Fleur Dulac

FLEUR DULAC 93 Fleur DuLac, a joint venture composed of Fred Sahadi and Fred Andrews and Carpenters Local Union 2035, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Case 20- CA-16918 6 December 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER On 21 February 1984 Administrative Law Judge Richard J. Boyce issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. The National Labor Relations Board has delegat- ed 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 .briefs and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order as modified.' ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Fleur DuLac, a joint venture composed of Fred Sahadi and Fred Andrews, Campbell, Cali- fornia, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied. ' We find merit in the Respondent's contention that the evidence es- tablishes that the Company made unconditional offers of reinstatement to the discrimmatees and that the latter effectively rejected the offers The credited evidence shows that on 4 March 1982 General Building Superin- tendent Bergsma invited discriminatees Kostelny, Jordan, and Rule to report to work on 8 March Bergsma informed the three carpenters they they would receive union wages and benefits Bergsma's efforts to con- tact Teuscher with the same message were unsuccessful On 8 March Kostelny, Jordan, and Teuscher reported to the jobsite and tendered dis- patch slips containing recognitional language Bergsma refused to accept the slips because of the recogrutional language Kostelny, Jordan, and Teuscher stated that they could not return to work if Bergsma refused to accept the dispatch slips As a result, they were not rehired Rule, who had recently undergone surgery, contacted Bergsma in early June 1982 and stated that he had recovered and wished to return to work Bergsma asked Rule how he wanted "to come back" Rule answered "as a Union member and the whole bit" Bergsma replied that he could not hire Rule The judge concluded that the Respondent's refusal to rehire the dtscri- minatees was not unlawful The judge found that the Company's actions were permissible in view of the discnminatees' insistence that the Re- spondent accept the dispatch slips containing recognitional language We find, based on the evidence and the judge's findings set forth above, that the Respondent unconditionally offered to reinstate the discnminatees at their previous terms and conditions of employment and that the discri- minatees rejected the offer by conditioning their return on the Compa- ny's acceptance 'Of the dispatch slips Accordingly, we shall modify the backpay provision and delete the reinstatement requirement in the recom- mended Order and notice We shall further modify the Order and notice to require that the Respondent expunge from its files any references to the unlawful discharges Sterling Sugars, 261 NLRB 472 (1982) 1. Substitute the following for paragraph 2(a). „ "(a) Make whole Martin Kostelny, Lyle Teuscher, Raymond Jordan, and Robert Rule for loss of earnings and benefits, plus interest, from the dates of their unlawful discharge in January 1982 until 8 March 1982, the effective date of the offer of reinstatement." 2. Substitute the following for paragraph 2(b). "(b) Remove from its files any reference to the unlawful discharges of Kostelny, Teuscher, Jordan, and Rule, and notify them in writing that this has been done and that evidence of these unlawful dis- charges will not be used against them in the future." 3. Substitute the attached notice for that of the administrative law judge. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT discharge or otherwise discrimi- nate against any employee because of that employ- ee's membership in or support of Carpenters Local Union 2035, United Brotherhood of Carpenters and Joiners of America, AFL-CIO or any other union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL make whole Martin Kostelny, Lyle Teuscher, Raymond Jordan, and Robert Rule for loss of earnings and benefits, plus interest, from the dates of their unlawful discharge until 8 March 1982. WE WILL remove from our files any reference to the unlawful discharges, and WE WILL notify Teuscher, Kostelny, Jordan, and Rule that this has 273 NLRB No. 12 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been done and that -evidence of these unlawful dis- charges will not be used against them in the future. FLEUR DULAC, A JOINT VENTURE COMPOSED OF FRED SAHADI AND FRED ANDREWS DECISION STATEMENT OF THE CASE RICHARD J. BOYCE, Administrative Law Judge. This matter was tried in South Lake Tahoe, California, on March 15 and 16, 1983 The charge was filed February 18, 1982, and amended March 31 and August 16, by Car- penters Local Union 2035, United Brotherhood of Car- penters and Joiners of America, AFL-CIO (Union). The complaint issued August 20, 1982, was amended during the trial, and alleges that Fleur DuLac, a joint venture composed of Fred Sahadi and Fred Andrews' (Respond- ent) violated Section 8(a)(1) and (3) of the National Labor Relations Act by:2 (a) Discharging Martin Kostelny and Lyle Teuscher on January 20, 1982. (b) Discharging Raymond Jordan and Robert Rule on January 23, 1982. (c) Refusing to rehire Kostelny, Teuscher, Jordan, Peter Gillis, and William Kelly on March 29, 1982 (d) Refusing to rehire Rule on June 1, 1982. FINDINGS OF FACT I. JURISDICTION Respondent is engaged in the development of a multi- million dollar, 22-unit condominium project (Project) on Lake Tahoe near HomewOod, California. To this end, it annually purchases over $50,000 in goods and materials from suppliers outside California, and thus is an employ- er engaged in and affecting commerce within the mean- ing of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION The- Union is a labor organization within the meaning of Section 2(5) of the Act. The Company's name and the caption are as amended during the trial 2 Sec 8(a)(1) states that "It shall be an unfair labor practice for an em- ployer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 " Sec 7 states in relevant part "Employees shall have the right to self-organization, to forin, join, or assist labor organizations, to bargain collectively through'representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection Sec 8(a)(3) makes it an unfair labor practice for an employer "by dis- cnmmation in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization" III. THE ALLEGED MISCONDUCT A. Evidence 1 Backgroinid Work began on the Project in the spring of 1981. The project manager, so called, is Fred Sahadi, one of the joint venturers. Although his office is over 200 miles away, in Campbell, California, he visited the site almost daily from the Project's onset through October 1981 Thereafter, as weather worsened with the coming of winter, his visitations were markedly less frequent. The ranking person regularly on the site, directly accountable to Sahadi, is John Bergsma, general building superintend- ent. He testified that he is "in charge of all construc- tion." Sahadi testified that, whether or not physically present on the site, he was in communication with Bergsma "on a continuous basis" at relevant times.3 The carpenter complement peaked at perhaps 40 people in October 1981. As Sahadi put it, Respondent was "pushing _the job hard" before winter, "working as many people as [it] could in as many places on the site as [it] could." Reductions in force followed as tasks were _ completed and * winter conditions curtailed the range of activities that might feasibly be undertaken. Five carpen- ters remained after the discharges in question. That number persisted through the week following, after which it rose to 7 in the week ending-February 7, to 8 in the week ending February 14, to 16 by the end of Febru- ary, and .to 25 by mid-March, as weather moderated. The complement designedly was comprised of both union members and nonmembers until the present discharges.4 It has been entirely nonunion since The union carpenters were paid union scale wages, and fringe benefit contributions were made for them as if they were covered by the Union's master labor agree- ment. 5 The nonunion carpenters receive varying wages purportedly pegged to their skills, which in some and probably most instances are less than union scale, and have no fringe benefits Compensation for the union car- penters was agreed upon during a meeting on June 5, 1981, between representatives of Respondent and the Union. It was further understood, at least so Respondent thought, that Respondent would not be party to the master labor agreement and that the Union would enjoy no representational status on the Project. 3 Sabath testified that he speaks with Bergsma, by telephone if not in person, "two or three times a day almost every day of [his] life: Bergsma testified that Sahadi sometimes calls "ten times a day" and sometimes does not talk to Bergsma "for a week" 4 Kostelny testified credibly and without refutation that, when he was invited to work on the Project, Bergsma told him , that Respondent needed "some token union men", and that Sahadi told the newly hired carpenters a week or so later that he was "happy" to have some union members on the payroll inasmuch as he needed "some token union men to keep Bob Young off his back" Young is the Union's business representative , Union carpenters received an hourly wage of $15 35 at the start of the, job Respondent's hourly fringe benefit contributions for 'them were $1 605 for health and welfare, $1 95 for pension benefit, $1 60 for 'vaca- tion fund, 12 cents for apprenticeship training, and 7 cents for ,industry advancement FLEUR DULAC 95- There were three union carpenters on the Project as of the June 5 meeting, each of whom had been hired by Bergsma independently of the Union's hiring hall. On June 8, the Union's business representative, Robert Young, appeared at the site, presenting Bergsma with:, dispatch slips pertaining to the three. The slips, bearing the imprimatur of the Sierra Nevada Foothill District Council of Carpenters, included this language: Note- -By accepting this referral, the Employer herein recognizes the Union and each of its affili- ated local unions and district councils as the collec- tive bargaining representative of his or its carpentry employees employed in the 46 Northern California counties and agrees to be bound by all the wages, hours, or other, terms and conditions of the Carpen- ter's Master Agreement for Northern California, in- cluding the payment of all wage scales, health and welfare, pension,. vacation, apprentice, and industry advancement contributions required by said Agree- ment. '• Prompted by Young's action, Respondent's attorney, Roy Potts, sent Bergsma a letter dated June 9 in which he "attempt[ed] to summarize" the June 5 understanding. Copies were sent to Young, to the Union's attorney, Mi- chael Roger, and to R. A Caples, business manager of the Sacramento-Sierra Building & Construction Trades Council, all of whom had attended the June 5 meeting. The letter stated in part: At the meeting on Friday, I reiterated Mr. Saha- di's position that he would pay union scale wages and fringes for all carpenters hired out of the union hall. No agreement was made that Fleur DuLac would hire all its help through the hall . . . . Further it was made clear that Mr. Sahadi would not sign any agreement or do anything which would give the Union any direct or indirect juris- diction whatsoever over the job. Mr Young's appearance on the job on Monday afternoon, and the tender of his dispatch tickets was not as a result of any agreement which I made on Friday or any other time and was solely on his own' initiative for his own account and presumably for' union internal bookkeeping procedures. This was followed by a letter dated June 15 from Potts to Young, copy to Roger, in which Potts stated, after setting forth the above-quoted dispatch-slip lan- guage, that he had been "careful to point out" in the June 5 meeting "that the employer did not recognize the union as the collective bargaining representative of its employees"; and that, while "we expressed our willing- ness to pay scale and fringes -if and when we used union employees. . . we were at pains to find a way to do this without extending recognition." The letter concluded that Respondent "presume[d]" that the use of the dis- patch slips "was not an attempt to gain recognition indi- rectly" On June 22, Potts sent a telegram to Caples stating: Just after lunch today Robert A. Young appeared on the Fleur DuLac construction site . . . for the second time in a week and announced that his men could-not work with others on the job. . . . As was pointed out in my letter to Job Superin- -tendent Bergsma dated June 9, 1981, a copy of which was sent to you, and my letter to Young dated June -15, 1981, Fleur DuLac does -not recog- nize the Carpenters as bargaining representative of any of its employees does not have an agreement with the Carpenters to hire any employees from the Union, and has not worked out with 'the Union an arrangement whereby carpenters hired through the hall, if any, may be paid fringe's. 6 This is- the kind of problem that the Employer has feared from the outset. We need your help. • What happened next is not revealed by the record The record does reveal, however, that tension between Respondent and the Union esdalated. Kostelny, one of those whose discharge is in issue, testified that Sahadi convened a meeting of Respondent's carpenters in late July or* early August, declaring 'that he was "having union problems With Bob Young," that he-'did not like the way 'Young "handled" the Union, and that Respond-- ent's union carpenters "would have to 'go to work there on a nonunion basis" if there were "any more problems" This testimony was not cOntroverted - • Then, by letter to Sahadi dated October '9, Young wrote: - • We have now ,had three - meetings together and still have not resolved oun problems at Fleur DuLac. I have dispatched eleven carpenters to your job. There are rive of them left There are approxi-, mately twenty to thirty carpenters on the job that were not dispatched by this Hall. This leaves me to assume that they are nonunion and that their wages and fringes are below the area standard. I