P.J. Gear & Sons, Inc.

P. J. GEAR & SONS, INC. P. J. Gear & Sons, Inc. and Daniel W. Patterson. Case -CA-16304 September 15, 1980 DECISION AND ORDER On April 18, 1980, Administrative Law Judge Abraham Frank issued the attached Decision in this proceeding. Thereafter, counsel for the Gener- al Counsel an filed exception and a supporting brief. ' The Board has considered the record and the at- tached Decision in light of the exception and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, 2 as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, P. J. Gear & Son, Inc., Everett, Massachusetts, its officers, agents, successors, and assigns, shall take I The date for filing exceptions to the Administrative Law Judge's De- cision was May 12, 1980. By letter of April 29, 1980, Respondent stated its intent to file exceptions and the possibility of its requiring an extension of time. This letter was sent by certified mail and received by the Board on May 8. No copy was sent to the General Counsel, as would be re- quired with respect to the actual filing of exceptions or of an extension of time for such filing. The General Counsel's single exception, duly served on Respondent,. was received by the Board on May 5 On May 8 Respondent again wrote the Board by certified letter and this time requested a 60-day extension. This request for an extension (not served on the General Counsel) was received by the Board on May 14, 2 days after the due date for exceptions, and was refused by the Executive Secretary's letter of May IS as untimely. Respondent then sent another letter by certified mail, which was dated May 20 and received on May 29, characterizing its earlier letter of April 29 as a request for extension of time to file This request was duly considered by the Board, including the fact that Respondent had been acting in its own behalf without benefit of counsel, and on August I. 1980, the following telegram was sent to Respondent, to the Charging Party, and to the Regional Director for Region I RE: P. J. GEAR & SON, INC., I-CA-16304 UPON FURTHER CONSIDERATION OF RESPONDENT'S REQUEST FOR A 60 DAY EXTENSION OF TIME TO FILE EXCEPTIONS, AND IN VIEW OF AN EXCEPTION HAVING BEEN FILED BY THE GENERAL COUNSEL, RESPONDENT IS HEREBY GRANTED 30 DAYS IN WHICH TO FILE CROSS-EXCEP- TIONS. DATED, WASHINGTON, D.C. AUG. 1, 1980. BY DI- RECTION OF THE BOARD: ROBERT VOLGER, ACTING EXECUTIVE SECRETARY Respondent has filed no response to this grant of 30 days in which to file cross-exceptions, which time had now expired. I The Administrative Law Judge inadvertently omitted from sec 2 of his recommended Order an affirmative order that Respondent, upon re- quest, bargain in good faith with United Brotherhood of Carpenters and Joiners of America, Local Union No. 218., with respect to the subcon- tracting of bargaining unit work, and the termination of employees and assignment of bargaining unit work to nonbargaining unit employees We have, therefore, added this provision to his recommended Order. 252 NLRB No. 28 the action set forth in the said recommended Order, as so modified: 1. Insert the following as paragraph 2(b) and re- letter the subsequent paragraphs accordingly: "(b) Upon request, bargain in good faith with United Brotherhood of Carpenters and Joiners of America, Local Union No. 218, with respect to the subcontracting of bargaining unit work, and the termination of employees and assignment of bar- gaining unit work to nonbargaining unit employ- ees." DECISION STATEMENT OF THE CASE ABRAHAM FRANK, Administrative Law Judge: The original charge in this case was filed on July 3, 1 9 7 9,' and the complaint, alleging violations of Section 8(a)( ), (3), and (5) of the Act, issued on August 16. The hearing was held on December 17 in Boston, Massachusetts. All briefs filed have been considered. 2 The questions at issue are whether Respondent unlaw- fully subcontracted work and denied employment to bar- gaining unit employees in violation of its contractual agreement and threatened to close down the job because of an employee's protected concerted activity. FINDINGS OF FACT AND CONCLUSIONS OF LAW A. Preliminary Findings and Conclusions Respondent, a Massachusetts corporation with its prin- cipal office and place of business at 361 Third Street, Ev- erett, Massachusetts, is a building contractor in the build- ing and construction industry. Respondent admits, and I find, that it is engaged in commerce within the meaning of Section 2(2), (6). and (7) of the Act. United Brotherhood of Carpenters and Joiners of America, Local Union No. 218, hereinafter called the Union, is a labor organization within the meaning of Sec- tion 2(5) of the Act. B. The Facts At all times material herein, William R. Gear was either the owner or manager of Respondent and an agent acting on its behalf. On or about May 16, John Gear oc- cupied the position of site supervisor and superintendent, and was a supervisor within the meaning of Section 2(11) of the Act. On November 27, 1978, Respondent entered into a col- lective-bargaining agreement with the Union for a unit of carpentry employees for a reroofing project at the Ever- All dates are in 1979, unless otherwise indicated. T2 he motion of General Counsel to correct the transcript in minor re- spects is granted. Subsequent to the hearing, the General Counsel also filed a motion to withdraw that part of G.C Exh. 4 which consists of registered receipt 614217 delivery dated November 23, and to reopen the record to substitute registered receipt 614217 