Cardi Corporation

National Labor Relations Board - Administrative Judge Opinions

Jun 5, 2008

01-CA-043892 (N.L.R.B. Jun. 5, 2008)

JD–30–08
Warwick, RI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGE
CARDI CORPORATION
and Case 1-CA-43892
CARPENTERS LOCAL NO. 94, NEW ENGLAND
REGIONAL COUNCIL OF CARPENTERS A/W
UNITED BROTHERHOOD OF CARPENTERS AND
JOINERS OF AMERICA
Karen E. Hickey, Esq., of Boston, MA,
for the General Counsel.
Aaron D. Krakow, Esq., of Boston, MA,
for the Charging Party.
John D. O’Reilly III, Esq., of Framingham, MA,
for the Respondent-Employer.
DECISION
Statement of the Case
Bruce D. Rosenstein, Administrative Law Judge. This case was tried before me on April
1, 2008, in Boston, Massachusetts, pursuant to a Complaint and Notice of Hearing in the
subject case (complaint) issued on December 28, 20071, by the Regional Director for Region 1
of the National Labor Relations Board (the Board). The unfair labor practice charge was filed on
April 19, by Carpenters Local Union No. 94, New England Regional Council of Carpenters a/w
United Brotherhood of Carpenters and Joiners of America (the Charging Party or Union)
alleging that Cardi Corporation (the Respondent or Employer), has engaged in certain violations
of Section 8(a)(1) and (5) of the National Labor Relations Act (the Act). The Respondent filed a
timely answer to the complaint denying that it had committed any violations of the Act.
Issues
The complaint alleges that the Respondent has been failing and refusing to bargain
collectively and in good faith with the Union in violation of Section 8(a)(1) and (5) of the Act by
unilaterally implementing a rule requiring bargaining unit employees to possess a valid drivers
license in order to work on one of its jobs and subsequently enforcing the rule by refusing to re-
employ one of its employees.

1 All dates are in 2007 unless otherwise indicated.
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On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, Charging Party and the Respondent, I
make the following
Findings of Fact
I. Jurisdiction
The Respondent is a corporation engaged in highway, concrete, and asphalt
construction in the building and construction industry at its facility in Warwick, Rhode Island,
where during the past year in conducting its business operations it has provided services valued
in excess of $50,000 directly to customers located outside the State of Rhode Island. The
Respondent admits and I find that it is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. Background
The Respondent is an employer-member of the Construction Industries of Rhode Island,
an Association composed of various employers engaged in the construction industry, one
purpose of which is to represent its employer-members in negotiating and administering
collective-bargaining agreements with various labor organizations, including the Union. The
Association and the Union entered into a collective-bargaining agreement effective by its terms
for the period June 5, 2005 through June 7, 2009 (GC Exh. 3).
B. The 8(a)(1) and (5) Violations
1. The Facts
In late 2005, the Respondent adopted and implemented a rule requiring bargaining unit
employees’ to possess a valid drivers license in order to work on its various construction jobs.
The Respondent admits that on November 13, 2006, it refused to consider Eddie Mejia for
reemployment, due to his acknowledged lack of a valid driver’s license. The Respondent further
admits that it adopted and implemented its policy without prior notice or bargaining with the
Union.
David Palmisciano, the Union’s district business manager, has serviced the bargaining
unit for approximately nine years. He along with fellow business manager William Holmes
participated in collective-bargaining negotiations for the parties’ most recent Agreement. Both
individuals testified that no discussions took place during the course of those negotiations
regarding a policy that employees were required to possess a valid driver’s license as a
condition of employment and there is nothing in the current Agreement to this effect. In
addition, neither of these individuals had any independent discussions with any of Respondent’s
representatives that such a requirement was necessary for continued employment at the
Employer. Lastly, both business managers testified that no discussions concerning the
requirement for valid driver’s licenses was undertaken in the prior set of negotiations that led to
the parties’ June 4, 2001 to June 5, 2005 collective-bargaining agreement (GC Exh. 4).
Palmisciano further testified that the first time the Union learned about the driver’s
license requirement was in November 2006. At that time, employee Eddie Mejia informed
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Palmisciano that the Respondent refused to re-employ him when he was released by his
physician to return to full-time employment after being on workmen’s compensation disability.
Palmisciano noted that he immediately telephoned Respondent’s Safety Director Robert Kunz
who told him that the Respondent had adopted such a policy. Kunz admitted, however, that he
was not aware of any written policy to this effect. He also told Palmisciano that maybe he was
not aware of the policy because the Union had not referred any employees for work since April
2005. Around the same time, Palmisciano talked with Respondent’s Treasurer Stephen Cardi,
who informed him that the policy was implemented during the last construction season between
the winter of 2005 and spring 2006 for all employees represented by labor organizations
including the Charging Party.
Kunz and Cardi apprised Palmisciano that it did periodic checks to discern whether
bargaining unit employees had valid driver licenses. These checks were made on the job-site
when employees received their pay checks or when employees were re-hired. Palmisciano
testified that he checked with two of his job stewards, James Mulcahey and Guy Alves, who
informed him that they were not aware of any such policy and that no Respondent supervisor
had ever asked them whether they possessed valid driver licenses. Likewise, both of these
stewards told Palmisciano that they never received any notice in their pay checks about the
requirement for having a valid driver’s license nor did other employees on the job with whom
they worked ever inform them that Respondent’s supervisors asked about whether they had
valid driver licenses.2
By letter dated November 21, 2006, Palmisciano wrote Cardi summarizing the Union’s
position that the Respondent had added an additional requirement for employment that all
employees shall possess a valid motor vehicle drivers’ license (GC Exh. 6). Palmisciano ended
the letter by referring to a communication received from Cardi dated November 17, 2006, in
which there is no reference to the requirement of a driver’s license in either the old or the new
collective-bargaining agreement (R Exh. 1).3
Mejia testified that he has been a member of the Union since 2001 and was employed at
the Respondent from June 2002 until November 2006. He noted that when he was hired in
June 2002, he was not asked whether he possessed a valid driver’s license. Mejia
acknowledged, however, that during his entire tenure at the Respondent he at no time had a
valid driver’s license.

