Comcraft, Inc.

National Labor Relations Board - Board Decisions

May 22, 1995

317 N.L.R.B. 550 (N.L.R.B. 1995)

550
317 NLRB No. 77
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to the judge’s credibility 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. Stand-
ard 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 We shall modify the recommended Order and substitute a new
notice to provide a remedy for the 8(a)(5) violation found below, to
conform the cease-and-desist provision to that traditionally used by
the Board, and to correct minor inadvertent errors.
3 Cf. Moeller Bros. Body Shop, 306 NLRB 191 (1992), in which
the Board found that the union was chargeable with constructive
knowledge because of its failure to exercise reasonable diligence by
which it would have learned much earlier of the respondent’s con-
tractual noncompliance. In that case the Board found that mere ob-
servation would have put the respondent on notice that the number
of unit employees was at least double the number reported on the
respondent’s fringe benefit forms. By contrast, in the instant case,
the Respondent has not established, nor even argued, that mere ob-
servation would have alerted the Union as to the existence of the
new employees. The employees here did not work at one facility.
Rather, they were dispatched to other sites for varying periods of
time to perform their work. Generally, if a job lasted more than 1
day, the employees reported directly to the site rather than to any
centralized location. Thus, the discrepancy in reporting could not
Comcraft, Inc. and Communications Workers of
America, Local 9503, AFL–CIO. Case 31–CA–
20519
May 22, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
On February 17, 1995, Administrative Law Judge
James M. Kennedy issued the attached decision. The
Respondent filed exceptions and the General Counsel
filed limited exceptions and a supporting brief.
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 brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order as
modified.2
The General Counsel has excepted to the judge’s
dismissal of the allegation that the Respondent violated
Section 8(a)(5) and (1) of the Act by failing, as re-
quired by its collective-bargaining agreement with the
Union, to provide the Union with an updated monthly
roster of bargaining unit employees, including, inter
alia, their names and dates of employment. The judge
found that this allegation was time barred by Section
10(b) of the Act. We find merit in the General Coun-
sel’s exceptions.
Article 5 of the parties’ collective-bargaining agree-
ment requires the Respondent to furnish the Union
with an updated roster of all bargaining unit employ-
ees. In December 1992, the Respondent hired four new
employees to perform bargaining unit work, and in
August 1993, the Respondent hired eight others. These
new employees signed union membership applications
and returned them to the Respondent, but the Respond-
ent did not submit these applications to the Union and
did not notify the Union that it had hired these em-
ployees as required by the collective-bargaining agree-
ment.
In January 1994, at a union meeting, the Union first
learned of the existence of these 12 new employees.
On February 16, 1994, the Union’s Chief Steward
Steve Courtemarsh conducted another union meeting
that was attended by all of the new employees. On
February 23, 1994, Courtemarsh met with the Re-
spondent’s president and chief executive officer,
Dominick Macaluso, and asked him why the 12 em-
ployees had not been reported to the Union. Macaluso
responded that he did not think that temporary employ-
ees had to join the Union.
The judge dismissed the 8(a)(5) and (1) allegation.
Although the judge found that the Respondent failed to
honor the relevant portion of the collective-bargaining
agreement requiring the Respondent to report new em-
ployees to the Union, and that such a breach would
violate Section 8(a)(5), he concluded that this conduct
was not reachable in this proceeding. The judge rea-
soned that because the charge was filed on April 13,
1994, the 6-month 10(b) period extends back only to
October 13, 1993. Because the last hire that the Re-
spondent should have reported to the Union occurred
in August 1993, the judge concluded that the statute of
limitations bars any remedy for the Respondent’s vio-
lation.
