Brand Mid-Atlantic, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1991

304 N.L.R.B. 853 (N.L.R.B. 1991)

853
304 NLRB No. 110
BRAND MID-ATLANTIC, INC.
1 On August 10, 1990, Administrative Law Judge D. Barry Morris issued
the attached decision. The Respondent filed exceptions and supporting brief
and a brief in reply to the General Counsel’s exceptions. The General Counsel
filed exceptions and supporting brief and a brief in reply to the Respondent’s
exceptions.
The National Labor Relations Board has delegated its authority in this pro-
ceeding to a three-member panel.
2 The judge found, and we agree, that the Union violated Sec. 8(b)(1)(A)
of the Act by threatening, through its business agent, Fitzgerald, that Vodopia
would not work again in the Local. The judge also found, and we agree, that
the Union did not violate Sec. 8(b)(1)(A) by refusing to refer Vodopia from
March 10 to 14, 1988, and that Respondent Brand Mid-Atlantic did not violate
Sec. 8(a)(3) by refusing to hire Vodopia between late April and May 25, 1988,
because he had filed internal union charges and because he engaged in dis-
sident union activities. Accordingly, we dismiss these allegations of the com-
plaint.
3 We agree with the judge, for the reasons stated by him, that NPS II was
not a legal successor to NPS I and that at all times relevant there was no
agreement in effect between the Union and NPS II that required the Union
to be the exclusive source of referrals to the Unit 6 project. In this regard,
we note that members worked at two projects for NPS II. The first involved
work at Unit 6 itself; the second project, the ‘‘tank farm’’ or ‘‘oil field’’
project involved maintenance work at the tank farm approximately a quarter
of a mile from Unit 6. As noted below, the projects were separate and distinct
and there were no transfers between the two projects.
4 The consolidated amended complaint alleges that the Union operated an
exclusive hiring hall and that it violated Sec. 8(b)(1)(A) and (2) by refusing
to refer Kelly ‘‘notwithstanding that, because Kelly was not provided the 30-
day statutory grace period, he was not delinquent in the payment of the Union
initiation fee and dues required by Respondent Union for referral to NPS.’’
Although we find, as set out below, that the Union violated Sec. 8(b)(1)(A)
under a different theory than that set out in the complaint, the allegations of
the consolidated amended complaint put in issue the same issues which we
address below, i.e., whether the Union had a fiduciary duty to inform Kelly
how he could fulfill his financial obligations and to give Kelly an adequate
period of time to meet those obligations before it refused to refer him for em-
ployment, and whether the Union had a duty to refer him for employment.
Thus, we find that the theory on which we find the violation is encompassed
within the allegations of the complaint. Finally, we emphasize that the issues
were fully litigated at the hearing.
5 In its reply to the exceptions taken by the General Counsel, the Union
itself states that Kelly had been a member for 6 years and ‘‘concurs with Gen-
eral Counsel that Kelly was a member of Local 12 in 1988 (as a helper, not
a mechanic).’’ The judge’s erroneous belief that Kelly was not yet a member
of the Union because he had not yet paid his initiation fee apparently arises
from the fact that a union member pays one half of the initiation fee when
he joins the Union and the other half when he passes the mechanic’s test.
Kelly paid half of the initiation fee in 1982 when he joined the Union. The
initiation fee at issue here is the balance of the fee necessary before becoming
a mechanic.
6 Unless otherwise noted, all dates hereafter refer to 1988.
Brand Mid-Atlantic, Inc. and Mark Vodopia
Local 12, International Association of Heat and
Frost Insulators and Asbestos Workers, AFL–
CIO (New Maintenance, Inc. d/b/a NPS Energy
Services) and Michael Kelly and Mark
Vodopia. Cases 29–CA–13593–1, 29–CB–6909,
and 29–CB–6969
August 27, 1991
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
Exceptions filed to the judge’s decision in this case1
present the question, inter alia, of whether the Re-
spondent Union violated Section 8(b)(1)(A) and (2) of
the Act by refusing to refer union member Mike Kelly
as a mechanic because of his failure to pay an initi-
ation fee and union member Mark Vodopia because of
his intraunion activities.
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, and con-
clusions only to the extent consistent with this Deci-
sion and Order.2
The Respondent Union assists its members in find-
ing jobs in the New York City area by operating a
nonexclusive referral service and by supplying infor-
mation to members so that they can seek work from
employers on a self-referral basis. Although the Union
is signatory to some contracts that require it to be the
exclusive source of referral at specific projects, mem-
bers obtain 90 percent of their jobs through self-refer-
ral. As fully explained by the judge, from the begin-
ning of 1988 the Union referred members on a non-
exclusive basis to perform work at the Astoria Power-
house Unit 6 project for New Maintenance, Inc. (NPS
II).3 In addition, the Union referred employees on a
nonexclusive basis to perform work at the Astoria
Powerhouse Unit 10 for Brand Mid-Atlantic, Inc.
There is no relation between NPS II and Brand Mid-
Atlantic.
The judge found that the Union did not violate Sec-
tion 8(b)(1)(A) and (2) by refusing to refer Mike Kelly
to the NPS II project at Astoria Powerhouse Unit No.
6 after January 1, 1988, because he had not paid his
initiation fee. In dismissing this allegation of the com-
plaint,4 the judge reasoned that because Kelly was not
yet a member of the Union and because the Union did
not operate an exclusive hiring hall, the Union was not
obligated to refer Kelly for work. For the reasons stat-
ed below, we disagree.