2 Mulcahey and Alves both testified during the hearing that since they became Union
stewards in 2004 and 2005 respectively, they have never been asked whether they possessed
valid driver’s licenses and during the period that they both were laid off in 2004-2005 and 2007-
2008, no Respondent supervisor ever inquired whether they had valid driver’s licenses when
they were recalled from layoff.
3 The Union sought to remove from the parties’ June 8, 1998 to June 3, 2001, collective-
bargaining agreement, Article 21, section 2, that provided Carpenters shall not be required to
possess an automobile as a prerequisite for employment. That provision was ultimately deleted
and did not appear in the parties’ successor agreement (GC Exh. 4). Palmisciano testified that
the Union wanted to delete the provision because in their opinion it conflicted with Article 19,
Section 3 of the Agreement and it should not be a requirement for an employee to have an
automobile to get to work, when in certain circumstances public transportation was available or
an employee could car pool or be driven to work by someone else. Palmisciano confirmed that
he informed the Respondent that the only contractual requirement was for bargaining unit
employees to arrive for work in a timely manner and put in a full day’s work.
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In November 2002, Mejia suffered a work related injury. He collected workmen’s
compensation until he was able to return to light duty. When Mejia returned to work he was not
asked if he held a valid driver’s license. Mejia was laid off in May 2003 and went on workmen’s
compensation again as his hip injury worsened. After participating in intensive physical therapy
sessions, Mejia returned to work at the Respondent in May 2004 performing light duty, but he
was not asked whether he possessed a valid driver’s license.4 Mejia worked on light duty for
approximately eight months but found that his injury worsened and after further medical
evaluation and a MRI, underwent hip replacement surgery in November 2005. After a lengthy
convalescent period, during which he was on workmen’s compensation, the doctors cleared him
to return to full-time status. Accordingly, Mejia telephoned Kunz in November 2006 to apprise
him of his updated medical status and was told to come in to the office in order to take a drug
test and fill out employment forms. While Mejia provided Kunz with a state ID card and his
social security card, Kunz was aware from the prior workmen compensation proceeding that
Mejia did not possess a valid driver’s license. Kunz informed Mejia, during the meeting, that the
owners required employees to have a valid driver’s license to work at the Respondent. Mejia
replied, that he worked before without a driver’s license and had never been asked about or
required to have a valid driver’s license as a condition of employment. Kunz promised to look
into the matter and several days later informed Mejia that the Respondent’s policy was that a
valid driver’s license was required to work at the Respondent and presently there was no work
available.5
Subsequent to meeting with Kunz, Mejia met with Palmisciano to inform him about the
new driver’s license policy. Thereafter, at the urging of Palmisciano, he applied for and
obtained his drivers permit. In February 2007, he received his permanent driver’s license.
During the period between June 2002 and November 2006, when Mejia was employed
at the Respondent, he never received any written or oral notification that his employment was
terminated.
2. Position of the Parties
The General Counsel and the Charging Party argue that the Respondent’s rule or policy
requiring bargaining unit employees to possess a valid driver’s license was implemented without
the Union’s consent, without notice to the Union, and without affording the Union an opportunity
to bargain with respect to the conduct and effects of the conduct. Thus, the General Counsel
seeks a status quo ante remedy, an opportunity for the Union to negotiate and reinstatement
and backpay for Mejia with quarterly compounded interest.
The Respondent first argues that Mejia was an applicant for employment when he met
with Kunz in November 2006, and not an employee within the meaning of section 2(3) of the
Act. Accordingly, they opine that in the absence of a reasonable expectation of employment or
re-employment there is no obligation to negotiate or make him whole.
Second, the Respondent asserts that since the possession of a valid driver’s license is a
necessary requirement for employment on highway construction projects where employees are
frequently required to drive their own vehicles, as well as company vehicles on company