don't know if you are aware of a fight on your job between a union carpenter and a nonunion car-, penter. What the fight was about is immaterial. The •union carpenter was laid oft the next day. I was never contacted by your superintendent, John. In my opinion, it takes two people to have.a fight. So, if there was any doubt abdut who started what, they both should have been laid off. There was also a meeting held October 6, 1981, after work, with John Bergsma and the union car- penters on the job. The union carpenters were told that if the problems with the union were not solved, 6 In context, it is plain that Potts, by mentioning the absence of an ar- rangement for making fringe benefit contributions, was not- contending that Respondent had not committed itself to make such contributions for union members on its 'payroll Rather, he was referring to the as yet unre- solved problem of how to comply with the "written agreement" require-- ment for such contributions, as specified in the proviso to Sec 302(c)(5) of the Act, in the absence of a collective-bargaining agreement The problem was handled by Respondent's including with its July 1981 con- tributions a cover letter setting forth the commitment as understood by Respondent and stating that the cover letter "will constitute the written agreement" as required by the Act 96 DECISIONS OF NATIONAL:LABOR RELATIONS BOARD they , could continue working provided they : dropped out of the union. This does not sound like we are working together... I would very‘much like to-get together v`vith you in the next few days to see if _we, can resolve the problems on our job. If we cannot resolve,-them, we . could appear, before an impartial arbitrator_ at. a grievance hearing to settle the problems :of , hiring and the payment of fringes for the people perform- - ing carpenter work at the Fleur D,uLac jobsite Sahadi replied by leiter dated October 22, stating that "the substance of our understanding is set_ out in" Potts' June 9 letter to Bergsma, a copy of which had been sent to Young; that .Respondent "has fulfilled all obligations of our understanding"; and that, while Sahadi Would be "hapPy to meet and confer with" Young, Young's letter "does not raise any question requiring a meeting at the present time." . _ • Young countered on about October 28 , by filing a grievance against. Respondent, alleging it to be in viola- tion of the union-security, hiring hall, and fringe benefit, provisions of the Union's master, labor agreement. Re- spondent was bound by that agreement, so the Union contended, because Saha& had signed an agreement with another.Carpenters Union' affiliate in 1969. On December; 11, the :United States District Court for the Eastern Dis- trict of California granted ,Respondent's, ex parte motion for an order lernporarily restraining the, Union from going to hearing on the grievance. On February 5, 1982, following a court hearing January 18, the_ restraining order was suPerseded by a- preliminary injunction; and, by order dated May 18, after.: another court hearing Maich 22, the . Union was 'permanently enjoined "from proceeding with any_ form of hearing :or arbitration of the. grievance;" the Union's "underlying premise having been rejected that Respondent was bound by the master labor agreement. • 2 The discharges Kostelny and Teuscher were discharged January 20, 1982, 2 'days after the hearing from which the prelim- narir injunction emanated. Jordan and ' Rule were dis- charged 'January 23. Kostelny had been on the payroll since late May 1981; Teuscher, since late June; Jordan, since -early-July; and- Rule, since September All were carPeaters and union .members. Sahadi testified that Kos- telny, and Teuscher are' '"top flight" carpenters, that Jordan is "good," 'and that Rule is ."an absolutely top- class layout man," but "the worst" as a meChanic - The discharges' were effected by Brad Scott, a carpen- try foreman. 7 He informed Kostelny and Teascher, who "partnered" on the Project, in a single conversation ,on January 20, after -which be conducted them to the gate He followed , the same procedure with Jordan and Rule, also ".partners, ba January 23. Kostelny testified that Scott, having said that he and Teuscher had "to go down .the road," explained that Sahadi had decreed the action because '"if was snowing," work 'was slow," and „ • • "7 The -parties stipulated that Scott is a supervisor for purposes of the Act they were not "getting much progress done." Kostelny asked, as he recalled, if "the entire job" was being shut down, and Scott said it was. Kostelny assertedly then re- marked that he had -"heard that the nonunion guys were going to stay and union guys were going,", to which Scott replied, "I don't know, you guys just have to go "8 Kostelny testified that Scott never "point-blank" said he was being let go because he "was union" Teuscher recalled Scott's words as being more point- ed. He testified that Scott stated. "You guys are going down the road. Mr. Sahadi is laying off all the union guys" Scott appended, according to Teuscher, that Jordan and Rule would be kept for the layout of some walls, after which they, too, would be sent "down the road." Jordan testified that Scott advised him and Rule, on January 23, that they were being laid off because Sahadi was "cutting all ties with the Union"; and that Scott "hated" to see them go, but "could do [nothing] about it:" Rule recalled Scott's stating that Sahadi "didn't want union carpenters on the job and wanted nothing to do with the Union"; and that, since Jordan and Rule were union members, he "was sorry"- but he .Thad to fay [them] off." , The record is without Scott's version of the discharge conversations. He did not testify. Bergsma was vacationing in Hawaii the week of the discharges. On his return the week following, according to Kostelny and Teuscher, they jointly confronted him, asking why they had been laid off when he "had prom- ised [them] three years worth of work." Bergsma had in- duced , him to leave another job,' Kostelny testified, by as- suring him that "there would be two Or three years worth of work" on the Project; and Teuscher testified that, when he inquired about working on the Project and asked. how . much work there would be, Bergsma replied, "Oh, heck, we have three years of work ."9 Bergsma an- swered, as recounted by Kostelny, that Sahadi had come "all unglued" while Bergsma was in Hawaii; that Bergsma wanted . Kostelny and Teuscher back "right away" and woald "have to find out what was going on to straighten up the problem", and that, if they did return, "it would more than likely have to be on a non- union basis, because Fred [Sahadi] wanted to break all ties with the Union" and "all the union men were suppose[d] to get off the jobsite." Kostelny testified that he then asked, "[I]f we're going to come back to work on a nonunion basis, [would] 22.50 an hour be an out-of- line figure?" to .which Bergsma replied that he ,"would not have any problems with that." Teuscher described the encounter in substantially the same terms, although his version of Bergsma's answer to the opening question, why they were