Initially, we note that it is undisputed that Kelly has
been a union member since 1982.5 In August 1987,
Kelly passed the mechanic’s exam. The following
month he sent the Union a check to cover the balance
of his initiation fee that was due before he could be
sworn in as a mechanic. The check ‘‘bounced.’’ On
January 8, 1988,6 Kelly gave Bokun, the Union’s sec-
retary-treasurer, another check for $200 to cover both
the initiation fee and dues arrearages. In the latter part
of February, Fitzgerald, the Union’s business rep-
resentative, received a call from Kelly requesting that
he be sent to Astoria Powerhouse Unit 6 to work at
the tank farm project. Fitzgerald testified that he ‘‘was
going to place [Kelly] at Astoria Powerhouse some-
time in the very early part of March.’’ Fitzgerald fur-
ther testified that he called Bokun in March to get
Kelly’s phone number. At that time Bokun informed
him that [Kelly] had not paid his initiation fee and still
owed the Union money. Fitzgerald replied that he
needed a mechanic for the Unit 6 job, ‘‘and as long
as Kelly has not paid his obligation, he is not consid-
ered a mechanic.’’ Consequently, Fitzgerald did not
refer Kelly to the NPS II project. Neither Fitzgerald
854 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Because the Union did not operate an exclusive hiring hall, we find that
it did not violate Sec. 8(b)(2) by refusing to refer Kelly. See Iron Workers
Local 577 (Various Employers), 199 NLRB 37, 42–43 (1972), and Operating
Engineers Local 4 (Carlson Corp.), 189 NLRB 366, 366–377 (1971).
8 See Service Employees Local 9 (Blumenfield Enterprises), 290 NLRB 1,
3 (1988), where the judge, observing that ‘‘a union member has the right to
protect his right to fair treatment by the union in matters affecting his employ-
ment,’’ cited in support Miranda Fuel Co., 140 NLRB 181, 189 (1962),
quoting Electrical Workers IUE Local 801 v. NLRB; NLRB v. General Motors
Corp., 307 F.2d 679, 683 (D.C. Cir. 1962):
The requirement of fair dealing between a union and its members is
in a sense fiduciary in nature and arises out of two factors. One is the
degree of dependence of the individual employee on the union organiza-
tion; the other, a corollary to the first, is the comprehensive power vested
in the union with respect to the individual.
9 See Claremont Resort Hotel & Tennis Club, 260 NLRB 1088, 1092
(1982), and cases there cited. These cases concern a union’s fiduciary duty
in the context of its failure to inform members of their dues delinquencies
prior to seeking their discharge under a valid union-security agreement. In the
present case, where the Union refused to refer Kelly as a mechanic because
he has not met his financial obligations, we find that the Union had a similar
fiduciary duty to inform Kelly of the amount he owed and how he could sat-
isfy his obligation to the Union before it refused to refer him for employment.
10 Fitzgerald and Bokun testified without contradiction that the Union’s es-
tablished practice was to send a ‘‘standard letter’’ as a reminder to a member
who was ‘‘a couple of months’’ behind in his dues. If the dues were not paid
within a ‘‘short period,’’ the delinquent member would be sent a suspension
notice. If no answer was received within 30 days, the member stood lapsed
because of nonpayment of dues. Between January and May 1988, the Union
never sent Kelly such a ‘‘standard letter’’ despite the fact that the Union still
considered him to be delinquent.
11 The position in which the Union placed Kelly is analogous to the position
in which a union places a traveler when it unlawfully refuses to accept his
travel service fee and then refuses to allow him to work in its jurisdiction be-
cause he has not paid the fee. See, e.g., Iron Workers Local 111 (Steel Build-
ers), 274 NLRB 742, 746 (1985).
nor Bokun informed Kelly that he was in arrears and
that the Union would not refer him as a mechanic be-
cause of his failure to pay the initiation fee.
In early April, Kelly sought out Bokun to find out
why he had not received his mechanic’s card. At that
time Bokun informed Kelly that he had not deposited
Kelly’s check because Kelly had to submit two sepa-
rate checks, the first to pay the initiation fee and the
second to cover the dues arrearage. Finally, on May 3,
1988, Kelly submitted two signed blank checks to the
Union. He began working for Brand at Astoria Power-
house No. 10 later that month.
The issue here is whether the Union violated Section
8(b)(1)(A) of the Act by refusing to refer Kelly as a
mechanic.7 We find that it did for the following rea-
sons. Although the Union does not operate an exclu-
sive referral service, it maintains exclusive control over
the members’ ability to seek referral in a specific sta-
tus. In this regard, a member can only move up from
an ‘‘improver’’ to a ‘‘mechanic,’’ and thus seek em-
ployment at the higher grade, by passing an exam
given by the Union and by paying the required install-
ment of his initiation fee to the Union. In these cir-
cumstances, where members depend exclusively on the
Union for access to a higher referral status and where
the Union retains total control over the process by
which members can achieve such status, we find that
the Union has a fiduciary duty to deal fairly with its
members in processing their applications to become
mechanics.8 As part of its fiduciary duty, the Union
had an affirmative duty ‘‘specifically to inform [Kelly]
of his obligations and afford him a reasonable oppor-
tunity to satisfy them’’ before it could refuse to refer
him because of his alleged failure to pay the balance
of his initiation fee and his dues arrearage.9 Thus, the
Union had an affirmative obligation to inform Kelly of
the specific amounts that he owed the Union in regard
to the initiation fee and the dues arrearage and of the
process by which he could pay these amounts to the
Union before it could refuse to refer him as a me-
chanic.