We disagree with the judge and find that this allega-
tion is not barred by Section 10(b) of the Act. It is
well settled that the 10(b) period does not begin to run
until the aggrieved party has received actual or con-
structive notice of the conduct constituting the alleged
unfair labor practice. P & C Lighting Center, 301
NLRB 828 (1991); Pinter Bros., 263 NLRB 723, 739
(1982). It is the Respondent’s burden to establish that
the Union knew or should have known more than 6
months before the charge was filed that the Respond-
ent had hired new employees and had not reported
them to the Union. Pinter Bros., supra. Here, the Re-
spondent presented no evidence to contradict the Gen-
eral Counsel’s showing that the Union first learned of
the failure to report the new employees in January
1994, when the Union held a meeting with the Re-
spondent’s unit employees and several of the new em-
ployees attended. Nor has the Respondent shown, or
even asserted, that the Union would have known at an
earlier date of the existence of the new employees had
it exercised due diligence in monitoring the shop.3 Ac-
551COMCRAFT, INC.
have been readily discovered by the Union merely by visiting the
Respondent’s offices during operating hours. Under these cir-
cumstances, unlike in Moeller, we cannot attribute to the Union con-
structive knowledge prior to January 1994 of the Respondent’s fail-
ure to report the new employees. Accordingly, we agree with the
General Counsel that the 10(b) period begins in January 1994 when
the Union obtained actual knowledge that the new employees had
been hired.
cordingly, because the charge was filed on April 13,
1994, less than 6 months after the Union first became
aware of the failure to report, we find that the charge
was timely.
We agree with the judge’s findings, to which the
Respondent has not excepted, that the Respondent
failed to honor that portion of the collective-bargaining
agreement with the Union that required it to report the
hiring of new employees to the Union, and that such
a breach would have violated Section 8(a)(5) if it had
occurred within the 10(b) period. The provision of its
collective-bargaining agreement to which the Respond-
ent unilaterally failed to adhere was plainly a manda-
tory subject of bargaining. We conclude that by this
conduct, which we find occurred within the 10(b) pe-
riod, the Respondent has failed to bargain in good faith
with the Union within the meaning of Section 8(a)(5)
and (1) of the Act.
AMENDED CONCLUSION OF LAW
Substitute the following for Conclusion of Law 4.
‘‘4. By failing to provide the Union with an updated
monthly roster of bargaining unit employees as re-
quired in the collective-bargaining agreement with the
Union, the Respondent has violated Section 8(a)(5) and
(1) of the Act.’’
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
Comcraft, Inc., Northridge and Los Angeles, Califor-
nia, its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
1. Substitute the following for paragraph 1(b) and
insert the following as paragraph 1(c).
‘‘(b) Failing to provide the Union with an updated
monthly roster of bargaining unit employees as re-
quired in the collective-bargaining agreement with the
Union.’’
‘‘(c) 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. Insert the following as paragraph 2(c) and reletter
the subsequent paragraphs.
‘‘(c) Provide the Union with an updated monthly
roster of bargaining unit employees as required in the
collective-bargaining agreement with the Union.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
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 the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT discharge or otherwise discriminate
against any employee for supporting or joining or
seeking to support or join Communications Workers of
America, Local 9503, AFL–CIO, or any other labor or-
ganization.
WE WILL NOT fail to provide the Union with an up-
dated monthly roster of bargaining unit employees as
required in the collective-bargaining agreement with
the Union.
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 immediately offer Herndon Greene and
Johnny Pitts immediate and full reinstatement to their
former jobs, or if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or other rights or privileges previously
enjoyed, and WE WILL make them whole for any loss
of earnings and other benefits they may have suffered
as a result of our discrimination against them, includ-
ing interest. WE WILL treat them in the same manner
as if they had been employed in May 1994 and convert
them to permanent full-time employees as we did oth-
ers at that time and they will be entitled to all of the
benefits that a full-time permanent employee would
normally have enjoyed from that date, except that no
new probationary period may be imposed on them.
WE WILL remove from our files any reference to the
unlawful discharges of Greene and Pitts and WE WILL
notify them in writing that we have done so and that
we will not use the discharges against them in any
way.
WE WILL provide the Union with an updated month-
ly roster of bargaining unit employees as required in
the collective-bargaining agreement with the Union.
COMCRAFT, INC.
Alice J. Garfield, for the General Counsel.
Howard M. Knee (Knee & Mason), of Los Angeles, Califor-
nia, for the Respondent.
Steve Courtemarsh, of Los Angeles, California, Chief Stew-
ard, Communications Workers of America, Local 9503,
AFL–CIO.
552 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are 1994 unless otherwise noted.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. I heard
this case in Los Angeles, California, on September 22–23,
1994.1 The complaint was issued by the Acting Director for
Region 31 of the National Labor Relations Board on May
27; it is based on an unfair labor practice charge originally
filed on April 13 and amended on May 27, by Communica-
tions Workers of America, Local 9503 AFL–CIO (the Union
or CWA). The complaint alleges that Comcraft, Inc. (Re-
spondent) has committed certain violations of Section
8(a)(3), (5), and (1) of National Labor Relations Act (the
Act).
