Laborers Local 373 (Arrow Enterprises)

LABORERS LOCAL 373 (ARROW ENTERPRISES) 347 Laborers' International Union of North America, Local No. 373, AFL-CIO (Arrow Enterprises) and Charles G. Grodes. Case -6-CB-7014 2 December 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 6 August 1986 Administrative Law Judge James L. Rose issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filled 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. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Laborers' International - Union of North America, Local No. 373, AFL-CIO, Pittsburgh, Pennsylvania, its offi- cers, agents, and representatives, shall take the action set forth in the Order. 1 The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect . Standard Dry Wall Products, 91 NLRB 544 (1950), eafd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. There is an ambiguity in the first sentence in sec. II,B, of the judge's decision. It is more accurate to state that in the absence of a lawful exclu- sive hiring hall , agreement, there is little question that when a labor orga- nization causes or attempts to cause an employer not to hire an employee because of conduct protected by Sec, 7 of the Act, it violates Sec. 8(b)(2). Michael Poprik Esq., for the General Counsel. Stephen M. Schmerin, Esq., of Pittsburgh, Pennsylvania, for Respondent Local 373. DECISION STATEMENT OF THE CASE JAMES L. ROSE, Administrative Law Judge. This matter was tried before me on 9 June 1986, at Pittsburgh, Pennsylvania, on the General Counsel's complaint which alleged that the Respondent labor organization engaged in violations of Section 8(b)(l)(A) and (2) of the Labor Management Relations Act, 29 U.S.C. § 151 et seq., by attempting to cause and causing Arrow Enterprises to refuse employment to Charles G. Grodes, t the Charging Party, for reasons proscribed by the Act. The Respondent generally denied the allegations in the complaint and contends that none of its officers or agents engaged in any conduct violative of the Act with regard to the employment, of Grodes for Arrow Enterprises, On the record as a whole,2 including my observation of the witnesses, briefs, and arguments of counsel, I issue the following FINDINGS OF FACT AND CONCLUSIONS OF LAW I. JURISDICTION Arrow Enterprises (Arrow, the Employer, or the Company) is a partnership owned jointly by Stan R. and Bernadine Kraly. Arrow is engaged in the construction industry principally performing demolition, sandblasting, painting, excavation, and the like. Until 1 June 1985, Arrow had its principal office and place of business in Pennsylvania, but since that date has operated out of Stewart, Florida. Arrow continues to perform services in the construction industry in Pennsylvania and Massachu- setts. The undisputed evidence of record shows that Arrow performed services under a subcontract with Na-Con Services, Inc. of Norcross, Georgia, from July through October 1985 in the amount of '$52,178, at a project in Massachusetts. Further, the evidence shows, among other things, that Arrow performed services from Janu- ary through March 1986 in the amount of $90,000, under a subcontract from Tedco Construction Company of Carnegie, Pennsylvania, to do demolition work in Brid- geville, Pennsylvania (the project at which the events in- volved in this dispute occurred). The undisputed evidence in this matter establishes that Arrow Enterprises is an employer engaged in interstate commerce in that, at a minimum, it performed services in excess of $50,000 per annum directly in States other than the State of its principal office. I therefore find and con- clude that Arrow Enterprises is an employer engaged in interstate commerce within the meaning of Section 2(6) and (7) of the Act. Laborers' International Union of North America, Local No. 373, AFL-CIO (the Respondent or, the Union), is admitted to be, and I find is,, a labor organiza- tion within the meaning of Section 2(5) of the Act.. The evidence further establishes that in 1986, at least, mem- bers of the Union worked for Arrow Enterprises, and in connection with such employment were represented by the Union. Accordingly, I conclude that the Union is, for purposes of this case, a labor organization represent- ing employees engaged in interstate commerce, and that the Board has jurisdiction over the alleged unfair labor practices. 1 The caption is amended to reflect an amendment to the complaint made at the hearing deleting any reference to One-Way Welding. 2 Counsel for the General Counsel moved to correct the transcript. Without objection, the transcript is corrected as indicated at Appendix B [omitted from publication]. 