Turning to the facts before us, we emphasize that
the Union accepted Kelly’s January 8 check without
informing him that it required that separate checks be
submitted to cover the initiation fee and the dues ar-
rearages. We emphasize further that the Union never
notified Kelly, in accordance with its own established
procedures,10 that it considered him ‘‘delinquent’’ after
he gave Bokun the January 8 check. Finally, as noted
above, Fitzgerald testified that he would have referred
Kelly as a mechanic to the Unit 6 tank farm project
but for his failure to pay the initiation fee and dues.
Thus, in the months following his tender of the Janu-
ary 8 check to Bokun and Bokun’s acceptance of it,
Kelly reasonably expected that he would be sworn in
and referred out by the Union as a mechanic. During
this same time, however, and unknown to Kelly, the
Union both failed to process his application and re-
fused to refer him as a mechanic because of his al-
leged failure to fulfill his financial obligations. In sum,
by failing to inform Kelly how he could fulfill his fi-
nancial obligations, the Union effectively prevented
Kelly from fulfilling those obligations and then refused
to refer him as a mechanic because he had not met
them. In these circumstances, we find that the Union
breached its fiduciary duty to Kelly and thus violated
Section 8(b)(1)(A).11
As to Vodopia, the judge found and we agree, as
noted above, that the Union violated Section
8(b)(1)(A) through Fitzgerald’s June 7 statement to the
membership that Vodopia was a troublemaker and
‘‘would never work again in this Local.’’ Inferring that
Fitzgerald had held this view in May, the judge found
that the Respondent violated Section 8(b)(1)(A) and
(2) by refusing to refer Vodopia to a job at Unit 6 be-
cause he had filed internal union charges, had criti-
cized Fitzgerald, and had become troublesome to union
officials. We disagree.
Vodopia has been a member of the Union for over
30 years. A longstanding feud existed between
Vodopia and Fitzgerald. In December 1987, Vodopia
was referred to the NPS I project at the Unit 6 tank
farm project. Vodopia expressed his concern about the
quality of the work and about certain activities that
took place there. On March 1, 1988, Vodopia appeared
855BRAND MID-ATLANTIC, INC.
12 As noted above, at fn. 2, we agree with the judge that the Union did not
violate Sec. 8(b)(1)(A) by refusing to refer Vodopia from March 10 to 14.
13 As noted above, at fn. 2, we agree with the judge that Respondent Brand
Mid-Atlantic did not violate Sec. 8(a)(3) by refusing to hire Vodopia between
late April and May 25 because he had filed internal union charges and because
he engaged in dissident union activities.
14 As explained above, at fn. 7, we find additionally that in the cir-
cumstances of this case the Union did not violate Sec. 8(b)(2) by refusing to
refer Vodopia.
15 Vodopia testified that he should have been referred to the Unit 6 job
ahead of Leonard, Grant, and Gosli because they had never worked for NPS
at Unit 6 and therefore he had more seniority. As noted above, however,
Vodopia had never worked at Unit 6 either and therefore he had no seniority
on that project. Even assuming that he did have seniority, it is established, as
the judge himself found, that the Union did not consider seniority in making
referrals. As to the fourth individual, Matteson, Vodopia testified that he had
been out of work longer than Matteson, but admitted that Matteson had
worked at the oil field longer than he had. Accordingly, it is unclear whether
Matteson had more experience.
16 See Boilermakers Local 83 (Missouri River), 205 NLRB 951, 956–957
(1973).
before the Union’s executive board to bring internal
charges against Fitzgerald and McCarthy, the shop
steward on the project. On March 4, the employees at
the tank farm project were laid off due to an oil spill.
A ‘‘few’’ employees were recalled on Thursday,
March 10. Fitzgerald was recalled on March 14.12 Pur-
suant to Vodopia’s request that members of the execu-
tive board visit the tank farm project to check on the
work there, Fitzgerald visited the site on March 16.
Vodopia and Fizgerald became involved in a heated ar-
gument. Another argument between the two occurred
when Fitzgerald visited the site on April 1. On April
15, Vodopia was laid off for a second time.
On April 18, Vodopia called Harry Moore, a super-
intendent for Brand, to request employment at the
Astoria Powerhouse Unit 10 project. Moore promised
him a job and told him that it would start on April 26.
Despite repeated attempts to reach Moore, Vodopia
could not contact Moore again until May 6 when
Moore told him he could have a job at a different
project. About the same time, Vodopia called Fitzger-
ald because he had heard that some employees had
quit at Unit 6 and asked to be referred to that job.
Fitzgerald told him that the jobs had been filled. On
May 24, Vodopia again called the Union looking for
work. Loporfido, a union representative, told Vodopia
to go to the Brand jobsite and talk to Moore about a
job there. On May 25, Vodopia went to the Brand job-
site, was hired and worked for 3 days before being laid
off on June 1.13 Finally, at a general membership
meeting on June 7, another quarrel took place between
Vodopia and Fitzgerald. During the argument, Fitzger-
ald stated that Vodopia ‘‘would never work again in
this Local, that he didn’t even consider him a member
of the Union [and] that he was nothing but a trouble-
maker.’’