Issues
The complaint asserts that Respondent has violated Section
8(a)(5) and (3) of the Act in two ways. First, it asserts that
since at least November 3, 1993, Respondent has failed, as
required by its collective-bargaining contract with the Union,
to provide the Union with an updated monthly roster of bar-
gaining unit employees, including their names and dates of
employment as well as other relevant material. Second, it as-
serts that on February 25, Respondent discharged its employ-
ees Herndon Greene and Johnnie Pitts, essentially because
they obtained representation by the Union. Respondent de-
nies the assertion and contends that Greene and Pitts were
discharged for nondiscriminatory reasons, including the fact
that they were temporary employees who it contends were
not in the bargaining unit.
The parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. All parties have
filed briefs that have been carefully considered. Based on the
entire record of the case as well as my observation of the
witnesses and their demeanor, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent admits it is a corporation having offices and
places of business in Northridge and Los Angeles, California,
where it is engaged in the business of installing and repairing
telecommunications systems. The evidence also shows that it
has offices in Santa Rosa, California, and Grants Pass and
Salem, Oregon. It further admits that during the previous cal-
endar year it has provided services valued in excess of
$50,000 to the City of Los Angeles, a public entity that is
in engaged in interstate commerce. It therefore admits that it
is an employer engaged commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
Respondent admits the Union is a labor organization with-
in the meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Beginning in November 1989 Respondent has had a busi-
ness contract or business relationship with the city of Los
Angeles to provide it with certain telephone and tele-
communications interconnect services. In essence Respondent
has provided construction, maintenance, and repair services
to the city concerning its telephone system. Even prior to
1989 it had done so as a subcontractor of Pacific Bell. The
business arrangement that began in 1989 was on a 1-year
basis, ending on October 31, 1990. The contract did, how-
ever, contain renewal options for the years 1991–1992 and
1992–1993. Thereafter it was renewed on a month-to-month
basis.
In late 1993, the contract was put out to public bid; on
May 4, 1994, Respondent was awarded the contract again,
lasting through April 30, 1995.
In addition, Respondent has a collective-bargaining rela-
tionship with the Union. That contract was executed on
March 29, 1989, for a 1-year period and contains a self-re-
newal clause. The parties allowed that contract annually to
renew itself up through early 1994, when the Union sought
to begin negotiations for a new agreement.
Respondent is owned by Dominick Macaluso. He is its
president and chief executive officer. He generally works,
however, at Respondent’s Grants Pass, Oregon headquarters.
The day-to-day operations for Los Angeles city work are
handled from an office located in the basement of the city
hall. Until November 1993, the individual who performed
those duties was Sergio Melendez, the project manager.
Upon his departure that month he was replaced, at least in
part, by Fred Keller. Respondent also has officials located at
the Northridge office, approximately a 25-mile distance from
downtown Los Angeles.
Respondent asserts that it employs between 20 and 30 per-
sons who actually engage in the work of telephone and tele-
communication installation. The collective-bargaining con-
tract contains a recognition clause, article 3, section 1, in
which it recognizes the Union as the exclusive collective-bar-
gaining representative for persons known as: trainee, in-
staller, lead installer, technician, and lead technician.
Article 1, section 3 is a union-security clause that is a rea-
sonably standard union-shop clause requiring employees to
join the Union after serving a 30-day grace period. In addi-
tion, the contract contains a clause permitting employees to
voluntarily check off dues from their salary payments and
also requires, per article 5, Respondent to furnish the Union,
on a monthly basis, an updated roster of all bargaining unit
employees, including their names, dates of hire, social secu-
rity numbers, titles, rate of pay, dues, and CWA membership
status for employees hired, rehired, entering or returning
from absences, those who have revoked their authorization to
deduct union dues, or those who are leaving the Company.
B. Respondent’s Operations Under the Collective-
Bargaining Contract
Despite the fact that the collective-bargaining contract sets
forth five specific job classifications together with wage
rates, Respondent does not actually classify its employees in
553COMCRAFT, INC.