4 Palmisciano testified without contradiction that the Respondent previously reassigned
employees to light duty after coming off workmen’s compensation status. For example, the
Respondent offered this status to employees Curt Hancock, Kevin Gerard and Chuck Falco.
5 Kunz testified that no carpentry employees were hired until April 2007.
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business, the possession of a valid driver’s license is not a mandatory subject for the purpose of
collective bargaining.
Lastly, the Respondent contends that the underlying charge was not filed within the
period of time set forth in Section 10(b) of the Act.
3. Legal Principles
An employer violates Section 8(a)(1) and (5) of the Act if it makes a unilateral
change in wages, hours, or other terms and conditions of employment without first
giving the Union notice and an opportunity to bargain. See NLRB v. Katz, 369 U.S. 736,
743 (1962). The Board has held that changes in job requirements or job qualifications
are mandatory subjects of bargaining. Public Service Company of Oklahoma (PSO),
334 NLRB 487 (2001). However, where an employer’s action does not change existing
conditions, the employer does not violate the Act. An established past practice can
become part of the status quo. Accordingly, the Board has found no violation of the Act
where an employer has followed a well-established past practice. Luther Manor
Nursing Home, 270 NLRB 949, 959 (1984), affd. 772 F.2d 421 (8th Cir. 1985).
An employer may also avoid a finding of violation if it can show that the union
waived bargaining regarding the subjects of the unilateral changes. A waiver of
bargaining rights by a union is not to be lightly inferred, but rather must be
demonstrated by the union's clear and explicit expression. Beverly Health &
Rehabilitation Services, 335 NLRB at 636; Rockford Manor Care Facility, 279 NLRB
1170, 1172 (1986).
Section 10(b) is a statute of limitations and is not jurisdictional in nature. The
Respondent has the burden of showing that the Union knew or should have known prior
to the 10(b) period that the driver’s license policy was in effect. Dutchess Overhead
Doors, 337 NLRB 162 (2001).
4. Analysis
The Respondent’s defenses as alleged above have not been sustained by record
testimony. In this regard, the Respondent did not establish that the practice in the industry is to
require journeymen carpenters to possess a valid driver’s license when working on jobsites.
While the Respondent did establish that carpenter foremen are often requested to drive
company vehicles on the job site or on occasions transport or pick-up supplies from off-site
locations to the job, it did not conclusively establish that journeymen carpenters are required to
perform these responsibilities. Indeed, Kunz was only able to point to one journeyman
carpenter, Chris Hartman, who he observed driving a company vehicle on the jobsite. He could
not articulate how often this occurred or how many times Hartman drove the company vehicle
while working for the Respondent.6 While Kunz opined that he observed other journeymen
carpenters drive company vehicles, when pressed, he could not identify any other individuals.