Although we agree with the judge that the General
Counsel has established a prima facie case that the
Union had strong animus concerning Vodopia, we find
that the General Counsel has not established any nexus
between that animus and the failure to refer. Moreover,
the Respondent has successfully met its burden of
showing that its failure to refer Vodopia to the Unit 6
job was nondiscriminatory and thus did not violate
Section 8(b)(1)(A).14 In this regard, we note that at the
hearing Ragusin, the former foreman at the Astoria
tank farm project, credibly testified that the Unit 6
project and tank farm project were separate and that
there were no transfers between them. Consequently,
seniority did not apply from one job to the other. In
addition, Fitzgerald testified without contradiction that
in selecting men for work, he considered three factors
in making his decision: who had been unemployed the
longest, whether the individual had the skills necessary
to perform the job, and whether the individual could
get to the job. It is undisputed that in making referrals
the Union did not consider seniority. At the hearing,
the Union presented evidence that four individuals
were referred to the Unit 6 job on May 5 and that
there was no factor affording Vodopia priority in refer-
ral ahead of these individuals.15 In the absence of any
evidence that Vodopia was entitled to referral ahead of
these four individuals and in the absence of any nexus
between the Union’s failure to refer Vodopia on May
5 and the Union’s animus toward him,16 we find that
the Union did not discriminatorily refuse to refer
Vodopia to the Unit 10 job. Accordingly, we shall dis-
miss this allegation of the complaint.
AMENDED REMEDY
Having found that the Union violated the Act by
failing and refusing to refer Kelly as a mechanic from
January 8 to May 1988, we shall order the Union to
make Kelly whole, with interest, for any loss of earn-
ings he may have suffered as a result of the Union’s
refusal to refer him for employment during that period.
See F. W. Woolworth Co., 90 NLRB 289 (1950); New
Horizons for the Retarded, 283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, Local 12, International Association of
Heat and Frost Insulators and Asbestos Workers, AFL–
CIO, New York, New York, its officers, agents, and
representatives, shall
1. Cease and desist from
(a) Threatening to refuse to refer any of its members
for employment because they engaged in intraunion or
protected activities.
(b) Failing and refusing to inform members of how
they can fulfill their financial obligations to become
mechanics and then refusing to refer them as mechan-
ics because they have not met these obligations.
856 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 If this Order is enforced by a judgment of a United States court of ap-
peals, 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.’’ 1 The General Counsel’s motion to correct transcript is granted.
(c) In any like or related manner restraining or co-
ercing members 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 Michael Kelly for any losses he
may have suffered by reason of the Respondent’s fail-
ure to inform him how he could fulfill his financial ob-
ligations to become a mechanic and its refusal to refer
him for employment as a mechanic because he had not
met those obligations, with interest, in the manner set
forth above in the amended remedy section of the De-
cision and Order.
(b) Preserve and, on 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
records necessary to analyze the amounts owing under
the terms of this Order.
(c) Post at all places where notices to members are
posted, copies of the attached notice marked ‘‘Appen-
dix.’’17 Copies of the notice on forms provided by the
Regional Director for Region 29, after being duly
signed by the Respondent’s authorized representative,
shall be posted by the Respondent immediately upon
receipt and be maintained for 60 consecutive days in
conspicuous places, including all places where notices
to members are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO 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 or-
dered us to post and abide by this notice.
WE WILL NOT threaten to refuse to refer members
for employment because of their intraunion activities
or other protected activities.
WE WILL NOT fail and refuse to inform members of
how they can fulfill their financial obligations to be-
come mechanics and then refuse to refer them as me-
chanics because they have not met these obligations.
WE WILL NOT in any like or related manner restrain
or coerce members in the exercise of their rights under
Section 7 of the Act.
WE WILL make whole Michael Kelly, with interest,
for any losses he may have suffered by reason of our
refusal to refer him for employment as a mechanic.
LOCAL 12, INTERNATIONAL ASSOCIA-
TION OF HEAT AND FROST INSULATORS
AND ASBESTOS WORKERS, AFL–CIO
Kevin R. Kitchen, Esq., for the General Counsel.
Bradford W. Coupe, Esq. and Barbara M. Cummins, Esq.
(Morgan, Lewis & Bockius), of New York, New York, for
Brand Mid-Atlantic, Inc.
Edward J. Groarke, Esq. (Colleran, O’Hara & Mills), of
Garden City, New York, for Local 12.
DECISION
STATEMENT OF THE CASE
D. BARRY MORRIS, Administrative Law Judge. This case
was heard before me in New York, New York, on May 22–
24, July 6–7, August 14–16 and August 28, 1989. On several
charges, the first of which was filed April 1, 1988, a consoli-
dated amended complaint was issued on March 28, 1989, al-
leging that Respondent, Local 12, International Association
of Heat and Frost Insulators and Asbestos Workers, AFL–
CIO (Local 12 or the Union) violated Section 8(b)(1)(A) and
(2) of the National Labor Relations Act (the Act) and that
Respondent Brand Mid-Atlantic, Inc. (Brand) violated Sec-
tion 8(a)(1) and (3) of the Act. Respondents filed answers
denying the commission of the alleged unfair labor practices.
The parties were given full opportunity to participate,
produce evidence, examine and cross-examine witnesses,
argue orally, and file briefs. Briefs were filed by the parties
on October 26, 1989.
On the entire record of the case,1 including my observa-
tion of the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
New Maintenance, Inc. d/b/a NPS Energy Services, a
Pennsylvania corporation with its principal office and place
of business in Philadelphia, Pennsylvania, has been engaged
in providing maintenance, repair, and renovation of industrial
facilities, including a location at Astoria Powerhouse Unit
No. 6 in Astoria, New York. It has been admitted, and find,
that it is an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act. In addition,
Brand, a Pennsylvania corporation with its principal office
and place of business in Essington, Pennsylvania, has been
engaged in providing maintenance, repair, and renovation of
industrial facilities, including a location at Astoria Power-
house Station No. 10 in Astoria, New York. It has been ad-
mitted, and I find, that Brand is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act. It has also been admitted, and I find, that the
857BRAND MID-ATLANTIC, INC.