laid off, was more explicitly antiunion—that Sahadi "got•into . a tiff with the Kostelny testified that there had been "little rumbles throughout the project for that whole day that the whole job was going to be shut down on Friday, but the_ nonunion guys would be back to work on Monday morning" 9 That he made these representations was not controverted -by Bergsma - FLEUR DULAC 97 business agent from the Union" and the discharges were "just to get rid of the union guys " „ Bergsma, while testifying at some length, did not ad- dress this exchange. Jordan testified that, about 2 weeks after he and Rule were discharged, he had a conversation with Bergsma and Scott in which he asked if he could have -his job back if he "dropped out of the Union" Bergsma an- swered, according to Jordan, that he ."would love to have [Jordan] back, and that he should report the next Monday." Jordan continued that, when he showed up for work as directed, Bergsma said there would be "a problem hiring [him] back as a nonunion carpenter," and that it would be necessary "to check" with Respandent's lawyers first. Bergsma said nothing about these conversa- tions in his recital. Concerning the origin of the decision or decisions to effect the discharges, and the underlying reasons, Bergsma testified that he had nothing to do with .them, his first knowledge coming on his return from Hawaii. He first averred that he had "no idea" who had ordered them, not having been there, later conceding—"I would think so"—that the decision(s) had to have been Sahadi's or Scott's since "nobody else had anything to do with carpenters." Bergsma testified yet later that, when he asked Scott and the Project's architect, Nick Kromydas, about the discharges, "they told [him] . . . someone told 'em to lay some carpenters off," but "never did give [him] no reason for the layoff" Bergsma ventured that, while not "absolutely positive," he thought -this came from Kromydas, and that Kromydas also disclosed that Sahadi had given the order to "lay 'em off" Bergsma added, "Work was catching up, that's what [Kromydas] told me, and he had orders to lay some people off" Kromydas did not testify Bergsma would have it that he never spoke with Sahadi about the discharges—"I don't think I did.", He Went on that, while he had "had a lot of conversations with Mr. Sahadi on the phone about carpenters," he did not think "it's necessarily union carpenters." Bergsma later relented that he could not remember any particular conversation with Sahadi about union carpenters, but "would say" they "probably" had such a conversation "at one time or another," although not before his depar- ture for Hawaii. . Bergsma testified that he was not "really surprised" to learn about the discharges, "because . . . the weather was bad" Beyond that, he asserted, carpentry work "was nearing completion." "The only reasons" he could think of for the discharges, he testified, were "a lack of work, [and] the weather started catching up with us." He denied—"I don't think so, no"—that Kostelny, Teuscher, Jordan, and Rule were selected for discharge because Respondent "had to pay them a higher wage than the nonunion carpenters"; and stated that it was "pure coin- cidence" that they happened to be union members. Sahadi testified that he customarily decides when lay- offs are called for, leaving it to Bergsma to decide on "specific people." The "only specific instruction" he gave Bergsma, he stated, was, "Keep your best people to the end." With regard to the discharges in question, however, Sahadi testified that he was "not sure" whether Bergsma was party to the decisional process, having been "on vacation at this time." Sahadi later opined that "probably the decision was ,made prior to the time that [Bergsma] left" for Hawaii, and that-he "would think" Bergsma "made the decision." As concerns his role in the decision(s), Sahadi testified that he had "no intima- tion" beforehand that "these particular people" were to be separated, and that he had "no reason to anticipate" if SahaCh continued. [U]ltimately the responsibility was mine. . . . But at no time did I single out, at least that I can recall . . people like Bob Rule and Marty [Kostelny] and Gar [Teuscher]. Sahadi testified that he and Bergsma never discussed the discharges, only to concede that the subject ,"could have come up in conversation." He enlarged: s . I don't , think so. But it could have. And—and it wouldn't be unusual for me not 'to remember it. I mean, it—it was not a big thing until these charges were filed. Regarding' the reasons for the discharges, Sahadi testi7 fled that "it was a combination of things"—"we had run out of work and weather conditions precluded us from doing work." "And another reason," he asserted, "was that the working conditions were just plain dangerous." Sahadi elaborated that "the weather had turned totally. intolerable" in January; that there was "ice all over the place," electrical cords for the power equipment were "literally frozen to the shbfloor," the roofs "were un- workable," and "it was so cold . . you couldn't hold a hammer." Sahadi proceeded: • - So we had reached a point where, as the severity of the winter 'continued, it became almost intolerable to go forward, and we just basically terminated the—the work because we weren't getting any pro- ductivity . Whether •Sahadi was speaking from personal observa- tion when describing the January conditions, and, if so, when during that month, is unclear. As previously men- tioned, he visited the site less, frequently during the winter; and, while he was "sure" he was there in Janu- ary, • he could not recall when Bergsma testified that he could not remember s'eeing Sahadi on the site in January. Sahadi testified elsewhere, in explanation of the dis- charges, that in January: . . ..we were slowly but surely winding down and trying to tighten up certain categories of. the job; and as those categories were finished, to the extent we could finish 'em, then those people were laid off and were not rehired again until the weather broke in the spring. Sahadi denied that the discharges. were "to get rid of union employees." As if to underscore his indifference to union•sfatus, he testified when asked if the carpenters on 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the payroll after January 23 were all nonunion, "I'd have to check the records." As concerns his "instruction" that Bergsma keep his "best people to the end," Sahadi acknowledged that Kos- telny, Teuscher, and -Rule "fell into that category" Asked, then, if they were superior to those retained, Sahadi testified: [T]here's no question about it. The few people that were retained were dumbbell carpenters, do a little bracing here, put a little plywood up to keep the snow out of the buildings. Sahadi hastened to add that this did not mean his instruc- tion had been violated. He explained: What I'm saying is that we had a situation where the job had just come to a stop When you're spread out over 18 acres' with a million of dollars sticking up, you've got to have some people run- ning around doing, you know, for a few hours a day, hopefully at