, Koleszar saw several concrete trucks enter the jobsite and he asked his foreman, Joseph Tillyer, if Local 37 men would be covering the pour. Tillyer replied that Koleszar was the steward and should "find out yourself." Koleszar then sought to ascertain from Saltarelli whether any Local 37 men would be covering the pour and he asserted that a Local 37 man was entitled to be so assigned; Saltarelli replied that no such employee was assigned, and he angrily told Koleszar to call Ciardi if Koleszar was not satisfied. (Saltarelli subsequently assigned a Local 37 member to the pour.) Superintendent Ryman came up to Koleszar at the time and asked whether Koleszar had any problems. Koleszar said he had none, whereupon Ryman stated, "you know you will go down the road like before." This was an obvious reference to Koleszar's above-men- tioned layoff in December. The following morning passed without incident. Koles- zar was working that afternoon with two other masons when Saltarelli gave him another assignment on the jobsite. Saltarelli testified, in effect, that he could not find Koleszar for 30 minutes after having given Koleszar the other assignment and that he eventually saw Koleszar conversing with an employee of a subcontractor on the project. Koleszar had meanwhile completed the assignment within the mentioned 30-minute period. Saltarelli testified that he then told Ryman that Koleszar "has to go. He is just disrupting me as far as running the job." Ryman thereupon terminated Koleszar with the explanation, according to Koleszar's unrefuted testimony, that "you make trouble on the job." Respondent contends that it discharged Koleszar for "not doing his work as a cement finisher," for "wandering around the job," and for "conversing with other people," and that none of these items related to the performance of his steward functions. Saltarelli testified that Koleszar was often away from his job, that he did not produce a sufficient quantity of work, and that he "was definitely holding up the job as well as disrupting the labor personnel which really had nothing to do with him." One example of "disruptive" conduct, according to Saltarelli, was "if he came to me with a complaint that he saw such and such was being done by 472 and that required a mason, well that was disruptive if men on his job and amount paid by each man. The shop steward shall fill out welfare reports weekly. The shop steward shall take necessary time to perform his duties. 34-3. The shop steward shall see to it that the terms and conditions of this Agreement are carried out. 34-4. The shop steward shall see to it that proper scaffolds of all types are in safe working order. 34-5. In the event of emergency. difficulties on the job, the shop steward shall be required to notify the business representative of the Local Union. ARTICLE XXXV Assignment of Work The Employer agrees to assign to the classes of employees covered hereunder all work and services which he may contract to perform within the territorial jurisdiction covered by this Agreement in connection with the traditional work jurisdiction of the trowel trades. 516 SCHIAVONE CONSTRUCTION CO. that job only calls for one man, how do you split it up fifty- fifty?" Joseph Tillyer, Koleszar's immediate foreman, had nothing to do with Koleszar's discharge. While testifying that he had no complaints of his own about Koleszar or the quality of his work, Tillyer also testified that Saltarelli had complained to him "on more than one occasion" that Koleszar took too long on job assignments and wandered about too much. According to Tillyer, Saltarelli remarked on the occasion of the cement pouring incident on May 13, that Koleszar was "breaking my balls." Ryman also made a similar comment that day, according to Tillyer, and Ryman had told Tillyer on several occasions that Ryman "wish I [Ryman] could get rid of him [Koleszar]." Foreman Tillyer attributed Ryman's "wish" to the fact that Koleszar "was complaining about the division of the assignment of work between Local 37 and Local 472." Tillyer further testified that there was a "big uproar" every time Ciardi was summoned to the job by Koleszar and that it was on such occasions that Ryman "wished" he knew "how to get rid of[Koleszar]." Resolution of Issues Before addressing the merits of the case, there is a preliminary matter to be considered. This stems from Respondent's Collyer2 contention that Koleszar's discharge should be handled under the grievance-arbitration provi- sions of Local 37's contract with Respondent rather than in an unfair labor practices proceeding. The contract does provide that "all questions or grievances involving the interpretation and application of this Agreement" shall be resolved under prescribed grievance-arbitration proce- dures, and these provisions are clearly applicable to the Koleszar discharge. The deferral policy under Collyer is discretionary. And the Board has held, as the General Counsel contends, that deferral is inappropriate where, as here, the gravamen of a complaint is retaliation or discrimination for use of contractual grievance procedure. Nissan Motor Corporation in U.S.A., 226 NLRB 397 (1976); Wabash Asphalt Compa- ny, Inc., 224 NLRB 820 (1976); Morrison-Knudsen Compa- ny, Inc., 213 NLRB 280, 286-288 (1974); Joseph T. Ryerson & Sons, Inc., 199 NLRB 461 (1972). 