2 All dates refer to 1988 unless otherwise specified. 3 The Tank Farm was also known as the oil field.
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The issues in this proceeding are:
1. Whether the Union violated Section 8(b)(1)(A) and (2)
of the Act by failing to refer Michael Kelly for employment
for reasons other than failure to tender periodic dues and ini-
tiation fees.
2. Whether the Union violated Section 8(b)(1)(A) and (2)
of the Act by failing to refer Mark Vodopia for employment
for reasons other than failure to tender periodic dues and ini-
tiation fees.
3. Whether Brand violated Section 8(a)(1) and (3) of the
Act by failing to employ Vodopia because of his activities
as a union dissident.
B. The Facts
1. NPS Energy Services
On July 30, 1986, the Union entered into an agreement
with NPS Energy Services, Inc., a subsidiary of NPS Tech-
nologies Group, Inc. (NPS I), with respect to work to be
done at Astoria Powerhouse Unit No. 6. Article 3(a) of the
agreement provided that the Union was to be the sole source
of referral of employees. Pursuant to an Asset Purchase
Agreement dated December 29, 1987, the assets of NPS I
were sold to New Maintenance, Inc., a subsidiary of Day and
Zimmerman, Inc. (NPS II). The purchaser was given the ex-
clusive license to use the name ‘‘NPS Energy Services, Inc.’’
The complaint alleges that the Union entered into the June
30, 1986 agreement with NPS II. However, the record dem-
onstrates that that agreement was entered into with NPS I.
Robert P. Kaplan, a representative of NPS Technologies
Group, Inc., credibly testified that NPS II has different own-
ership than NPS I, the two corporations operate out of dif-
ferent locations, have different staffs and use different equip-
ment. As of January 1, 1988, NPS I had no further relation-
ship with the job at Unit 6 of the Astoria Powerhouse. In ad-
dition, Michael Saccoccia, general manager of NPS II,
credibly testified that the Asset Purchase Agreement did not
provide for the assumption of the contract between the Union
and NPS I.
2. Michael Kelly
In August 1987, Kelly passed the mechanic’s test adminis-
tered by the Union. A month later Kelly sent the Union a
check in the amount of $161 as the remainder owing on his
initiation fee and to obtain his mechanic’s card. In November
1987 Kelly was advised that the $161 check had bounced.
Kelly then spoke to John Bokun, secretary-treasurer of the
Union, who told Kelly that he owed the $161 and dues of
approximately $40. On January 8, 1988,2 Kelly sent a new
check to the Union in the amount of $200. During April,
Kelly asked Bokun when he would be receiving the mechan-
ic’s card. Bokun replied that since Kelly had sent one indi-
vidual check, instead of two separate checks, Bokun could
not separate the money between the dues and the initiation
fee and therefore he did not deposit the check. On May 3
Kelly gave Bokun two signed checks with the amounts left
blank. Kelly began working for Brand in early May at the
Astoria Powerhouse Unit 10 and continued to work there
until April 1989.
3. Mark Vodopia
Vodopia had been a member of the Union for approxi-
mately 32 years. Although the Union does not operate a hir-
ing hall, it does refer members for employment. In addition,
members are given shop lists so that they can solicit their
own jobs. The record indicates that there has been a long-
standing feud between Vodopia and William Fitzgerald, the
Union’s business manager.
In December 1987, Vodopia began working for NPS I at
the Tank Farm,3 which was adjacent to the Astoria Power-
house Unit 6. He had been referred by the Union. Vodopia
expressed his concern about the quality of the workmanship
on the job and the fact that Edward Ragusin, the foreman on
the job, had allowed certain activities, to take place with
which Vodopia disagreed. On March 1, 1988, Vodopia, ap-
peared before the Union’s executive board for the purpose of
bringing internal charges against Fitzgerald and Robert
McCarthy, the job’s shop steward. During the course of
Vodopia’s presentation, Fitzgerald yelled out ‘‘this is too
much’’ to which Vodopia replied ‘‘I hate your guts.’’
Vodopia was then told that he would be heard at the next
executive board meeting.
On March 4, the employees at the oil field were laid off
due to an oil spill. On March 7, 8, and 9, Vodopia called
Fitzgerald to find out when he could return to work and Fitz-
gerald replied that to his knowledge he did not think that
anyone had yet returned. When Vodopia called Fitzgerald on
Thursday, March 10, Fitzgerald advised Vodopia that ‘‘a few
guys went back.’’ When Vodopia asked Fitzgerald why he
hadn’t been recalled prior to one of the other employees,
Fitzgerald replied that there was no seniority on the job. Fitz-
gerald testified that neither the collective-bargaining agree-
ment nor the Union’s constitution provides for seniority and
Ragusin, who appeared to me to be a credible witness, testi-
fied that there is no seniority for layoff or return to work.
On Monday, March 14, Fitzgerald telephoned Vodopia who
then returned to his job at the oil field.
On March 15, Vodopia appeared before the executive
board. Vodopia attempted to address the Board on the
charges he was making against Ragusin and McCarthy and
requested that the entire executive board visit the jobsite. On
March 16 Fitzgerald came to the jobsite. Vodopia testified
that while at the jobsite Fitzgerald, told the employees they
should know ‘‘what kind of rat you’re working with,’’ refer-
ring to Vodopia . Ragusin testified that at the time Vodopia
and Fitzgerald were arguing loudly. McCarthy testified that
Fitzgerald made an inspection and stated to the employees
that he deemed that the charges that were filed were ground-
less and that the work was satisfactory. James Amellin, vice
president of the International, who appeared to me to be a
credible witness, also testified that he investigated the allega-
tion that there had been poor workmanship at the Astoria
Powerhouse and, to the contrary, he found that the workman-
ship was satisfactory.