the smallest hourly rate per day, menial things, tacking up plywood. Kostelny, Teuscher, Jordan, and Rule were doing inte- rior framing when discharged. Kostelny testified that he and Teuscher had been doing this "for some time," that it Was "nowhere nears being -completed," and that "skilled" carpenters were needed to do it. Teuscher testi- fied that "there were a lot of very important jobs to do yet," and that they required "a skilled carpenter." Jordan testified that he "had plenty of work to do" when dis- charged, that "major interior framing" remained to be done; that "it was going to take an immense amount of time" because of the custom nature of the work:" and that "all the windows had to be put in" besides. Rule echoed the others that "there was work to do" In addition to testifying that Bergsma assured them, about the time of their hire, that there would be 2 or 3 years of work, Kostelny and Teuscher related that they spoke with Bergsma shortly before Christmas 1981 about the prospect of their being "able to stay busy throughout the winter." Bergsma told them, according to Kostelny, that they "were some of [the] best boys on the job' and . . ..would be staying throughout the winter to go work in the boathouse and to go work underneath the roof on the various different projects." Teuscher's version of Bergsma's words was to the same effect: "You guys ain't going no place 'til this job is over. Don't worry about any work." Bergsma did not speak to this exchange in his testimony . _ Jordan and Rule testified that, in. a conversation with Scott about a week before their discharges, Scott spoke about himself teaming with one of them, and having an- other foreman, Joe Columbus, team with the other, to do interior framing and set windows until the weather mod- erated. Kostelny, Teuscher, and Jordan all testified that the Project posed no unusual hazards when they were dis- charged. They particularized that the weather-exposed power cords presented no threat, Kostelny and Teuscher '° Jordan testified, Each piece of wood had to be cut special" explaining that OSHA-required ground-fault interrupters ensured against shock, and Jordan noting that a problem would arise only if the cords were not properly grotind- ed. Bergsma said nothing about hazardous conditions in his testimony The day before Kostelny and Teuscher were dis- charged, January 19, Respondent laid off two carpenters, both nonunion. The day of their discharges, it also re- leased three nonunion carpenters, all of whom were back on the payroll in the week ending February 14. Earlier in January, three others were laid off, two of whom were nonunion One of those two was recalled the week ending February 21 As earlier indicated, there were* no reductions in force after the January 23 discharges of Jordan and Rule. 3. The alleged refusals to rehire By telephone on March 4, 1982, Bergsma invited Kos- telny, Jordan, Rule, Peter Gillis, and William Kelly to report for work the following Monday, March 8, telling them they would receive union wages and benefits. He also attempted, without success, to call Teuscher with the same -message. Gillis previously had worked on the Project, as a union carpenter, from .October 1981 until laid off December 31. Kelly, also a union carpenter, had worked on the Project from October 1981 until laid off January 16, 1982 Bergsma presumably was acting on Sa- hades.say-so when making these overtures. Sahadi testi- fied that he wanted Kostelny, Teuscher, and Rule back "so bad [he] could taste it," and that union wages and benefits therefore "were not even an issue." On March 8, all but Rule of those called reported to the site at the appointed time, ready for work. Teuscher also reported. Rule, who had undergone surgery after his January- discharge, was still disabled. Each of the five tendered to Bergsma a dispatch slip of the sort earlier described Bergsma announced that he "would not accept a dis- patch' slip," and the five said they could not go to work in that circumstance. 'As a result, none was- hired. Bergsma con-ceded that, but for the slips, they would have been hired: He explained to them that he had been "told by our attorneys not to accept the slip" because of the recognmonal language previously set forth The next day, March 9;' the UniOn's Young demanded by telegram that Respondent immediately hire the five. The telegram further stated: They were refused work because they brought dis- patches to the-job, which is their union obligation. If they are not ieinstated, -we will have to take this mattter to the National Labor Relations Board - - Attorney Potts responded by letter dated March 11, stating in part- Fleur DuLac did not accept the referral slips containing recognition language in 1981 and it .does not do iso now. Your attempt to obtain recognition through the use of the referral slips is not well taken. FLEUR DULAC 99 The employees referred to in your letter were of- fered employment on March 8, 1982, under the same conditions that, they were offered employment in the past year That offer remains outstanding. Fleur DuLac does not recognize your union and does not intend to accept a self-serving boilerplate statement of recognition as a condition of employ- ment of the employees in question. The restriction placed upon these five men by your union is the only bar to their employment. On March 26, Young sent another telegram to Re- spondent, again demanding the immediate hire of the five carpenter-members. The telegram also stated. The use of the dispatch slips only serves to confirm their employment and the conditions of their em- ployment and nothing else. You have no right to condition employment on these workers because of their union membership or activities. In late March -as well, according to Young, the Union's attorney, Roger, counseled him to "put the men on the job without a dispatch "" Young consequently informed each of the five, so he testified, that they were free to return to the Project 'without dispatch slips. Young initially testified that he so advised Kostelny, by telephone, on March 28, and that Kostelny and Teuscher called him back the same day for verification; that he told Gillis and Kelly, also by telephone, on March 28 or 29; and that he informed Jordan, in person at the union hall, on March 29, having earlier left a telephone mes- sage with Jordan's wife. Young later testified that he first advised the men of the new circumstance on "a work day," "more than likely Monday." March 28 , was a Sunday. He testified still later that he "sometimes" makes calls "on the weekend" when he "can't get ahold of men" otherwise, and that he "must have called them on the 28th" inasmuch as he "sent them out [to the Project] on the 29th" Young testified, finally, that he could not remember if he made the calls on March 29 or 1 or 2 days before 12 Kostelny testified that Young called him on March 28, and that he and Teuscher then called Young back the same day. Teuscher testified that the return call occurred on about March 29. Gillis testified that Young's call came to him on March 29; and Kelly, that he heard from Young on March 28 