282 NLRB No. 53 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Facts In late January 1986,3 Arrow began work as a subcon- tractor for Tedco in Bridgeville, Pennsylvania, to do demolition work. The project lasted about 6 weeks. According to the credible testimony of Stan R. Kraly, a co-owner and field superintendent for Arrow, on 22 January Charles G. Grodes called his office and asked for a job. Kraly told Grodes to come to the project, that he would talk to him. -Grodes arrived about 11 p.m. that evening. Kraly interrogated Grodes about his experience with the kind of work Arrow was doing. Kraly testified that Grodes gave the right answers , and then, I said, okay, well, how do you get along with the union, and John and everyone meaning-I meant John McManus the Union's, president). And, he said, well, we've had our problems but everything's okay. So, as -soon as he said that, I decided I'd better talk to the union before I hired him.4 Kraly went on to testify that the next morning he called McManus, telling him that Grodes' had come out looking for a job and that he would like to hire Grodes. Kraly testified, "And, John said, no way, no way, he's problems, he's got charges against the Local." Although Arrow did not have a contract with the Union, Kraly nevertheless called the Union, out of cour- tesy and also because the general contractor stated that he did not want any union problems. Also, apparently, a related company owned or operated by Kraly does have a contract with the Union, -and in the past Kraly has op- erated union projects and, even,on the project here, paid union wages. Kraly testified that he refused to hire Grodes follow- ing the conversation with McManus because "I was ex- posing myself to problems if I hired him that I really didn't feel I, could afford, and the customers wouldn't tolerate." Thereafter Kraly told Grodes he ,would not be hired because of problems with the Union, which Grodes revealed to Kraly as being "some sort of charges." 'Thereafter Kraly in fact hired other laborers. Then on the 'night of 14 February Grodes came back, asked how the job was going, and asked if Kraly needed any help that night-that he was willing to work. The union stew- ard, James O'Leary, took Kraly aside and "he said, basi- cally, that I really ought to think twice about it [hiring Grodes] ° because Grodes is a problem and he gets in fights on the job and he'll steal things and he's just a problem." Although Kraly said at the time that he could not hire Grodes because he had not brought his checkbook, in fact he testified that he did not hire Grodes because he could tell that in the intervening 2 weeks there had been no change in the Union's attitude toward Grodes. McManus testified, denying the statement attributed to him by Kraly, although admitting that Kraly in fact a All dates are in 1986 unless otherwise indicated. a Though Grodes' version of this discussion differs in some respects, such are not material, and in any event, I rely on the testimony of Kraly in making the findings herein. called him concerning Grodes. O'Leary similarly denied the substance of Kraly's testimony concerning Grodes, but did testify generally to the conversation. In evidence is a charge, dated 9 December 1985, by Grodes against McManus in connection with the way McManus, as president, conducted a union meeting on 3 December 1985. Although the Union does operate a hiring hall, it is not exclusive. It is permissible for members to solicit and obtain their own employment. Grodes was at all times material a member in good standing of the Union. B. Analysis and Concluding Findings There is little question that when a labor organization causes, or attempts to cause an employer not to hire an employee, it violates Section 8(`X2) of the Act, absent a lawful exclusive hiring hall agreement or practice. Car- penters Local 1066 (Bertram Construction Co.), 272 NLRB 539 (1984). Further, it is clear that dissident intraunion activity, such as filing charges against a local's president, is protected by Section 7 of the Act and retaliation by union officials against a member for having engaged in such activity is violative of Section 8(b)(1)(A). See, e.g., Glenn Machine Works, 277 NLRB 658 (1985). For the Union to cause, or attempt to cause, an em- ployer not to hire Grodes was a violation of Section 8(b)(2), and for the Union to have engaged in such activ- ity in order to retaliate against him because he filed in- traunion charges necessarily was violative of Section 8(b)(1)(A). These legal principles are well established. The only question of substance in this case is whether McManus told Kraly, in effect, not to hire Grodes, and why. Notwithstanding McManus' disclaimer, I conclude he suggested to Kraly not to lure Grodes because Grodes had filed charges. I found Kraly's demeanor to be positive. His testimony was straightforward, without evasiveness or equivoca- tion, and so far as can be determined from this record, he was a neutral and unbiased witness. Comparing Kraly's positive demeanor with McManus', I conclude that Kraly was more believable and that their discussion oc-' curred in substance as testified to by Kraly. I, specifically discredit McManus' denial. Subsequent to the events in this case, Kraly and the Union had some kind of a dispute involving payments to a fridge benefit fund. Nevertheless, there is nothing in the examination of Kraly, or the event, which would suggest to me that Kraly did not give honest and candid testimony with regard to the events of this case. I therefore believe and conclude that about 23 Janu- ary, on inquiry by Kraly, McManus told him not to hire Grodes because "he's problems, he's got charges against the local." In addition, I find that Kraly's version of his conversa- tion about 14 February with O'Leary, involving hiring Grodes, was substantially as testified to by Kraly. At the time, O'Leary was an employee but was also an agent of the Union in that he was the job steward. Thus, to the extent O'Leary indicated to Kraly that Grodes should not be hired, he was acting as an agent for the Union LABORERS LOCAL 373 (ARROW ENTERPRISES) 349 and at least gave Kraly to believe that the Union's-posi- tion with regard to Grodes had not changed. In ,sum, I conclude that when the opportunity arose, the Union, speaking through its president in the first in- stance, and subsequently the job steward, attempted to cause, and in fact did cause Arrow not to hire Charles Grodes because Grodes had engaged in activity protect- ed by Section 7 of the Act. I conclude that the activity engaged in by the Union with regard to the employment of Grodes in January and February 1986 was violative of Section 8(bXl)(A) and (2) of the Act, and an appropriate remedy will be recommended. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices found above, occurring in connection with the Union's representation of employees of employers engaged in interstate commerce, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow thereof within- the meaning of Section 2(6) and (7) of the Act. IV. THE REMEDY Having concluded that the Respondent Union attempt- ed to cause and caused Charles G. Grodes not to be hired by Arrow Enterprises, I shall recommend that the Respondent notify Arrow in writing, with a copy to Grodes, that it has no objection' to the hiring of Grodes and that it requests Grodes be hired. The Respondent shall be ordered to make whole Grodes for any loss of wages or other rights, and benefits he may have suffered as a result of its action, until Grodes has been hired by Arrow or obtains substantially equivalent employment elsewhere, in accordance with the formula set forth in F. HW Woolworth Co., 90 NLRB 289 (1950), with interest as provided for in Florida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed5 have engaged in activity protected by Section 7 of the Act. (c) In any like or related manner restraining or coerc- ing employees in the exercise _ of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessarey to effectuate the policies of the Act. (a) Make whole Charles G. Grodes for any losses of wages or other rights and benefits that he may have suf- fered as a result of the Respondent's action with refer- ence to his employment for Arrow Enterprises, com- mencing 23 January 1986, in the manner set forth in the remedy section above. (b) Notify Arrow that it has no objection to its hiring Charles G. Grodes and requests that Arrow do so. (c) Post at its Local 373 offices and meeting halls copies of the attached notice marked "Appendix."6 Copies of the notice, on forms provided by the Regional Director for Region 6, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon 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 Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Furnish the Regional Director sufficient signed copies of the attached notice for posting at the premises and projects of Arrow Enterprises, if it is willing. (e) Notify the Regional Director for Region 6, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply. For the pur- poses of determining or securing compliance with this Order, the Board, or any of its duly authorized repre- sentatives, may obtain discovery from the Respondent, its officers, agents, and representatives, or assigns, or any other person having knowledge concerning any compli- ance matter, in the manner provided by the Federal Rules of Civil Procedure. Such discovery shall be con- ducted under the supervision of the United States court of appeals enforcing this Order 'and may be had upon any matter reasonably related to compliance with this Order, as enforced by the court. ORDER The Respondent, Laborers' International Union of North America, Local No. 373, AFL-CIO, its officers, agents, and representatives, shall 1. Cease and desist from (a) Restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act, which includes the right to file intraunion charges against officers of the Union. (b) Causing or attempting to cause any employer to discriminate against potential employees because they 8 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. B 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United 'States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT restrain or coerce our members in the exercise of rights guaranteed them by Section 7 of the National Labor Relations Act, including the filing of in- traunion charges against officers of the Local Union. WE WILL NOT cause or attempt to cause any employer not to hire or otherwise discriminate against our mem- bers because they engage in any activity protected by Section 7 of the Act. WE WILL NOT in any like or related manner restrain or coerce our members in the exercise of the rights guaran- teed them by Section 7 of the National Labor Relations Act. WE WILL make whole Charles G. Grodes for any losses of wages or other rights and benefits he may have suffered as a result of our causing Arrow Enterprises not to hire him on 23 January 1986, with interest, until, he has been hired by Arrow or obtains substantially equiva- lent employment elsewhere. - WE WILL notify Arrow Enterprises, with a copy to Charles G. Grodes, that we have no objection to its hiring Charles G. Grodes and we request that it do so. LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, LocAL No. 373, AFL- CIO