858 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On April 1, Fitzgerald appeared at the jobsite to inves-
tigate a matter unrelated to Vodopia’s internal charges.
Vodopia questioned the way in which Fitzgerald was han-
dling this particular problem. Vodopia testified that Fitzger-
ald told him to shut up, that he had nothing to say to him
and that as far as Fitzgerald was concerned Vodopia was not
a member of the Union. Vodopia further testified that Fitz-
gerald said ‘‘If you don’t like what I just said, you can take
a punch at me.’’ When asked what happened between Fitz-
gerald and Vodopia that day, Ragusin credibly testified that
there was an exchange of words, that Vodopia got angry, and
‘‘made a fist’’ at Fitzgerald.
On April 15, Vodopia was laid off from the oil field job.
On April 18, Vodopia placed a telephone call to Harry
Moore, the superintendent of a job run by Brand. Vodopia
asked to be hired on a job which was to begin at Astoria
Powerhouse Unit 10. Vodopia testified that Moore told him
that he would hire him and that the job would begin on April
26. On April 25 Vodopia telephoned Fitzgerald and asked if
men were being rehired for work at Unit 6. Vodopia testified
that Fitzgerald replied ‘‘my seniority didn’t count’’ and that
NPS did not want him back. Vodopia testified that after he
persisted in attempting to get Fitzgerald to refer him to the
Unit 6 job, Fitzgerald told him ‘‘you declared war on me
when you started writing things.’’
Vodopia testified that between April 26 and May 5 he
made numerous attempts to contact Moore by telephone and
finally reached him on May 6. Vodopia testified that Moore
then promised him a different job, at the 14th Street Power-
house. About the same time Vodopia telephoned Fitzgerald
because he had heard that some employees had quit at Unit
6 and asked to be referred to work there. Fitzgerald told
Vodopia that the jobs had been filled.
On May 24 Vodopia again called the Union looking for
work and spoke to Loprofido, the union president. Loprofido
told him to go to the Brand jobsite and talk to Moore about
getting a job. On May 25 Vodopia went to the Brand jobsite,
was hired by Brand and worked for 3 days. He was laid off
on June 1.
On June 7, a union general membership meeting was held.
Fitzgerald addressed the membership and told them Vodopia
was continuing to write letters to the International. An argu-
ment ensued between Vodopia and Fitzgerald. Vodopia testi-
fied that Fitzgerald said ‘‘this guy stinks’’ and ‘‘I’m going
to call my lawyer and sue him.’’ James Segrich testified that
Fitzgerald said Vodopia ‘‘would never work again in this
Local, that he didn’t even consider him a member of the
Union [and] that he was nothing but a troublemaker.’’
At the Union’s general membership meeting held on July
5 Vodopia entered the union hall with a shopping bag. Fitz-
gerald accused Vodopia of having a tape recorder in the
shopping bag. Ragusin testified that Bokun searched the bag
and found a piece of pipe in the bag. Vodopia testified that
Fitzgerald said ‘‘we have a couple of rats here that are suing
Local 12, so I won’t go into any of the important issues.’’
Vodopia also testified that Bokun stated ‘‘any guys that go
to the National Labor Relations Board and bring charges
against the Local stink.’’ Concerning the same meeting
Segrich testified that Bokun criticized Vodopia and Kelly for
‘‘running to the National Labor Relations Board and starting
a lot of trouble.’’
Discussion and Conclusions
1. Successorship
The Board has evolved a set of criteria to determine
whether legal successorship exists. The relevant questions in-
clude:
(1) whether there has been a substantial continuity of
the same business operations; (2) whether the new em-
ployer uses the same plant; (3) whether he has the same
or substantially the same work force; (4) whether the
same jobs exist under the same working conditions; (5)
whether he employs the same supervisors; (6) whether
he uses the same machinery, equipment and methods of
production; and (7) whether he manufactures the same
product or offers the same services. J-P Mfg., Inc., 194
NLRB 965, 968 (1972); Band-Age, Inc., 217 NLRB
449, 452–53 (1975), enfd. 534 F.2d 1 (1st Cir. 1976).
Kaplan credibly testified that NPS II operates out of a dif-
ferent location than did NPS I, that the two corporate entities
have different office staffs, that different equipment is used,
and that the ownership of the two corporations is entirely dif-
ferent. This testimony was not controverted. Saccoccia
credibly testified that the officers and directors of the two
corporations are different and that NPS II did not assume the
union contract as part of the Asset Purchase Agreement. This
testimony also has not been controverted. With respect to the
employee complement, the testimony indicates that three
managers were taken over by NPS II. Other than that testi-
mony, the record is silent with respect to the composition of
the work force. There is no indication of what percentage of
the work force, if any, continued with NPS II.
One of the key factors in determining whether
successorship exists is an examination of whether ‘‘the same
or substantially the same work force’’ is employed. Indeed,
General Counsel’s brief concedes that the ‘‘threshold cri-
terion in successor cases has been the continuity of the work
force.’’ This record contains insufficient evidence to be able
to determine that factor. In addition, the uncontroverted testi-
mony establishes that the same plant was not used and that
the same equipment was not used. Accordingly, I find that
the General Counsel has not sustained its burden of showing
that NPS II is the legal successor of NPS I.