or 29 'Jordan testified that he also- received word by telephone, not in person at the hall as Young would have it,_ Young having called him in late March or early April. Later that same day, according to Jordan, he chanced to see Bergsma in a grocery store, telling him about this latest development. Kostelny, Teuscher, and Jordan testified that they vis- ited the Project the day after receiving Young's go- ahead, apprising Bergsma of the Union's willingness to " Roger did not testify A 12 "The' only way" he. could give definite answer" with regard to when he made the calls, Young .testified,_ would be "to get [his] phone bills from , either the union hall or [his] personal phone at home" He added ':They'd be very hard to find They'd be in boxes of bills It would take hours" The bills were not provided let them return without dispatch slips, and Gillis and Kelly testified that they spoke with Bergsma by tele- phone the day after, likewise telling him that they could return without slips Kostelny testified that Bergsma's response to him and Teuscher was that he "would like" to have them "come back to work," but would "have to consult the attorneys first" and would "get back with" them. Kostelny then asked, as he recounted, "What is this stuff that two weeks ago you would have hired us without a dispatch, and now you won't?" to -which Bergsma answered "I just don't know I have to consult the attorneys." Teuscher recalled Bergsma's saying, "I'd like to have you, but I don't think my attorneys will allow it." Kos- telny testified that he never did hear back from Bergsma. Jordan testified that Bergsma told him, when he ap- peared at the site, that he "wanted" Jordan, but there was "no way that [Jordan], could come back to work" Bergsma also remarked, according to Jordan, that Young "was not running" the job. Gillis related that Bergsma's response to him was that Respondent could not take him back "on the advice of [its] laWyers", and Kelly testified that Bergsma told him, simply, that Respondent "no longer needed [his] services." Young testified that, learning about these latest refusals to hire later the same_ day, he called Bergsma, asking "how come." Bergsma replied, as Young recalled, that Young "would have to talk to" Potts so get the answer. Bergsma denied being party to any conversations of the kind just described, averring that no one came to the site about March 29 asking to return to work; that no one told him on or in the week -after March 29 that the union carpenters could return "without a referral slip"; and, indeed, that he had no recall that any of the union carpenters asked to return any time after March 8. Seeking to bulwark Bergsma's testimony that none of the union carpenters visited the site about March 29, Re- spondent attempted to show, in the words of its counsel, that the Project was in the midst of a "horrible storm" at the time, that "many of the roads were closed off," and that the "area was paralyzed." It is undisputed, however, that Bergsma drove about 22 miles from his home to the Project on March 29, and Earl Hagadorn, the Project's civil engineer, testified that "the highway was open that day and we could reach the front gate" Further, a vehi- cle log maintained by gate attendants at the site reveals that 12 vehicles entered the premises by 9 a.m. March 29, that another 20 entered' during the balance of the day, and that 34 exited that day. The log does not reflect any entry or exit by Kostelny, Teuscher, or Jordan. As its name implies, however, pedestrian ingress and egress ordinarily was not entered; and they testified that they walked in and out on March 29, having parked outside the gate as had -been their practice while on the payroll. By letter to Young dated March 29, ostensibly prompted by Young's March 26 telegram, Potts stated in part: In my March 11, 1982, letter you were advised that the five employees in question were offered jobs under the same conditions that were prevailing at the time their earlier employment was terminated. 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Those conditions did not include the restrictions -contained in the referral slips. The employees in -question did not accept Fleur DuLac's offer and subsequently other employees were hired. . . Fleur DuLac does not intend to hire new employ- ees with such conditions attached. Furthermore, the project has no current need for employees. The letter said nothing about the union carpenters' having told Bergsma, on March 29, that they would be able to return without dispatch slips. Roger, the Union's attorney, responded by letter dated April 6, declaring: The Union reiterates that the use of the dispatch slip is not intended to establish terms and conditions of employment which were [not] in existence as of the time that the workers were originally hired or when they were initially discharged The use of the dispatch slip is only a record that in fact these workers are employed on this job, and we disclaim any attempt by you or your client to view it other- wise. There is no hint in this letter that the Union had aban- doned its insistence upon the dispatch slips as a condition of hire. Potts countered by letter dated April 13. Referring to • the objected-to language in the dispatch slips, he stated: That language is inconsistent with statement in your letter and adroitly worded disclaimers will not vary the fundamental truth that by the use of referral slips the union is trying to establish representative status Rule testified that, about June 1, 1982, he informed Young that he was recovered from his surgery and ready to go to work; and that Young suggested he call Bergsma, adding that a dispatch slip would not be neces- sary for his return to the Project Rule continued that he then called Bergsma, saying that his operation had been "a success" and that he wished to return to work. Bergsma asked how he wanted "to come back," accord- ing to Rule; he answered, "As a union member and the whole bit";" and Bergsma responded that he could not hire Rule, "no way." Rule admittedly did not think he mentioned to Bergsma that he would not need a dispatch slip. Bergsma did not speak to this conversation in his testimony. Rule's last previous conversation with Bergsma, appar- ently, was in early March, when Bergsma invited Rule and the other alleged discnminatees to return to work. At that time, according to Rule, he told Bergsma about his disability and that Young had said he would have "to have a dispatch" from the Union to return to work for Respondent, and Bergsma responded that he would not "allow a dispatch" 13 Asked what he meant by "the whole bit," Rule testified, "Well, with the benefits and everything" B. Conclusions 1. The discharges It is concluded that Kostelny, Teuscher, Jordan, and Rule were chosen for discharge because of their union membership, and that the discharges consequently violat- ed Section 8(a)(1) and (3) as alleged This conclusion is based on the totality of these ' fac- tors: 1. Respondent and the Union were engaged in an on- going dispute over the nature and legal incidents of their relationship, most recently