Laborers Local 332 (D'Angelo Brothers, Inc.)

1036 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Laborers Local 332 (D'Angelo Brothers, Inc.) and David Foster. Case 4-CB-5652 July 24, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On March 3, 1989, Administrative Law Judge Thomas A. Ricci issued the attached decision. The Respondent and the General Counsel filed excep- tions and supporting briefs. 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 modified2 and set forth in full below. AMENDED CONCLUSIONS OF LAW Substitute the following for Conclusion of Law 1. "1. By informing Foster that he could not work because he was not a member of the Respondent, and by causing D'Angelo Brothers, Inc., to dis- charge Foster because he was not a member of the Respondent, the Respondent has violated and is violating Section 8(b)(1)(A) and (2) of the Act." ORDER The National Labor Relations Board orders that the Respondent, Laborers Local 332, Philadelphia, Pennsylvania, its officers, agents, and representa- tives, shall 1. Cease and desist from (a) Informing any employee that he cannot work because he is not a member of the Respondent, and ' 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), enfd. 188 F.2d 362 (3d Car 1951). We have carefully examined the record and find no basis for reversing the findings. In part III, at par. 13, the judge inadvertently referred to Local 332 as Local 420. 2 We grant the General Counsel's exceptions pertaining to omissions of standard language in the judge's recommended Order and notice. We shall also provide the customary "in any like or related" injunctive lan- guage in the recommended Order and notice . Finally, we shall conform the judge's Conclusions of Law, recommended Order, and notice with his findings. The judge did not recommend a reinstatement order because the Em- ployer had offered reinstatement. Foster declined the offer because he had found employment elsewhere. The judge's recommended make- whole remedy should therefore run only from the date of discharge until the reinstatement offer. Because the record is unclear when the offer of reinstatement was made, we leave to the compliance stage of the pro- ceeding that determination. causing D'Angelo Brothers, Inc., or any other em- ployer, to discharge any employee for the sole reason that he is not a member of the Respondent. (b) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Notify D'Angelo Brothers, Inc., in writing, and furnish a copy of such notification to David Foster, that it has no objection to his employment in any job assignment. (b) Make whole David Foster for any loss of earnings and other benefits he may have suffered because of the Respondent having caused him to be discharged from his regular employment, with in- terest as provided in the judge's recommended Order. (c) Post at its offices and meeting halls copies of the attached notice marked "Appendix."3 Copies of the notice, on forms provided by the Regional Director for Region 4, after being signed by the Respondent Union's authorized representatives, shall be posted by the Respondent Union immedi- ately upon receipt and maintained for 60 consecu- tive days in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent Union to ensure that the notices are not altered, de- faced, or covered by any other material. (d) Forward to the Regional Director for Region 4 signed copies of the notice for posting by D'An- gelo Brothers, Inc., at its Philadelphia, Pennsylva- nia office and jobsites, if it is willing. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. s 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 AND MEMBERS 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. WE WILL NOT inform any employee that he cannot work because he is not a member of Labor- 295 NLRB No. 116 LABORERS LOCAL 332 (D'ANGELO BROS.) ers Local 332, or cause D'Angelo Brothers, Inc., or any other employer, to discharge any employee for the sole reason that he is not a member of Laborers Local 332. WE WILL NOT in any like or related manner re- strain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL notify D'Angelo Brothers , Inc., in writing, and furnish a copy of such notification to David Foster, that we have no objection to his em- ployment in any job assignment. WE WILL make whole David Foster for any loss of earnings and other benefits he may have suffered because of our having caused him to be discharged from his regular employment, with interest. LABORERS LOCAL 332 Susan Stahl, Esq., for the General Counsel. Marilyn Monaco and Ronald White, Esqs. (White, McClen- nan & Singley), of Philadelphia, Pennsylvania, for the Respondent. DECISION STATEMENT OF THE CASE THOMAS A. Ricci, Administrative Law Judge. A hear- ing in this proceeding was held at Philadelphia, Pennsyl- vania, on December 8, 1988, on complaint of the General Counsel against Laborers Local 332 (the Respondent). The complaint issued on July 29, 1988, upon a charge filed on June 15, 1988, by David Foster, an individual (the Charging Party). The sole issue presented is whether the record evidence is sufficient to support the allegation that the Respondent Union caused the discharge of the Charging Party from his employment because he was not a member of the Respondent Union, and thereby violat- ed Section 8(b)(1) and (2) of the Act. Briefs were filed by the General Counsel and the Respondent. Upon the entire record and from my observation of the witnesses I make the following FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER D'Angelo Brothers, Inc., the employer involved in this case, is a Pennsylvania corporation engaged in commer- cial building construction with its principal place of busi- ness in Philadelphia. During the 1-year period preceding issuance of the complaint in the course of its business op- erations this company purchased and received goods and materials valued in excess of $50,000 directly from sup- pliers outside the State of Pennsylvania. I find that this employer is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED I find that Laborers Local 332 is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICE 1037 This is a very simple case. David Foster, the Charging Party, works in the construction industry as a laborer, and has been for 8 years a member of Laborers Local 420 in Philadelphia. In June 1988 Harold Anderson, a foreman on a construction job being run by D'Angelo Brothers, Inc., needed laborers and asked his then em- ployees to help him find some others . Somebody tele- phoned Foster, who came to see Anderson on the job. Anderson told Foster he would be considered , and that same day telephoned him at home, asking him to report for work the next morning. Foster came the next day at 7 a.m., and worked all day . The next morning, when he arrived for work, he was fired, his paycheck for the pre- vious day was all ready upon his early arrival. On this jobsite, where the Employer had people work- ing from February to September 1988 when the job fin- ished, the laborers were practically all members of La- borers Local 332 and