6 It was estimated that employee Chris Hartman worked approximately 2000 hours over the
last year but Kunz was unable to establish how many of these hours or how often he observed
Hartman drive a company vehicle. It is noted that the Respondent does not maintain any job
description for carpenter bargaining unit employees.
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Kunz testimony was contrary to the two job stewards who credibly testified that carpenter
foreman rather then journeymen carpenters routinely drove company vehicles on the jobsites.
Nor was the Respondent able to establish that employees were routinely asked whether they
possessed valid driver’s licenses either by written communication or after employees returned to
work from seasonal layoffs. Both Union stewards credibly testified that they had never been
asked whether they held valid driver’s licenses after returning from layoff’s or at any time by
their supervisors.
As it concerns the Respondent’s argument that the Union waived its rights to contest the
driver’s license policy during prior collective-bargaining negotiations, no such evidence was
presented by the Employer. While the Respondent argues that the Union’s request to remove
Article 21, section 2, from the parties’ agreement stands for the proposition that employees must
have valid driver’s licenses as a condition of employment, such a position does not withstand
scrutiny. While the deleted provision provided that journeymen carpenters shall not be required
to possess an automobile as a prerequisite for employment, one can not make the jump to the
proposition that journeymen carpenter employees must have valid driver’s licenses to be
employed at the Respondent. The Union’s position that employee’s may get to work in any
manner including public transportation, car-pooling or by being dropped off at the job site by a
family member or friend is reasonable when the Union sought to remove the requirement of an
automobile from the parties’ agreement. Concluding, as the Employer suggests, that
journeymen carpenter employees must have a valid driver’s license does not logically follow as
the record confirms that they have not been required nor have they regularly driven company
vehicles as part of their job responsibilities.
While the record confirms that the Respondent terminated several employees who did
not possess valid driver’s licenses, these actions took place based on reasonable suspicion of a
specific problem involving those individuals. For example, when the Respondent became
aware of a traffic related offense or DWI infraction that it learned about in the newspaper or a
complaint from an incumbent employee, it took the action. It is noted that two of the employees
that were terminated were removed in early 2007, a period of time after Mejia was refused full-
time employment because of not possessing a valid driver’s license. I also note that none of the
employees terminated by the Respondent for lack of a driver’s license were carpenters.
I also reject Respondent’s argument that Mejia was an applicant and not an employee
when he contacted Kunz to seek to return to full-time employment after being approved to do so
by his physician.7 The Board has held that an employee on sick or maternity leave is presumed
to continue in an employment status unless and until the presumption is rebutted by an
affirmative showing that the employee has been discharged or has resigned. Red Arrow Freight
Lines, Inc., 278 NLRB 965 (1986). Thus, the Respondent’s argument that Mejia has no
“reasonable expectation of employment” and is not an employee within the meaning of Section
2(3) of the Act has not been established. In this regard, such a test applies to employees that
have been laid off which is not the case herein. Indeed, the past practice of the Respondent is
normally to retain employee’s who have suffered work related injuries returning them first to light
duty when medically cleared, and then to reinstate them to full-time employment. The record
confirms that Mejia was returned to light duty on at least two occasions in between his
recuperative period while on workmen’s compensation. Therefore, the employment relationship
was uninterrupted and he continued to maintain his employee status during the period between