2 The other six are Usher, Clark, F. Smith, Ortiz, Hillstock, and
E. Smith.
such a way. Instead, it appears to hire individuals at the entry
level job of ‘‘cable puller,’’ which may in fact actually be
the same job as ‘‘trainee.’’ The contract does mention, but
does not clearly define the scope of, individuals who may be
‘‘part-time’’ or ‘‘temporary.’’ Thus, it appears that the con-
tract does not prohibit Respondent from hiring part-time em-
ployees or temporary employees. The contract does, how-
ever, exclude anybody hired as a temporary from some of
the contract benefits, including holiday pay and certain fringe
benefits. Nonetheless, temporaries who are employed in the
capacity of trainee/cable puller, installer, or technician per-
form exactly the same work that permanent employees as-
signed to those tasks perform.
In December 1992, Respondent began hiring persons as
‘‘cable pullers’’ on a ‘‘temporary’’ basis. That month Re-
spondent hired four temporary cable pullers (Amador,
Bainton, Perez, and Johnson). Then, in August 1993, it hired
eight more temporary cable pullers. These included the two
individuals who were eventually discharged on February 25,
Greene and Pitts.2
Respondent reported none of these individuals to the
Union. It paid them $6 per hour.
As time went by, these individuals, as well as the regular
employees, became concerned that perhaps their pay rate was
inappropriate. Some came to believe that they were entitled
to a prevailing wage rate as provided either by the Davis-
Bacon Act or by the state law, which also requires prevailing
wages to be paid on public works construction projects.
There appears to be some debate about whether those laws
actually apply; some view it as construction work while oth-
ers consider it industrial work.
Moreover, some of the temporary employees, specifically
Greene, came to believe in late December 1993, that they
were entitled to holiday pay. The rationale was that since
they had worked past the 90-day probationary period, which
everyone seems to be aware of (and which is found in the
collective-bargaining contract), that they had become perma-
nent employees. That logic is not entirely acceptable, but at
the same time the four original temporaries at that point had
been working over a year and the eight newer temporaries
had been working for over 4 months.
Indeed, Greene testified that when he was hired, the indi-
vidual who interviewed him, Brian Davis of the Northridge
office, had told him that although he was being hired as a
temporary, if he lasted 90 days he would become permanent.
Also, when the eight were hired in August, each was asked
to fill out various documents relating to hire. Those papers
consisted of several standard forms (including a W–4 form)
and other documents, as well as a blue membership applica-
tion card for the CWA. It is undisputed that Respondent did
not process those CWA applications and did not send the
cards on to the Union.
As an aside, I observe that the eight employees hired in
August 1993 had come to Respondent through its use of the
placement program of a local technical college from which
the eight had recently graduated with certificates of training
in the interconnect field. Indeed, many had purchased the ap-
propriate tools. They were put straight to work utilizing the
skills the technical college had taught them. In addition, of
course, they were trained on the job by more experienced
personnel.
C. The Events Leading to Discharge of Greene
and Pitts
In January, the Union decided it was time to negotiate a
new collective-bargaining contract with Respondent. Accord-
ingly, it sent out notices to Respondent’s employees that a
meeting was to be conducted on January 16 at the Union’s
Northridge office. The meeting was conducted by Margaret
Shoemaker and Nancy Pacheco. Pacheco was the outgoing
executive vice president of the local and Shoemaker was her
successor. Although it is not clear how many of the 12
‘‘temporaries’’ attended that meeting, a large number did, in-
cluding Greene and Pitts. Shoemaker quickly realized that
there was a group of Respondent’s employees about whom
the Union knew nothing. She also learned that that these in-
dividuals had concerns about not receiving what they thought
were benefits under contract. She heard complaints regarding
holiday pay, the prevailing wage question and other matters.
She asked the temporaries who were present to fill out a blue
application card and they did so again.
After the meeting, she decided that the matter needed fur-
ther investigating, so she directed the union’s chief steward,
Steve Courtemarsh, to conduct a further inquiry. Courte-
marsh held another meeting on February 16 at a union office
on Wilshire Boulevard. This time all 12 of the temporaries
attended but only Greene and Pitts voiced complaints, again
regarding wages, holiday pay, and fringe benefits. At that
meeting Greene filled out a grievance statement in which he
described his concern about not having received holiday pay
for Christmas and New Years, though he had passed what
he believed to be his 90-day probationary period. In addition,
all 12 once again filled out the blue membership application
forms.