Laborers Local 57. There is no evidence on this record that there was any collective- bargaining contract in effect between the Company and either of these two locals that applied to this work project. One of the laborer employees, David Pellic- ciotti, was a member of Local 332 and its steward on the job. He testified that among his duties as steward "I check union cards . . . . If there [is] a new face on the job, I just ask him for his union card and then I write it down in my book and then make sure he's paid up There is a conflict in testimony between Foster and Pellicciotti as to what was said when the steward asked to see the man's union card. We start with the critical part of Pellicciotti's story: "I saw Mr. Foster . . . . And I asked him if he was a laborer and he said yes ... . and I says `Can I see your union card?' . . . . and he says `yeah'. So I look at the union book and I says, 'I see you're out of 420.' and he says, 'Yes.' . . . Mr . Anderson was about 8 or 10 feet away from us . . . . so I walked over to Mr. Anderson . And I said 'I would appreciate it next time if you would let me get the guys on the job because it kinda of makes me look good and there's a lot of guys down our hall who are out of work' .... I said, 'well, he's out of 4202" Foster's testimony is different. He recalled the steward asking for his union card, and that his answer was that he was from Local 420. "And he said no, you can't work on this job, if you're a laborer 420." At this point Pellic- ciotti went to the foreman and the two returned to Foster. Foster's testimony continues: "The foreman say, 'You from 420?': He said, 'your local guys are cutting me in court': And he said, 'I'll probably get in trouble if I let you work here.' 'So he told me to come the next day and he would see what he could do."' When Foster came to work the next morning, as he testified, "They told me they couldn't use me no more, because I was a laborer from 420." The foreman, Anderson, testified as follows: Denny [Pellicciotti] approached me to inform me that he was in 420 . . . . I realized that it was the 1038 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD same union that I had a lawsuit with D 'Angelo Brothers, and I asked Mr. Foster, like 'you should have told me. You're going to get me in a lot of trouble,' . . . and then I suggested that he try get- ting in 332 because he liked doing our type of work, and he just said that he had tried and it didn't work. Q. You told Mr. Foster to come back the next day? A. I did. Q. Did you tell him that he would be employed the next day? A. Yes, I did. Well, I told him to come back. that he had a job. Implying that he would be employed. Anderson also testified that later that evening, when he reported all this to his superior, he was told "that we had people from another job coming, that had been our specialists in underpinning, and we wouldn't need Mr. Foster and that he should be laid off." The next morning Anderson discharged Foster with the statement, "that we didn't have anything for him." As set out above, a few days later the Company called Foster back to work, but he had already found other em- ployment. I start with Anderson's testimony. He clearly tried to create the impression that his annoyance with Foster being a Local 420 member was because of some sort of litigation going on between the company and that par- ticular union. The next day he shifted ground and told the man he was fired because he was not needed. This last statement-repeated at the hearing by saying Foster was let go because others were being employed in his place-is not true. If in fact Foster was to be used only 1 day on this job, Anderson would hardly have hired him at all, at least he would have told him about that short term when he came. Moreover , why have that man report to work the next day if he really was to be let go? And finally, only a few days later, Anderson called Foster back to work. Anderson was not a credible wit- ness and, on this record. I cannot find in fact that Foster was discharged for reasons apart from Pellicciotti's talk with Anderson at the end of Foster's first day at work. As to the conflict in testimony between Foster and the steward, I credit Foster. Against Anderson's direct testi- mony that Pellicciotti told him Foster was "in 420," the witness equivocated, first saying, "I didn't point it out specifically," and then adding that it was only after An- derson told him that Foster was "from 332," that he cor- rected the foreman. It was Pellicciotti's admitted responsibility to see to it that members of his local, and Local 57, worked on this job, and not other people. That is why he asked to see Foster's union card in the first place . He also admitted telling the foreman he should not have hired people from other local unions. With this overall picture, how can I not believe Foster's statement that Pellicciotti told him straight out that he could not work on this job? I do not know the exact words the steward used when first talk- ing to Anderson, but the first thing out of the foreman's mouth when he came to Foster was that "he would get in trouble if I let you work here." Obviously the ideas then being exchanged between Anderson and Pellicciotti was Foster remaining or not remaining on the job. The only rational conclusion I can draw from this total record is that Pellicciotti told Anderson that Foster should not work here because he was not a member of Local 420, and therefore that the Company must fire him summarily because the steward had told him that. I find that by telling Foster that he could not work on this job because he was a member of Laborers Local 420, Pellicciotti, on behalf of the Respondent Local, vio- lated Section 8(b)(1)(A) of the Act. I also find that caus- ing the employer to discharge Foster on June 7, for the reason that he was not a member of the Respondent Local, the Respondent violated Section 8(b)(2) of the Act. IV. THE REMEDY The Respondent must be ordered to cease and desist from again committing the unfair labor practice here found. It must also be ordered to notify D'Angelo Broth- ers, Inc., that it has no objection to its rehiring of David Foster. The General Counsel's suggestion that the Re- spondent also be ordered to reinstate Foster would not be appropriate now because Foster was in fact offered reinstatement but has turned it down. But the Respond- ent must be ordered to make whole Foster of any loss of pay he may have suffered. V. THE EFFECT OF THE UNFAIR LABOR PRACTICE ON COMMERCE The activity of the Respondent set out in section III, above, occurring in connection with the operations of D'Angelo Brothers, Inc., have a close, intimate, and sub- stantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. By demanding that D'Angelo Brothers, Inc. dis- charge David Foster because he was not a member of the Respondent Local, and by causing that company to discharge Foster, the Respondent has violated and is vio- lating Section 8(b)(1)(A) and (2) of the Act. 2. The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.]