1 accordingly reject Respondent's Collyer contention. Recapitulation of the facts and circumstances is unneces- sary in finding, as I do, that Respondent terminated Koleszar because he became a thorn in its side by his constant vigilance in seeking to protect Local 37's work jurisdiction under both the collective-bargaining agreement and the work distribution arrangement. If this was not the sole cause, it was at least a substantial contributing reason for his termination. See Henry M. Hald High School Association, 216 NLRB 480, 484 (1975). This is not to say that Koleszar was right whenever he protested or inquired about a work assignment or even that he was ever right - and I do not address such issue for it is not germane. 2 Collyer Insulated Wire, 192 NLRB 837 (1971), enunciated a policy of deferring to grievance-arbitration procedures established in a collective- bargaining agreement where an alleged violation of the Act might also be an alleged breach of the agreement. : In the event no exceptions are filed as provided by Sec. 102.46 of the Diversified Industries, a Division of Independent Stave Company, 208 NLRB 233, 238 (1974). Nor is it relevant that Respondent's annoyance with Koleszar might be deemed a reasonable reaction. The short of the matter is that union steward Koleszar's active prosecution of Local 37's contract rights is protected activity under the Act and that Respondent violated Section 8(a)(1) and (3) of the Act in its effort to rid itself of Koleszar for such reason. Morrison- Knudsen Co., supra, 290; Diversified Industries, supra, 238- 239; Nissan Motor Corp., supra. CONCLUSIONS OF LAW 1. Respondent is an employer within Section 2(6) and (7) of the Act. 2. Local 37 is a labor organization within Section 2(5) of the Act. 3. By discharging Andrew Koleszar on May 14, 1976, Respondent has violated Section 8(a)(X) and (3) of the Act, and such violations affect commerce within Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices violative of Section 8(aXl) and (3) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action, including reinstating and making whole Koleszar in order to effectuate the policies of the Act. All backpay computations shall be in accordance with F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the foregoing findings, conclusions, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 3 Respondent, Schiavone Construction Company, Parsip- pany, New Jersey, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Discharging or discriminating in any other manner against shop stewards of Local 37, Bricklayers and Allied Craftsmen, AFL-CIO, for protesting in regard to work assignments affecting Local 37 or for otherwise seeing - in accordance with Respondent's Agreement with Local 37 - that the terms and conditions of the Agreements are carried out. (b) In any like or related manner interfering with, restraining, or coercing its employees in exercising their rights under Section 7 of the Act. 2. Take the following affirmative action: (a) Offer to Andrew Koleszar reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position at its Parsippany, New Jersey, project, without prejudice to his seniority or other rights and Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and the 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. 517 DECISIONS OF NATIONAL LABOR RELATIONS BOARD privileges, and make him whole as set forth in "The Remedy" section, above, for any loss of earnings suffered as a result of the discrimination against him. (b) Preserve and, upon 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 and the right of reinstatement under the terms of this Order. (c) Post at its Parsippany project copies of the attached notice marked Appendix." 4 Copies of said notice, on forms 4 In the event that the Board's 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 provided by the Regional Director for Region 22, after being duly signed by Respondent representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Resonable steps shall be taken by Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 22, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 518