and its envelope with claim check No 313113 on the ground o clerical error On January 23, 1980. I issued a Notice To Show Cause why the motion of the General Counsel should not be granted Insufficient cause having been shown, the motion of the General Counsel is granted 147 DECISIONS OF NATIONAL L.ABOR RELATIONS BOARD ett, Massachusetts, yard of the Massachusetts Bay Trans- portation Authority, hereinafter called MBTA. The work was in process prior to the execution of this agree- ment. The agreement provided that Respondent would not subcontract carpentry work "to be performed at the job site except to contractors who are parties to or shall be required to be parties to a collective-bargaining agree- ment with the Union." The agreement also provided that carpentry employees would become union members after 7 days. Daniel Patterson, a member of the Union, was em- ployed by Respondent for carpentry work on May 6 or 7. He was the Union's designated steward on the job. Three other union carpenters were also employed by Re- spondent: Louis Palmacci, Carey Hogan, and John Way- land. On May 16, Patterson observed five new men on the job preparing to put on shingles, carpenters' work. Pat- terson asked the men if they were union men and was told to see John Gear. Patterson approached John Gear and asked Gear what was going on, that the five men did not appear to be union men. Patterson told Gear that Patterson was going to call the business agent. Gear said, "Don't break my balls." Patterson said that he was not going to be caught in the middle. Gear then said, "Okay, you are, you're breaking my balls. So if that's the case, I'll get rid of you [pointing to Patterson]-then I'll get rid of them [carpenters who were on the job]-and all the laborers too. Now everybody will be off this job and it'll all be your fault." Patterson then called the union hall. From May 16-29 Patterson observed the new men on the job just about every day. The record shows that the five new employees ob- served by Patterson on the job in May were, in fact, em- ployees of Eagle Construction Company, a subcontractor who was not a party to the Union's collective-bargaining agreement., Eagles' employees remained on the job for about 2 weeks in May. Respondent also subcontracted roofing to Desmond Roofing Company during the last of May or early June. The Union struck Respondent on May 30 because Re- spondent was delinquent in the payment of fringe bene- fits. On June 11 Albert Greene, business agent for the Union and Walter Chipman, its financial secretary, met with William R. Gear and two representatives of MBTA, Robert Bessie and Robert O'Reagan. They dis- cussed the facts that Desmond, a nonunion contractor, was working his employees on a piece rate basis, and Re- spondent's failure to pay fringe benefits on the 10th of each month, as required by the contract. The strike ter- minated on June 12, when Respondent's overdue fringe benefits were paid. On June 13 Greene had another meeting with Bessie and Robert Kalin, MBTA liaison man for labor. Kalin directed Bessie to inform P. J. Gear that he had to work Gear testified that he signed the subcontract with Eagle sometime in September or October 1978, prior to the execution of his contract swith the Union At the request of the General Counsel, Gear produced a copy of the subcontract at the hearing, but did not offer it as an exhibit I find without merit General Counsel's contention that his testimony should be rejected, i part, because the subcontract with Eagle was not introduced into evidence. Gear is not an attorney and General Counsel had full op- portuniity to examine the subcontract and challenge its salidity. in harmony with the Union, or leave the premises. That morning Greene met with William Gear, Bessie, and Bernard Lavita, an MBTA representative. At this meet- ing the Desmond Roofing Company and the fringe bene- fit package were again discussed. Bessie told Gear that if he could not work in harmony with the Union he would have to leave the jobsite. Gear said, "I'll finish the job myself." Greene responded "Well, if you're going to finish it yourself, the second man on the job other than the foreman, will in fact have to be my steward." Article IX, section 11, of the contract provides that the steward will be the first carpenter recalled in the event of a total temporary layoff. On May 30 Respondent terminated Patterson and Wayland by mail. On the same day, Respondent in- formed Hogan and Palmacci verbally that they were laid off for lack of materials. Since that date none of the above-named employees has been employed by Respond- ent, and no union carpenters have been employed on Re- spondent's jobsite. William R. Gear testified that since June 12, he and his son performed carpentry work, assisted, to some extent, by laborers. Greene testified that he visited the jobsite many times in July and August and observed Gear and several employees, whom Greene did not recognize, ap- plying shingles. The employees responded negatively or not at all when questioned by Greene. There is evidence in the record that carpentry work was performed for Re- spondent by three or four employees, including William R. Gear, during the last week in August, the first week or two in September, and on September 10 and 13. Analysis and Final Conclusions of Law As indicated above, William R. Gear, who represented Respondent at the hearing, is not an attorney. He called no witnesses, and offered no competent documentary evidence. In his oral