2. Failure to refer Kelly
The complaint alleges that since January 1, 1988, the
Union failed to refer Kelly to NPS II, in violation of Section
8(b)(1)(A) and (2) of the Act. The complaint also alleges that
NPS II entered into a contract with the Union requiring that
the Union be the sole and exclusive source of referrals of
employees to employment with NPS II. As discussed above,
the contract entered into on June 30, 1986, was with NPS
I and the Union. The uncontroverted testimony in the record
is that the contract was not assumed by NPS II as part of
the Asset Purchase Agreement. Since I have found that NPS
II is not the legal successor of NPS I, as of January 1, 1988,
there was no agreement in effect which required that the
Union be the sole and exclusive source of referrals of em-
ployees to employment with NPS II.
The record is clear that the Union operates on a self-solici-
tation basis. In addition, the Union also makes some refer-
859BRAND MID-ATLANTIC, INC.
4 In Bechtel Power Corp., 223 NLRB 925, 933 (1976), enfd. 597 F.2d 1326
(10th Cir. 1979), it was pointed out that where there is an exclusive hiring
hall, unlike the instant proceeding, ‘‘a union cannot lawfully refuse to refer
an applicant because of union considerations.’’
5 While the complaint alleges that the Union failed to refer Vodopia through
June 1, the record shows that it referred Vodopia to Brand on May 24.
rals. Fitzgerald testified that approximately 90 percent of the
hiring done through Local 12 is done on a self-solicitation
basis.
In 1987, Michael Kelly passed his mechanic’s test and in
September of that year he sent the Union a check for $161
as payment of the initiation fee. He was subsequently noti-
fied that the check bounced and in January 1988, he sent the
Union another check for $200. In April the Union advised
Kelly that he had to submit two separate checks and on May
3 he submitted two signed blank checks. He began employ-
ment with Brand during May.
Until May Kelly had not paid his initiation fee. The law
has long been settled that absent an exclusive hiring agree-
ment, a union is not required to refer nonmembers. Kaiser
Gypsum Co., 118 NLRB 1576, 1581 (1957). See also United
Construction Co., 169 NLRB 1, 3 (1968), enfd. 415 F.2d
479 (6th Cir. 1969).4
Inasmuch as I have found that an exclusive hiring agree-
ment did not exist after January 1, 1988, the Union was not
required to refer Kelly to employment until he became a
member. This did not take place until May, when he paid the
requisite initiation fee and dues. Accordingly, the allegation
is dismissed.
3. Failure to refer Vodopia
The complaint alleges that the Union failed to refer
Vodopia to employment with NPS II from March 10 to
March 14 and from May 5 through June 1, 1988, in violation
of Section 8(b)(1)(A) and (2) of the Act.
On March 4 Vodopia was laid off from work at Unit 6
because of an oil spill. On Thursday, March 10, several em-
ployees were recalled. The record is replete with testimony,
which I have credited, that the Union does not operate under
a seniority system. Accordingly, there was no requirement
that Vodopia be among those who were recalled on March
10. On Monday, March 14, Vodopia was called back by
Fitzgerald to employment at Unit 6. Thus, he lost work for
1 day. The complaint alleges that the failure to recall
Vodopia earlier was because he criticized Fitzgerald and be-
cause he filed internal the union charges. I find that General
Counsel has not sustained its burden and, accordingly, the al-
legation is dismissed.
As of May Vodopia had filed internal union charges, had
spoken at several union meetings and had circulated material
criticizing Fitzgerald and other union officials. I have cred-
ited Segrich’s testimony that at a general membership meet-
ing held on June 7, Fitzgerald told the membership that as
far as he was concerned Vodopia was a troublemaker and
‘‘would never work again in this Local.’’ It is not unreason-
able to infer that Fitzgerald already held these views in May,
in view of Vodopia’s activities during the prior several
months. On May 5, Vodopia contacted Fitzgerald for a job
at Unit 6 advising him that six men had left that unit. Fitz-
gerald replied that the jobs had been filled. While I have
found that the practice of seniority is not; adhered to by the
Union, on the other hand, refusing to refer a member because
of intraunion activities is not permitted. The Board has held
that a union violates Section 8(b)(1)(A) and (2) of the Act
when it refuses to refer employees because of their
intraunion or protected activities. Laborers Local 158 (Con-
tractors of Pennsylvania), 280 NLRB 1100 (1986). I find
that Vodopia was not referred during this period by the
Union because he had filed internal charges, had criticized
Fitzgerald and had become troublesome to union officials.
The law does not permit a discrimination in referrals on such
basis. Accordingly, I find that by failing to refer Vodopia
from May 5 to May 24, 1988,5 the Union violated Section
8(b)(1)(A) and (2) of the Act.
4. Threats
The complaint alleges that on March 16 and April 1 Fitz-
gerald threatened Vodopia and committed other acts which
violated Section 8(b)(1)(A) of the Act. In the course of an
argument between Fitzgerald and Vodopia on March 16, in
referring to Vodopia, Fitzgerald stated to the other employees
that they should know ‘‘what kind of rat you’re working
with.’’ On April 1, also in the course of an argument be-
tween Fitzgerald and Vodopia, Fitzgerald told Vodopia to
‘‘shut up’’ and told him ‘‘I don’t consider you a member of
Local 12.’’ Vodopia also testified that Fitzgerald told him
‘‘you can take a punch at me.’’ Ragusi, whose testimony I
have credited, testified that on that occasion Vodopia made
a fist at Fitzgerald. I find the statements by Fitzgerald on
March 16 and April 1 do not constitute violations of Section
8(b)(1)(A) and (2) of the Act.
