Belfance Electric

National Labor Relations Board - Board Decisions

Dec 13, 1995

319 N.L.R.B. 945 (N.L.R.B. 1995)

945
319 NLRB No. 128
BELFANCE ELECTRIC
1 The General Counsel has excepted to some of the judge’s credi-
bility findings. 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 Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
2 In light of the General Counsel’s exception, we will strike Ap-
pendix A from the judge’s decision—apparent excerpts from the
International Brotherhood of Electrical Workers’ ‘‘salting manual.’’
This material was not submitted in evidence, and it is not otherwise
appropriately part of the record in the circumstances of this case.
Belfance Electric, Inc. and International Brother-
hood of Electrical Workers, Local 166, AFL–
CIO. Case 3–CA–18853
December 13, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS COHEN
AND TRUESDALE
On June 22, 1995, Administrative Law Judge Ray-
mond P. Green issued the attached decision. The Gen-
eral Counsel filed exceptions and a supporting brief,
and the Respondent filed a brief answering the General
Counsel’s exceptions.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.2
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Alfred E. Norek, Esq., for the General Counsel.
William E. Lorman, Esq., for the Respondent.
Robert Shutter Jr., for the Charging Party.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This case
was tried in Albany, New York, on May 8, 1995. The charge
was filed on September 22, 1994, and the complaint was
issued on October 20, 1994. The complaint alleges that the
Respondent refused to hire the employees listed below be-
cause they were members of the Union.
Mike Basso Thomas Letendre
Henry Crobok Dave Saunders
Maurice Goyette Robert Shutter
Mike Herrington Steve Zadrozny
Allen Herzog
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed, I make the following
FINDINGS OF FACT
I. JURISDICTION
The company is a New York corporation, engaged in the
business of electrical contracting and it has its principal place
of business in Amsterdam, New York. The complaint alleges
and the answer admits that during the past 12 months, the
Company provided services valued in excess of $50,000 to
other enterprises directly engaged in interstate commerce, in-
cluding Northland Associates, Inc. Based thereon, I find that
the Company meets the Board’s indirect outflow standards
for asserting jurisdiction and that it is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act. At the hearing, the Company admitted and I find
that the Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The locus of the transactions involved in this case are in
Amsterdam, New York, where a Super K-Mart was being
constructed. The original electrical subcontractor for this
project was a company called Radac. At some point in July
1994, because Radac could not obtain enough manpower,
Valley Electric was engaged by the General Contractor to do
some electrical work as the construction was reaching com-
pletion. Valley Electric was owned by two men, David
Belfance and Joseph LePlant, and they employed a crew of
around 12 people to do electrical work at the site.
In August 1994, the two partners of Valley decided to split
up and Belfance Electric was formed. Its first job was doing
electrical work at the Super K-Mart site and it commenced
operations at the site (and as a company) on August 5, 1995.
As part of the split, Belfance Electric hired some of the em-
ployees previously employed by Valley, these being, David
Mead, Ed Dunscombe, Bob Hoyt, Kevin Bagdan, Orlando
Intelisano, Randy Hirschfield, Ken Zyzes, and Robert Zyzes.
Other employees of Valley remained with that company and
it continued to work at the site also. Of the group of employ-
ees hired by Belfance, Robert and Ken Zyzes are members
of the Union and Bagdan is a member of the IUE. This,
however, may not have been known to the Employer.
On Saturday, August 6, 1994, Robert Shutter, a union or-
ganizer, came to the jobsite with the group of eight other
people who are alleged to have been unlawfully refused em-
ployment. The group included Maurice Goyette who was an
assistant business agent. The other men were members of
Local 166, all of whom were journeymen, with the exception
of Mike Basso, who was at the time, a fourth year appren-
tice. In any event, Shutter, acting as spokesman for the
group, eventually wound up speaking with Dave Belfance.
According to Shutter, he asked for employment for himself
and the other men, and was told by Belfance to write down,
on a piece of paper, the names, phone numbers, and past ex-
perience of the men. There was no discussion about what if
any jobs were available; nor was there any discussion about
pay rates or about any other terms of employment. (Except
that Shutter states that he said that he wanted to work at
nights and on weekends.) Before leaving the site, the paper
946 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Shutter acknowledged that Local 166 adopted a ‘‘salting’’ resolu-
tion that permits the Local’s members to accept jobs at nonunion
contractors on condition that they must engage in union organizing
activity and also that they must leave the company’s employ imme-
diately upon notification by the Union.
(G.C. Exh. 2) was filled out and left with Dave Belfance.
There is no dispute that Belfance never contacted any of the
people on this list for jobs, There is also no dispute that
these individuals were complete strangers to Belfance prior
to their appearance at the jobsite on August 6.
Shutter testified that he and the other members went to the
jobsite on August 6, seeking employment and brought their
tools ready to start immediately. He also states that the group
went to the site pursuant to the IBEW’s salting program,