manifested by a court hearing January 18-2 days before the discharges of Kostelny and Teuscher, and 5 before those of Jordan and Rule—in connection with Respondent's ultimately successful effort to enjoin the Union's grievance against it. That Sahadi mightily resented the Union's part in this dispute was re- vealed the preceding summer when he declared to Re- spondent's union carpenters that he was "having union problems" with Young, and that all the carpenters "would have to work there on a nonunion basis" if there were "any more problems."14 2. Scott, when informing Jordan and Rule of their dis- charges, cited Sahadi's desire to sever Respondent's ties with the Union.15 3. When challenged by Kostelny and Teuscher why they had been discharged, given that he had promised them "three years worth of work," Bergsma, again stated that Sahadi wished to end all ties with the Union. Bergsma -added that, if Kostelny and Teuscher were to return, it probably would have to be on a nonunion basis.i6 4. When asked by Jordan, in early February, if he could return if he "dropped out of the Union," Bergsma told him to report the next Monday 17 5. The selection for discharge of Kostelny, Teuscher, Jordan, and Rule, all concededly excellent carpenters, while retaining what Sahadi termed as "dumbbell car- penters," breached Sahadi's own directive to "keep [the] best people to the end." 6 By denying involvement in the discharge decisions, Sahadi and Bergsma undermined their competence to testify knowingly about the discharges, and, by implicat- ing each other in the decisional process in the face of those denials, they severely impaired their own and each other's overall credibility with regard to those actions. That impairment was compounded, moreover, by their .often deficient testimonial demeanor, by their ready resort to evasion when examined by other than Respond- 14 Kostelny, uncontroverted, is credited that Sahadi so spoke 15 The unchallenged and substantially consistent testimony of Jordan and Rule is credited that Scott said this " Kostelny's and Teuscher's renditions of this encounter, coincident in their essentials and unrefuted, are credited Because of their discrepant versions of Scott's words when he discharged them, however, no weight adverse to Respondent is given either version of that event, even though Respondent did not come forward with Scott's account '- 17 Jordan's uncontroverted description Of this incident is credited, as is his further testimony that Bergsma later reneged, citing a need- "to check" with Respondent's lawyers FLEUR DULAC 101 ent's counsel," and by Respondent's failure to bring forth Scott, who effected the discharges and thus likely had knowledge of the underlying deliberations, or Kro- mydas, identified by Bergsma as being a percipient wit- ness. Consequently, even if there were not countervailing evidence, the reasons advanced by Sahadi and Bergsma, one or both, for a reduction in force of a magnitude em- bracing Kostelny, Teuscher, Jordan, and Rule—bad weather, hazardous conditions, lack of work—were un- persuasive and are rejected; and the reason offered by Sahadi for eliminating those four rather than the surviv- ing "dumbbell carpenters"—that the overriding consider- ation was not skill but "the smallest hourly rate per day," inasmuch as only "menial things" remained to be done—lik-ewise is npt credited. 7. Apart from Sahades and Bergsma's poor credibility concerning the discharges, Kostelny, Teuscher, Jordan, and Rule were impressively believable that there was ample work for them to do, weather notwithstanding, and that conditions were not unusually hazardous. Fur- ther in that vein, Bergsma told Kostelny and Teuscher when hired that they could count on as much as 3 years of -steady work, and assured them only a month or so before their discharges that they "would be staying throughout the winter"," and Scott discussed with Jordan and Rule, only about a week before their dis- charges, new interior work teaming arrangements until the weather eased.2° 8. Union member carpenters never again were em- ployed on the Project. Respondent argues, of course, that unlawful motive in the discharges is belied by its having terminated a number of others, more of whom were nonmembers than members of the Union, starting the preceding fall, includ- ing five nonmembers on January 19 and 20, and by its having- offered rehire to the four in question in early March. These circumstances, however, do not begin to offset the array of factors just itemized in support of the contrary conclusion That others were terminated from time to time in apparent disregard of union membership, beyond showing the never contested fact that legitimate- ly based reductions in force occurred during the winter, is of little moment And that the four later were offered rehire is of slight redemptive value considering that, de- spite their exceptional abilities, the offers were not forth- coming until some 6 weeks after their discharges, during which time the carpenter complement more than tripled. 2 The, alleged refusals to rehire March 8. 21 It is concluded that Respondent's March 8 refusal to rehire Kostelny, Teuscher, Jordan, Gillis, and Kelly was not unlawful. 18 Saha& recurrently professing an inability to understand the ques- tion, was especially lacking in forthrightness At one point in his cross- examination, he was moved to volunteer. "I'm not trying to be difficult, Judge" In fairness, however, it should be noted that some of the ques- tions put to him were artlessly crafted 18 The substantially conforming and uncontroverted testimony of Kos- telny and Teuscher is credited that Bergsma made these statements " Jordan's and Rule's consistent and unrefuted versions of this inci- dent are credited • 21 The complaint contains no allegation regarding the March 8 refusals to rehire Counsel for the General Counsel declared during the trial, Although the parties have cited no authority on point, and none has been found, it, would seem to go without saying—perhaps that explains the apparent paucity of au- thority—that an employer properly can decline to accept referral of a union member when to do otherwise, be- cause of recognition language in the dispatch slip, would place it at risk of being deemed to have recognized a union not legally entitled to representative status.22 March 29 It is concluded, as a matter of fact, that Re- spondent did not refuse to rehire Kostelny, Teuscher, Jordan, Gillis, and Kelly about March 29; and that the allegation that it violated the Act by so doing therefore is without merit. The grounds for this conclusion are these: 1. That Young defended the use of the dispatch slips in his March 26 telegram to Respondent, and that Roger did the same in his April 6 letter to Potts, compellingly indicates the absence of an intervening relinquishment by the Union of its insistence on the dispatch slips, and fur- ther indicates that the alleged discriminatees never pre- sented themselves for hire on that basis. 