Courtemarsh now realized the full extent of the Compa-
ny’s failure to report the existence of these employees. At
the same time he had been directed to negotiate a new col-
lective-bargaining contract with Respondent. It was he who
in 1989 had negotiated the original agreement with Company
President Macaluso, so he decided to approach Macaluso
about both matters.
He testified that on February 22, he telephoned Macaluso
to try to make an appointment but was somewhat unsuccess-
ful. He said Macaluso put him off telling him that he was
worried the City of Los Angeles might not renew the Com-
pany’s business contract. Yet, the following day, February
23, Macaluso telephoned Courtemarsh and suggested that he
come to the Company’s office to have coffee, so he did. Ini-
tially, according to Courtemarsh their conversation was cor-
dial (the two had been social acquaintances in the past) and
Courtemarsh says he became rather optimistic about obtain-
ing a new collective-bargaining contract.
He said they then began to discuss the prevailing wage
issue, with Courtemarsh contending that it seemed likely that
the Company was bound to pay the prevailing wage under
either the Federal or state law. Macaluso assured him that
him that he didn’t think so and said the matter was in a legal
process of being determined. He agreed to provide Courte-
marsh with the documents supporting his position.
Courtemarsh then turned to the 12 temporary employees,
telling Macaluso that he had met with them a week before
554 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
on February 16, observing candidly that the employees were
unhappy both with the Company and with the Union’s rep-
resentation of them. Courtemarsh went on to say:
And I said they [the 12] had some issues that—in re-
gards to prevailing wage and not receiving holiday pay,
and I questioned why . . . the 12 temporary employees
were not reported to the union. And Dominick said that
he didn’t think that temporary employees had to join
the union. And I told him, I said that anybody that does
bargaining [unit] work had a responsibility to join the
union. And he disagreed. And he said he would talk to
his attorney about that, and I said fine. And I said,
‘‘One of the most important things I want to do today
is get an agreement that these people will be allowed
into the union, because some of them have been work-
ing for the company for a year and a half.’’
And at that time Dominick asked how we would do
that, and I said, ‘‘Well, it shouldn’t be that much of a
problem.’’ I said that the guys are ‘‘just asking for
some holiday pay that they didn’t get, and they’d like
to have medical benefits.’’ So I said, ‘‘Well, we can
just kind of grandfather them into the unit, give them
some holiday pay, and start them on medical benefits.’’
And Dominick said that, ‘‘Well, if I did that, then it
would be 90 days before [his] insurance carrier would
allow them coverage.’’ And I said, ‘‘Well, we’ll have
to live with that then. That shouldn’t be a problem.
That’s the way its got to be, that’s way it’s got to be.’’
After that exchange, Courtemarsh says Macaluso thought
about the situation for a minute. Then, all of a sudden, he
said, ‘‘Well, I’ll fire them all first.’’ Courtemarsh says he
was taken aback by that response and asked on what grounds
would he fire them all. He says Macaluso replied, ‘‘‘For
poor work performance.’ And I thought about it and I said,
‘Well how would you justify firing all these people for poor
work performance when they have been working for you that
long?’ I said, ‘Do you have any documentation to support
that? You probably don’t have any documentation to support
anything like that, so how can you justify that?’ And he says,
‘Well then, I’ll just lay them all off.’’’
Courtemarsh says he could observe that Macaluso had be-
come very upset so he decided to back off saying, ‘‘I hate
to see you fire them all . . . it’s my intention to see that
these people get into the union one way or the other, and I’m
going to work to that end.’’ At that point the meeting con-
cluded.
Macaluso does not really deny Courtemarsh’s version. He
did testify that Courtemarsh ‘‘told me that he thought they
should be in the bargaining unit and not temps. And I said,
‘I disagree, you know, that I don’t believe they are covered
by the bargaining Agreement, and they were hired as temps.’
And he wanted them in the Union, and I wasn’t sure because
like I said—the Union contract, I haven’t seen it within 4 or
5 years. I mean the contract is actually a span from 1988 to
present . . . and I know that I did say that ‘I would probably
have to lay off a few of the temps.’ Now that I did say.’’