7 The Board held in Toering Electric Company, 351 NLRB No. 18 (2007), that even an
applicant for employment is protected under the Act. Here, there is no question that Mejia
exhibited a “genuine interest” in seeking employment with the Respondent.
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November 2005 and November 2006, when he regularly received checks under the
Respondent’s workmen’s compensation insurance policy. J. P. Stevens and Company, Inc.,
247 NLRB 420, 482 (1980) (individuals on leave and receiving workers compensation are
considered employees). Lastly, and most significant, the Respondent never orally or in writing
terminated Mejia’s employment relationship during the entire period of his tenure and in
November 2006, he was put on the payroll and paid for hours worked, conclusive evidence that
he was an employee. Thorn Americas, Inc., 314 NLRB 943 (1994).
Additionally, the Respondent did not meet its burden that the underlying unfair labor
practice charge was untimely filed. The evidence presented conclusively establishes that the
Union did not learn of the requirement that a valid driver’s license was necessary for continued
employment until November 2006. Indeed, Kunz acknowledged that the Union probably did not
know of the requirement, which was never reduced to writing, until November 2006 since the
Union had not provided any carpenters to the Respondent since April 2005. Therefore, the April
19 charge in this matter was timely filed.
For all of the above reasons, and particularly noting that the Respondent admits that it
did not notify the Union in advance or engage in negotiations over the driver’s license
requirement, I find that the Respondent has violated Section 8(a)(1) and (5) of the Act by its
unilateral action.
Conclusions of Law
1. The Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. The Respondent violated section 8(a)(1) and (5) of the Act by unilaterally
implementing a rule without notice to or bargaining with the Union requiring
bargaining unit employees to possess a valid driver’s license in order to be
employed at the Respondent.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act. In particular, I recommend that the Respondent be ordered to
restore, for unit employees, the terms and conditions that existed before the 2005 unilateral
changes to its driver license policy, and to maintain those terms in effect until the parties have
bargained to agreement or a valid impasse, or the Union has agreed to changes. I recommend
that the Respondent be ordered to reinstate employee Eddie Mejia to his former position or a
similarly situated position and to make him whole for any loss of pay he suffered as a result of
the Respondent’s unlawful implementation of its 2005 changes to their driver license policy, as
set forth in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971),
with interest as set forth in New Horizons for the Retarded, 283 NLRB 1173 (1987). In addition,
I recommend that the Respondent be ordered to reimburse Eddie Mejia for any expenses
resulting from the Respondent’s unlawful changes to its driver license policy as set forth in Kraft
Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), affd. 661 F.2d 940 (9th Cir. 1981), with
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interest as set forth in New Horizons for the Retarded, supra.8
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended9
ORDER
The Respondent, Cardi Corporation, Warwick, Rhode Island, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Making unilateral changes that require bargaining unit journeymen carpenter
employees to possess a valid driver’s license as a condition of continued employment.
(b) In any like or related manner interfering with, restraining, or coercing employees 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) Reinstate Eddie Mejia to his former position or a similarly situated position and make
him whole for pay and benefits that existed prior to the unlawful unilateral change in the driver’s
license policy that was implemented in 2005, and maintain those terms in effect until the parties
have bargained to a new agreement or a valid impasse, or the Union has agreed to changes, as
provided in the remedy section of this decision.
(b) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(c) Within 14 days after service by the Region, post at its facility in Warwick, Rhode
Island, copies of the attached notice marked “Appendix.”10 Copies of the notice, on forms
provided by the Regional Director for Region 1, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed the facility

8 Since the undersigned must apply current Board precedent, any change in the manner that
interest on backpay is computed must be undertaken by the Board.
9 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
10 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.”
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involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by the Respondent
at any time since November 13, 2006.
(d) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
Dated, Washington, D.C. June 5, 2008
____________________
Bruce D. Rosenstein
Administrative Law Judge
JD–30–08
Warwick, RI
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT make unilateral changes in mandatory subjects of bargaining without first
notifying the Union and, upon request, entering into negotiations with respect to the conduct and
the effects of the conduct.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL make Eddie Mejia whole for any loss of pay that he suffered as a result of our
unilateral change in implementing a rule that required journeymen carpenter employees to
possess a valid driver’s license as a condition of continued employment, and WE WILL rescind
the rule and maintain those terms in effect until the parties bargain to a new agreement or a
valid impasse, or the Union agrees to changes.
WE WILL make Eddie Mejia whole by reimbursing him, with interest, for the loss of benefits and
additional expenses that he suffered as a result of the unilateral changes in the driver’s license
policy that we unlawfully implemented in 2005.
WE WILL offer Eddie Mejia immediate and full reinstatement to his former position without
prejudice to his seniority or other rights and privileges.
Cardi Corporation
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
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Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
10 Causeway Street, Boston Federal Building, 6th Floor, Room 601
Boston, Massachusetts 02222–1072
Hours of Operation: 8:30 a.m. to 5 p.m.
617-565-6700.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 617-565-6701.