which has been previously described by me in Sullivan Elec-
tric Company and Consolidated Electrical Service Inc.,
JD(NY)–11–95. Since Local 166 as part of the IBEW has
adopted the salting program and resolutions, I am attaching
hereto as Appendix A (omitted from publication), portions of
the IBEW’s salting manual.1
On Saturday, August 6, the Company had eight people on
the job, including the two Zyzes brothers, who as noted
above, were members of Local 166. On August 8, 1994, the
Company hired Tom Billington, essentially as an electrician’s
helper at $20 per hour. This person was Belfance’s uncle.
According to Ken Zyzes, on or about Monday, August 8,
he asked Belfance if he needed anyone else to work. He
states that when Belfance said yes, Zyzes recommended
Howard McDonald, who was a coworker with Zyzes at Gen-
eral Electric. Belfance agreed to hire McDonald based on
Zyzes’ recommendation and he started work, as an elec-
trician, on August 9 at $20 per hour. Belfance testified that
he had spoke to Zyzes about this person before August 6 and
had agreed to put him to work when he was available. He
states that he decided to hire McDonald because he trusted
Zyzes who had previously recommended the hire of his
brother and Bagdan, both of whom turned out to be good
workers.
On August 15, the Company hired David DeForest who is
a cousin-in-law of Belfance. He was hired as a helper and
was paid off the books. DeForest worked 4 days through Au-
gust 18.
On August 16, the Company hired Mark Nightingale and
Richard Davis and listed them as subcontractors. Belfance
testified that he engaged these two men because they both
worked for Mark Nightingale’s father who is an electrical
contractor in Amsterdam with whom he has had business
dealings. Mark Nightingale worked until August 26 and
Davis worked until August 31.
On August 18, Vincent Daly was essentially hired off the
street. He was hired as an electrician and agreed to work for
$12 per hour. He worked 11 days until September 1, 1994.
In this regard, Daly was the only electrician who came in as
a total stranger to Belfance. (Although this record does not
contain the wage rates normally paid for IBEW electricians,
I suspect that they are far higher than $12 per hour.)
Mark Brady was hired on August 23 as an electrician at
$15 per hour. Belfance testified that Brady was hired solely
to put in the controls for the fire extinguishing system (a job
that apparently requires some degree of specialization even
for a journeyman), and that he came recommended by David
Mead who knew him. Brady worked 10 days up until Sep-
tember 6, 1994.
On August 25, Floyd Lepper was hired and, on August 29,
Ken Gilligan was hired. Belfance states that Lepper is a
member of his church and that he is an electrical contractor.
He states that Gilligan, who is a college student, came along
with Lepper and that he worked as a helper at $10 per hour.
Lepper worked 6 days and his last day was on September
7, 1994. Gilligan’s last day was on September 6, 1994.
The largest number of people that the Company had work-
ing for it was on August 30 when there were 12 people on
the Super K-Mart site. By September 2, 1994, the number
was down to seven and, by September 6, only Mead and
Hoyt remained at work. The Company’s involvement at this
site ended on September 30, 1994. At the current time,
Belfance is the only person employed by the Company, with
Mead and Hoyt on temporary layoff status. Belfance indi-
cated that he expects to obtain some work in the near future
whereupon Belfance Electric will resume operations.
Analysis
The General Counsel’s case is based on the fact that (1)
on August 6, 1994, a group of nine union members showed
up at the jobsite asking for employment; (2) they left their
names, phone numbers, and prior job experience; (3) they
were not interviewed or hired; (4) and other people were
hired thereafter.
Whether or not this evidence is sufficient to make out a
prima facie case, the Employer, in my opinion, has presented
sufficient evidence in accordance with Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), to rebut any contention of ille-
gal motivation in relation to his refusal to hire Local 166
members.
The Employer had just commenced operations as a busi-
ness on August 5, 1995, and employed a group of people to
do electrical work at the K-Mart site. When the union people
showed up on Saturday, August 6, Belfance, as a new com-
pany, had been working at the site for just 1 day. The evi-
dence shows that despite Shutter’s assertion that his group
was ready to start work that day, there is no evidence that
Belfance could have hired this group of electricians at that
time.
It is true that after August 6, 1994, Belfance hired new
employees for relatively short periods of time until Septem-
ber 1994. But with the exception of Vincent Daly, all of
these people either were relatives, neighbors, friends, or peo-
ple with whom Belfance had previous business dealings. The
only person that Belfance hired who came in ‘‘off the street’’
was Daly who agreed to work as an electrician at $12 per
hour.
In my opinion, the evidence is insufficient to show that
Belfance made his hiring decisions based on union-related
considerations. Rather, the evidence shows that the people he
decided to hire were friends, relatives, and business acquaint-
ances instead of another group of people who were complete
strangers to him. Such a motivation is hardly irrational and
is, in my opinion, consistent with human nature.
947BELFANCE ELECTRIC
2 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
National 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.’’
CONCLUSION OF LAW
The Company has not violated the Act in any manner en-
compassed by the complaint.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The complaint is dismissed.