He denies getting into why he was laying them off. During
the hearing he explained that he did not tell Courtemarsh the
reasons for the layoff because Courtemarsh ‘‘didn’t ask.’’ He
also says he didn’t tell Courtemarsh that the city work had
slowed down nor did he tell him about any meetings he had
had with city officials, again because Courtemarsh ‘‘didn’t
ask.’’
With respect to both the slowdown of City work and the
meeting he had had with Don Keith, the City’s Director of
General/Communications Services and Frank Gonzalez, the
City Engineer, Macaluso gave some unclear testimony re-
garding when he made the decision to lay off two of the
temporary employees.
The reason for their layoff, according to Macaluso, was
the fact that the City had begun withholding work orders and
as a result, Respondent’s billings had fallen off, dramatically
in his opinion. He claims that the slowdown began in Janu-
ary 1994 triggering a trip to Los Angeles from Grants Pass
to meet with the city officials. He does not have a specific
date for that meeting, but says in early February he decided
to lay two people off.
At some point, however, he did meet with Keith and Gon-
zalez. At that meeting Gonzalez admitted to both Keith and
Macaluso that the engineering department, in the belief that
a new contractor might be taking over due to the new bid,
had withheld work orders. Keith, his superior, directed the
engineering department to resume providing work orders at
the same rate as it always had, because he did not wish any
new contractor to be overwhelmed by a crush of orders that
it could not handle. Accordingly, he gave directions to Gon-
zalez to resume the previous work level.
The timing of all of this is a bit unclear. Macaluso testi-
fied at one point that he had made the decision to lay off
the two temporaries sometime in early February, perhaps the
second week. He remembers it because that was when he
came to Los Angeles from Grants Pass to have the meeting
with Keith and Gonzalez. Later, he testified that he made the
decision to lay off Pitts and Greene ‘‘sometime prior to Feb-
ruary 25.’’ At yet another point he says, ‘‘I don’t believe I
met with the City before I met with Courtemarsh (on Feb-
ruary 23). In addition, he says he gave instructions to his
project manager, Keller, to select the two persons for layoff
about a week before the actual layoff.
It is again worth noting that on cross-examination,
Macaluso said that he did not advise Courtemarsh either of
his decision to lay off two individuals or of his meeting with
the city officials because Courtemarsh ‘‘didn’t ask.’’ He did
not assert that he had not yet had the meeting with the city
officials. Nor did he assert that he had made a decision to
discharge the two.
With respect to the events of February 25, Greene testified
that on February 24 he had been assigned to work at a large
project, the Southwest Police Station. He said there seemed
to be quite a bit of work to do, in his judgment, about 2 to
3 weeks. Indeed, the Southwest Police Station job was still
in progress at the time of the hearing, some 8 months later.
He observed his project leadman, Price Rogers, telephone
Keller at City Hall that day to ask him for additional men.
On the following day, February 25, Keller appeared at the
site with Pitts. Instead of Pitts joining the crew as might be
expected, however Keller took both Pitts and Greene to a
separate room where he advised them that they were being
laid off because of lack of work.
Both Pitts and Greene recall that Keller was most apolo-
getic, saying that the decision was not his. Greene remem-
bers Keller also saying that if more work came in, ‘‘You’ll
555COMCRAFT, INC.
3 See Lloyd A. Fry Roofing Co., 121 NLRB 1433, 1437–1438
(1958); M. J. Pirelli & Sons, 194 NLRB 240, 250 (1971).
4 For some reason those 10 were required to serve a 90-day proba-
tionary period beginning in May. That seems entirely unwarranted
give the fact that all of them had served satisfactorily for periods
of 9 to 15 months.
be the first to be called back.’’ Pitts did not recall that and
Keller denies it. Nonetheless, I do not think it is unreason-
able for Greene to have extrapolated that thought from
Keller’s handling of the situation.
Macaluso says he selected Greene and Pitts for layoff
based on Keller’s recommendation. Keller says he selected
Pitts because he was ‘‘slow’’ and he could not send Pitts out
on jobs by himself. That information, however, was second-
hand, coming from his two leadmen Rogers and Neiswonger.