argument at the conclusion of the General Counsel's case, Gear confused various sections of the Act relating to the Board's jurisdiction over super- visors and independent contractors as employees with Respondent's responsibility as an employer in this case. Gear also misinterpreted the provisions of Section 8(b)(4) of the Act as forbidding the Union's strike of June 30 to compel Respondent to cease doing business with a sub- contractor pursuant to a contract which Respondent en- tered into prior to the execution of Respondent's con- tract with the Union. Following the close of the hearing, Gear submitted a letter in support of Respondent's posi- tion. The letter does not conform to Section 102.42 of the Rules and Regulations and Statements of Procedure, Series 8, as amended, with respect to the filing of a brief to the Administrative Law Judge in that there is no statement of service on the other parties to the case. Moreover, even accepting the letter as a brief, the argu- ments contained therein are largely irrelevant and imma- terial. Record facts are misstated. I find no merit in Re- spondent's arguments. I concluded that Respondent violated Section 8(a)(l) of the Act by John Gear's threat to discharge Daniel Patterson on May 16, the carpenters, the laborers, and everybody on the job, because of Patterson's expressed 148 1'. J GEAR & SONS, INC. intention to exercise his duty as a steward to inform the Union's business agent that unfamiliar employees were performing carpentry work for Respondent, thereby re- straining and coercing Patterson in his right to engage in union and protected concerted activity. I conclude that Respondent violated Section 8(a)(5) and (1) of the Act on and after May 16, by: (1) utilizing nonunion subcontractors for carpentry work in violation of its contractual agreement with the Union; (2) eliminat- ing all bargaining unit employees on May 30 by dis- charging and failing to recall them when work was avail- able on and after June 12 and assigning their work to nonbargaining unit employees without negotiating with the Union. Nor is Respondent's conduct defensible on the ground that Respondent signed a subcontract with the Eagle Construction prior to the execution of its contract with the Union. William R. Gear testified that he did not think it his business to tell the Union that Respondent had outstanding contracts for carpentry work at the time he agreed not to subcontract each work to nonunion sub- contractors. A collective-bargaining agreement under this statute contemplates that both parties have in good faith fixed the terms of industrial life under which the employees will work and be represented by a union of their choice. The very essence of this agreement is that neither party has entered into it with reservations or duplicity as to its obligations and responsibilities. An employer engages in a gross violation of its duty to bargain in good faith where it executes a collective-bargaining agreement with a union while concealing the existence of an outstanding subcontract in derogation of the agreement's provision against such subcontracting, and secretly plans or there- after interposes the prior subcontract to avoid its lawful contractual responsibility. A subcontract so intertwined with an employer's unfair labor practice cannot operate to the advantage of the violator of the Act, or to the dis- advantage of the employees. See, for an analogous situa- tion, J. I. Case Company v. N.L.R.B., 321 U.S. 332-336 (1958); citing National Licorice Company v. N.L.R.B., 309 U.S. 350 (1940). Accordingly, I conclude that Respond- ent's prior subcontract with Eagle Construction Compa- ny or any other nonunion subcontractor is not a defense to its refusal to adhere to the terms of the agreement signed with the Union on November 27, 1978. I concluded that Respondent violated Section 8(a)(3) and (1) of the Act by discharging Daniel Patterson, John Wayland, Louis Palmacci, and Carey Hogan on May 30, and failing to recall them at the termination of the strike on and after June 12, when work became available. On May 16 John Gear threatened to discharge Patter- son and all other employees on the job if Patterson noti- fied the Union that Eagle Construction Company was performing carpentry work for Respondent. On May 30 Respondent discharged Patterson and all carpentry unit employees represented by the Union. On June 12 and 13, Greene discussed with William Gear the presence of Desmond Roofing Company, a nonunion subcontractor, on the jobsite. Bessie told Gear that he would have to work in harmony with the Union or leave the jobsite. Gear stated that he would finish the job himself, and Greene pointed out that the second man on the job other than the foreman would have to be the steward. Gear made no reply. Thereafter, Respondent failed to recall Patterson or any other union employee when work became available, utilizing nonunion employees to finish the job. On these facts I find that in discharging Patter- son and other employees represented by the Union Re- spondent was motivated by a desire to rid itself of the Union, thereby discriminating against these employees to discourage union membership, and to restrain and coerce them in the exercise of their union and protected con- certed activity. The above unfair labor practices are unfair labor prac- tices within the meaning of Section 2(6) and (7) of the Act. The appropriate bargaining unit4 is: All carpenters, including shinglers, carpenter ap- prentices, carpenter erectors