2 3 2. Young's testimony was unconvincing that Roger told him to "put the men on the job without a dispatch," as was his additional testimony that he advised the al- leged discriminatees accordingly. Beyond the impeach- ment implicit in his March 26 telegram and Roger's April 6 letter, his demeanor when rendering this testimo- ny was markedly lacking in conviction, his supposed conversation with Roger was devoid of corroboration and without any but the scantest of credence-giving foundational detail, his descriptions of his alleged con- versations with the five members were fraught with tell- tale vagueness and speculation, and his version of how he informed Jordan that slips no longer would be needed was in direct contradiction of Jordan's account. 3. The testimony of the five alleged discriminatees on this issue likewise was unconvincing. Both their demean- or and the content of their recitals gave the impression of collaborative preprogramming; and Jordan's account, as just noted, conflicted diametrically with Young's. 4 Bergsma, while not an exemplar of probity in cer- tain respects previously mentioned, was believable in his denials that anything transpired around March 29 of the sort described by the alleged discriminatees, and in his additional denial that Young called him about January 29 to ask "how come" the five had not been hired. In concluding that there was no refusal to rehire about January 29, no weight is given the nonmention in the ve- hicle log of Kostelny, Teuscher, or Jordan, or to the possibility that the area was beset by a storm at the time. however, that their legality "should be considered and addressed," the issue was fully litigated, and Respondent argues the matter in its brief 22 That Respondent, from time to time after Young's June 8 presenta- tion of dispatch slips for members previously hired, may have accepted such slips when newly hired union carpenters first reported for work does not detract from this conclusion Given the pendency, at the time of the March 8 rejection of the slips, of the District Court's final disposition whether Respondent was subject to the Union's master labor agreement, Respondent had valid and pressing reason to be skittish about the recog- nitional language in the slips 23 Furthermore, neither of the amended charges, the first of which was filed March 30, refers to a refusal to rehire on or about March 29 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD June 1: It is concluded that the refusal to rehire Rule about June 1 was not improper. Although supposedly told by Young that he would not need a dispatch slip to return to the Project, Rule con- cededly doubted that he mentioned this to Bergsma. He recalled instead telling Bergsma, when asked how he wanted to come back, "As a union member and the whole bit." This answer would imply, Rule having told Bergsma in March that he would have "to have a dis- patch" to return and there being no credible evidence that Respondent since had learned otherwise, that rehire remained contingent upon Respondent's acceptance of a dispatch slip, recognitional language included. As earlier concluded in connection with the March 8 refusals to rehire, an employer properly can decline to hire in that circumstance, the union's not being legally entitled to representative status.24 CONCLUSIONS OF LAW By its discharges of Martin Kostelny and Lyle Teuscher on January 20, 1982, and its discharges of Ray- mond Jordan and Robert Rule on January 23, 1982, Re- spondent violated Section 8(a)(1) and (3) of the Act Respondent did not otherwise violate the Act as al- leged or contended On these findings of fact and conclusions of law and on .the entire record, I issue the following recommend- ed25 ORDER The Respondent, Fleur DuLac, a joint venture com- posed of Fred Sahadi and Fred Andrews, Campbell, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging or otherwise discriminating against any employee because of that employee's membership in or support of Carpenters Local Union 2035, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, or any other union. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2 Take the following affirmative action necessary to effectuate the policies of the Act. . . (a) Make whole Martin Kostelny, Lyle Teuscher, Ray- mond Jordan, and Robert Rule for any loss of earnings and other benefits suffered as a result of its unlawful dis- 24 Young's March 26 telegram and Roger's April 6 letter, both profess- ing to explain to Respondent the purpose of the dispatch slips, were of such ambiguity that Respondent's continued skepticism over the slips' re- cognitional language, as exemplified by Potts' April 13 letter to Roger, cannot be said to have been unreasonable 25 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended 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 pur- poses charge of them in 'January 1982, with interest on lost earnings, 26 and, if it has not already done so, and if such employment is still available on the Fleur DuLac Project, offer them immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously en- joyed. 2 7 - (b) If it has not offered reinstatement as prescribed in the preceding paragraph, and no longer can do so be- cause all substantially equivalent carpentry work on the Fleur DuLac Project has been completed, inform Kos- telny, Teuscher,' Jordan, and Rule, in writing, that they will be considered eligible for employment in the future at any of its projects, on a nondiscriminatory liasis, should they choose to apply for employment at any of them. (c) Preserve and, on 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 nec- essary to analyze the amounts of backpay due under the terms of this Order. (d) Post at any and all of its jobsites within the juris- diction of the above-named Union copies of the attached notice marked "Appendix." 25 Copies of the notice, on- forms provided by the Regional Director for Region 20, after being signed by an authorized representative of the Respondent, shall be posted by the Respondent immedi- ately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, of covered by any other material. (e) Send copies of the aforementioned notice, duly signed, by first-class United States' mail,' to Kostelny, Teuscher,' Jordan, and Rule, and to all other carpenters employed on the Project at any time from January 20 through January 23, 1982, at their last known addresses. (f) Notify the Regional Director in writing within 20, days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER RECOMMENDED that, except as other- wise decided, the complaint is dismissed. Backpay shall be computed in accordance with F W Woolworth Co, 90 NLRB 289 (1950) Interest shall be computed as prescribed in Florida Steel Corp, 231 NLRB 651 (1977) See generally Isis Plumbing Co, 138 NLRB 716 (1962) 27 Whether the offers to rehire made March 4, 1982, satisfied Respond- ent's obligation to offer reinstatement to those unlawfully discharged, and effected a tolling of backpay, is left to the compliance phase of this pro- ceeding 28 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 Na- tional Labor Relations' Board" shall read "Posted Pursuant • to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation-. al Labor Relations Board"