Keller says that they told him Pitts was ‘‘not ready to be a
technician.’’ That seems to be a somewhat odd statement, be-
cause no one ever suggested that Pitts’ limited experience
qualified him to be a technician. At best, he was a trainee
and/or cable puller who was still learning. Keller then back-
tracked a bit and said that Pitts wasn’t ready to be an in-
staller either.
Keller says he selected Greene for layoff because he didn’t
believe he was working fast enough in the allotted time pe-
riod. He does agree that Greene was able to work on his own
and had been doing installer and technician work. Greene
says he had been sent by himself to jobs at least 25 times.
The collective-bargaining agreement describes the types of
tools that an employee is expected to purchase once he has
reached a specific level of skill. Both Greene and Pitts testi-
fied that they had been directed by Macaluso to purchase
tools at the skill level of at least an installer, if not of techni-
cian.
Furthermore, neither Greene nor Pitts had ever been ad-
vised by any management person, either Keller, his prede-
cessor Melendez, or the leadmen Rogers and Neiswonger,
that they needed either to improve their speed or the quality
of their workmanship. Indeed, Keller admits he had exhorted
the staff generally to pick up its speed, but never told anyone
in particular that they were having a specific problem. Keller
explains that he did not tell either of these two individuals
of their shortcomings because they were regarded as
‘‘temps’’ and he didn’t believe he needed to concern himself
with that.
IV. ANALYSIS AND CONCLUSIONS
The essential issue in this case is whether or not Macaluso
took a reprisal in response to Courtemarsh’s insistence that
the temporary employees be considered regular full-time em-
ployees and thus entitled to full benefits under the collective-
bargaining contract. In this regard, the most salient fact is
that Macaluso had made a deliberate decision not to report
any of the 12 temporary employees to the Union. As a bene-
fit to Respondent, 4 of them worked for over a year and 8
of them worked from August 1993 to January 1994, without
its having to pay fringe benefit costs, a form of free over-
head, until the Union discovered the presence of all 12 on
the payroll. When Courtemarsh raised the issue, Macaluso
argued that he was not obligated to tell the Union about them
because they were only temporaries and they were not enti-
tled to ‘‘be in the bargaining unit.’’
Whether the temporary employees are or are not properly
included in the bargaining unit is, in some respects, beside
the point. Even so, Respondent’s temporary employees are in
the unit by contract. Compare Pennsylvania Electric Co., 289
NLRB 1200 (1988). The only real issue is whether these two
individuals were discharged as a result of Courtemarsh’s con-
tention that the temporaries belonged in the bargaining unit.
His description of Macaluso’s reaction to his request: ‘‘I’ll
fire them first,’’ followed by the discharge of two of them
2 days later clearly establishes a prima facie case that Re-
spondent fired them for that reason.
First, union animus is quite clear. Macaluso deliberately
withheld the information from the Union that he had hired
12 temporary employees. The clause in the collective-bar-
gaining contract dealing with reporting employees to the
Union makes no distinction regarding whether such hires are
regarded as regular full-time, regular part-time, temporary or
any other possible status. It requires Respondent to report all
hires to the Union. It is at that point that their entitlement
to rights under the collective-bargaining contract become de-
termined. The fact that a temporary employee is not entitled,
by contract terms, to holiday pay or medical or retirement
benefits does not mean that he is to be regarded as unrepre-
sented. It simply means that those are specific benefits to
which he is not entitled. The employee is still entitled to the
contract rate of pay, to other benefits and may also be obli-
gated to join the Union under the union-security clause. Fur-
thermore, the Union is entitled to track so called temporary
employees in order to determine whether that appellation ac-
tually describes their status. Indeed, that very problem oc-
curred here, for none of these 12 knew how long their ‘‘tem-
porary’’ status was to last. It was not until it became aware
of them that the Union began making efforts to convert them
from temporary to regular full-time status.