of scaffolding em- ployed by Respondent at its Everett, Massachusetts job site; but excluding all supervisors as defined in the Act. At all material times the Union has been, and is the ex- clusive bargaining representative of the employees in the above-described appropriate unit. ORDER 5 The Respondent, P. J. Gear & Son, Inc., Everett, Mas- sachusetts, its officers, agents, successors, and assigns shall: 1. Cease and desist from: (a) Interfering with, restraining, and coercing employ- ees by threatening to discharge employees because of the exercise by a union steward of his right to engage in union and protected concerted activity as a union ste- ward. (b) Discharging or otherwise discriminating against employees to discourage union membership. (c) Refusing to bargain with United Brotherhood of Carpenters and Joiners of America, Local Union No. 218, by: (1) utilizing nonunion subcontractors to perform carpentry work in the above-described bargaining unit in violation of a lawful collective-bargaining agreement and, (2) discharging bargaining unit employees and as- signing their work to nonbargaining unit employees without negotiating with the above-named labor organi- zation. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guar- anteed them in Section 7 of the Act. 6 ' My unit finding does not include carpentry employees notl enplocd or not shown as potential employees lf Respondent at imes mteri.ll herein. s In the esent no exceptions are filed as pro ided hb Sec 102 4 of Ihe Rules and Regnilatioln of the National I.abor Relations Hoard. the find. ings, conclusions and recommended ()rder hereit shall, a pror.lidCd in Sec 1012 48 of Ihe Rules and Regulations, be adopted h he oarld a.nd become its findings, conrlclusron and Order. and all obhjectlorn, thrt, shall he deemed aised for all purposes A broad order is necessary il esC of the cxtenl of Rsp irlderiltr unfair labor practices Ilkmottrr iAhi , Inc., 242 NL RH 1357 (197') 149 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer Daniel Patterson, Louis Palmacci, Carey Hogan, and John Wayland immediate and full reinstate- ment to their former positions, or if those positions no longer exist, to substantially equivalent positions at its rate they enjoyed, plus increases, at the time they were terminated or refused reinstatement, and without preju- dice to their seniority and other rights and privileges, and make them whole for all losses, plus interest, suf- fered by them as a result of the discrimination against them in the manner set forth by the Board in F. W. Woolworth Co., 90 NLRB 289 (1950); Florida Steel Corpo- ration, 231 NLRB 651 (1977). See, generally, Isis Plumb- ing & Heating Co., 138 NLRB 716 (1962). (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other docu- ments necessary and relevant to analyze and compute the amount of backpay due under this Order. (c) Post at jobsite at the Everett, Massachusetts, yard of the Massachusetts Bay Transportation Authority, copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Director for Region , after being duly signed by Re- spondent's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. In the event said project shall have terminated before compliance with this Order, Respondent shall mail to the last known address of each of the aforementioned discharged em- ployees a copy of said notice. (e) Notify the Regional Director for Region 1, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. ? In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant 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 WE WIL. NOT interfere with, restrain, or coerce our employees by threatening to discharge, because of the exercise by a union steward of his right to engage in union and protected concerted activity as a union steward. WE WILL. NOT discharge or otherwise discrimi- nate against our employees to discourage union membership. WE WILL NOT refuse to bargain with United Brotherhood of Carpenters and Joiners of America, Local Union No. 218 by utilizing nonunion subcon- tractors to perform carpentry work in the below-de- scribed bargaining unit in violation of a lawful col- lective-bargaining agreement, and by discharging bargaining unit employees and assigning their work to nonbargaining unit employees without negotiat- ing with the above-named labor organization. WE WILL offer Daniel Patterson, Louis Palmacci, Carey Hogan, and John Wayland immediate and full reinstatement to their former positions, or if those positions no longer exists, to substantially equivalent positions at the wage rate they enjoyed, plus increases, at the time they were terminated or refused reinstatement and without prejudice to their seniority and other rights and privileges, and make them whole with interest for all losses suffered by them as a result of our discrimination against them. WE WILL, upon request, bargain in good faith with United Brotherhood of Carpenters and Joiners of America, Local Union No. 218 with respect to the subcontracting of bargaining unit work and with respect to the termination of employees and assign- ment of bargaining unit work to nonbargaining unit employees. The appropriate unit is: All carpenters, including shinglers, carpenter ap- prentices and carpenter erectors of scaffolding employed by P. J. Gear & Son, Inc., at its jobsite at the Everett, Massachusetts yard of the Massa- chusetts Bay Transportation Authority; but ex- cluding all supervisors as defined in the National Labor Relations Act. P. J. GEAR & SON, INC. 150