The complaint alleges that on June 7 Fitzgerald threatened
Vodopia in violation of Section 8(b)(1)(A) of the Act.
Segrich credibly testified that at a general membership meet-
ing on June 7 Fitzgerald made a ‘‘gesture to go after’’
Vodopia and Fitzgerald had to be restrained by the sergeant-
at-arms and the president of the Union. Segrich also credibly
testified that at that meeting Fitzgerald told the membership
‘‘as far as he was concerned Mark would never work again
in this Local, that he didn’t even consider him a member of
the Union [and] that he as nothing but a troublemaker.’’ I
find that by stating that Vodopia would never again work in
the Local, Fitzgerald threatened not to refer Vodopia, in vio-
lation of Section 8(b)(1)(A) of the Act. See Plumbers Local
553 (Plumbing Contractors), 271 NLRB 1361 (1984).
The complaint also alleges that on July 5 Bokun criticized
Vodopia and Kelly for having filed unfair labor practice
charges with the National Labor Relations Board . Segrich
credibly testified that at a union meeting held on July 5,
Bokun referred to Vodopia and Kelly as ‘‘these two degen-
erates’’ and stated ‘‘you should never bring the Union up on
charges [and] go to the NLRB.’’ Segrich further credibly tes-
tified that Bokun used profanity in referring to Kelly and
Vodopia and stated that they should have taken their
‘‘lumps’’ ‘‘and that is what everybody should do instead of
running to the National Labor Relations Board and starting
a lot of trouble.’’
In Longshoremen ILA Local 1329 (Metals Processing),
252 NLRB 229, 233 (1980), the union president stated that
the ‘‘four rats’’ had gone to the NLRB to testify against the
Union and he wanted the membership to know that the four
would ‘‘get theirs.’’ The Board affirmed the judge’s finding
that the statement constituted an implied threat of reprisal.
860 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Under New Horizons, interest on and after January 1, 1987, shall be com-
puted at the ‘‘short-term Federal rate’’ for the underpayment of taxes as set
out in the 1986 amendment to 26 U.S.C. § 6621.
Similarly, in Laborers Local 125 (O’Neil Construction), 260
NLRB 1082, 1085 (1982), a violation of Section 8(b)(1)(A)
was found where a union official stated that a member could
not work out of its hall because he had filed charges against
the union. Further, in Painters Local 558 (Forman-Ford),
279 NLRB 150, 157 (1986), the financial secretary of the
union told a member that he was aware that he had filed
charges with the Board and told him that he would not be
working there ‘‘until the National Labor Relations Board
thing was over.’’ The Board affirmed the judge’s finding that
the statement constituted a threat, in violation of Section
8(b)(1)(A).
In the instant proceeding, contrary to the above-cited
cases, no threat was expressed because of the filing of the
charges. While Bokun used profanity and referred to Kelly
and Vodopia as ‘‘these two degenerates,’’ statements made
at union meetings, where tempers often flare, are ‘‘not al-
ways likely to be parlor discourse.’’ NLRB v. Union
Nacional de Trabajadores, 540 F.2d 1, 11 (1st Cir. 1976),
cert. denied 429 U. S. 1039 (1977). While Bokun criticized
Kelly and Vodopia for having filed charges with the Board,
I do not find that he threatened them with reprisals for hav-
ing filed the charges. The General Counsel has cited no case
in support of his contention that this statement violated the
Act. Accordingly, the allegation is dismissed.
5. Brand’s refusal to employ Vodopia
The complaint alleges that from late April until May 25,
1988, Brand refused to employ Vodopia because he filed in-
ternal union charges and because he engaged in dissident
union activities, in violation of Section 8(a)(1) and (3) of the
Act.
Vodopia testified that he called Moore on April 18 who
told him that he has a job. Subsequent to that time he at-
tempted to call Moore many times and finally on May 25 he
appeared at the jobsite and was employed by Brand. Moore
testified that at no time did any union representative tell him
not to hire Vodopia. The record contains no evidence that
Brand or Moore had knowledge that Vodopia filed internal
charges with the Union or that Vodopia was a union dis-
sident. Inasmuch as the General Counsel has not sustained its
burden of showing that Brand knew of Vodopia’s internal
union activities, the General Counsel has not made a prima
facie showing that Brand violated Section 8(a)(1) and (3) of
the Act. Accordingly, the allegation is dismissed.
CONCLUSIONS OF LAW
1. New Maintenance, Inc. d/b/a NPS Energy Services and
Brand Mid-Atlantic, Inc. are employers engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Local 12, International Association of Heat and Frost
Insulators and Asbestos Workers, AFL–CIO is a labor orga-
nization within the meaning of Section 2(5) of the Act.
3. By threatening to refuse to refer and by failing and re-
fusing to refer Mark Vodopia for employment, the Union has
engaged in unfair labor practices within the meaning of Sec-
tion 8(b)(1)(A) and (2) of the Act.
4. The aforesaid unfair labor practices constitute unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
5. Respondents did not violate the Act in any other man-
ner alleged in the complaint.
THE REMEDY
Having found that the Union has engaged in certain unfair
labor practices, I find it necessary to order it to cease and
desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act.
Having found that the Union violated the Act by failing
and refusing to refer Vodopia from May 5 to May 24, 1988,
I shall order the Union to make Vodopia whole, with inter-
est, for any loss of earnings he may have suffered as a result
of the Union’s refusal to refer him for employment during
that period. See F. W. Woolworth Co., 90 NLRB 289
(1950); New Horizons for the Retarded, 283 NLRB 1173
(1987).6
[Recommended Order omitted from publication.]