Usually a temporary employee is hired for a finite period
of time or until a specific event occurs, often the completion
of a specific job.3 Here, that was not the case. Macaluso’s
explanation that he regarded them as ‘‘temporary’’ because
he didn’t know how long his firm would continue to main-
tain a contractual relationship with the City of Los Angeles
is not creditable. Regular full-time and/or permanent employ-
ees often are employed for only a short period of time. In-
deed, there is no evidence that any of the 12 employees were
ever told that their job status depended on whether or not
Respondent obtained a new business agreement with the
City. Clearly, absent the Union’s specific waiver, temporary
employees are in the bargaining unit. Here, there is no evi-
dence of such a waiver. These individuals were clearly in the
bargaining unit, both by law and by contract. Furthermore,
Respondent in May agreed with the Union to convert the re-
maining ten to permanent, full-time status, entitled to all the
benefits under the collective-bargaining contract.4
Thus, Respondent’s animus is apparent: Macaluso cava-
lierly ignored his collective-bargaining obligation in not re-
porting the new hires; his purpose behind that action was to
keep it secret from the Union, and his explanation for the
conduct does not make any real sense except that it is an
unpersuasive attempt to justify the secrecy. Nor is there any
reason to doubt Courtemarsh’s description of Macaluso’s re-
action when he realized that the jig was up.
Furthermore, timing is clearly present. The two were dis-
charged only 2 days after Courtemarsh raised the issue. It is
not unreasonable to infer that Respondent knew these two in-
556 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Knowledge of specific employees’ union sympathies and activi-
ties may be inferred from the surrounding circumstances, including
timing, precipitousness of the response or the pretextuous nature of
the assigned reason. Shattuck Denn Mining Corp. v. NLRB, 362 F.2d
466 (9th Cir. 1966).
6 Similarly, its evidence regarding employee shortened days is in-
conclusive. I have not detailed it here for it is subject to too many
interpretations to be a valid basis for a factual conclusion. I only
note that it leaves open such questions as whether a short day may
have been requested by the employee or a day off may have been
scheduled due to a holiday or other reason unrelated to business vol-
ume.
7 United Graphics, 281 NLRB 463 (1986).
dividuals had spoken up during the meeting conducted by
Courtemarsh. It is strange indeed that the only two persons
who seem to have had the temerity to speak up about their
situation are the same two persons who were fired shortly
thereafter. I do not regard that situation as mere coincidence,
but evidence that Macaluso, probably through Keller’s ef-
forts, had pinpointed Greene and Pitts as being as the prin-
cipals concerned with their right to union representation. In
picking those two, Respondent could send a clear message
to the group, that asking for rights under the union contract
was a dangerous proposition for persons whose employment
status was less than perfect.5
Clearly the General Counsel has made out a prima facie
case that Respondent has taken a reprisal against those who
actively sought union representation. See Ironton Publica-
tions, 313 NLRB 1208, 1212 (1994). That case plainly dem-
onstrates that a bargaining unit employee cannot lawfully be
penalized simply because he decides to join the union.
It therefore becomes incumbent upon Respondent to dem-
onstrate that these two individuals would have been fired
even in the absence of the elements shown. See Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982). To meet that duty, it ig-
nores the evidence of animus, concentrating instead on insist-
ing that the timing was wrong for such a decision.
Macaluso’s testimony is inconsistent, however, and I do not
fully accept Keller’s attempt at corroboration. The key, how-
ever, is Respondent’s claim that the whole decisional process
was triggered by a temporary downturn in business which
was caused by a City mistake. In this regard, Respondent’s
timing argument is unpersuasive even if I accept Respond-
ent’s sequence. Once Respondent had the meeting with the
City officials, whether it was 3 weeks before the discharge
or only a few days before the discharge, it knew that the re-
duced level of work orders was a mistake which had been
countermanded. After it learned of the countermand there
was no reason to lay anybody off, for work almost imme-
diately resumed its previous level. Indeed, the reduced level
of business lasted for only about 2 weeks, perhaps a little
longer. Clearly Macaluso knew by the time he focused on
Pitts and Greene that the hiccup in business was over. He
also admitted that fluctuations in monthly billings were com-
mon.
Even aside from that, it is my view that the numbers do
not support Respondent’s defense. In this regard the total
revenues beginning in April 1993 are as follows:
April 1993 $89,000
May 1993 88,000
June 1993 83,000
August 1993 95,800
September 1993 137,000
October 1993 [not in evidence]
November 1993 132,000
December 1993 135,000
January 1994 98,000
February 1994 64,800
March 1994 71,600
April 1994 152,000
As the General Counsel observes, those figures suggest
that 1994 is hardly any different from 1993, the same year
Respondent found it to be a volume of business sufficient to
warrant the hiring of the eight temporaries in August 1993.
Although perhaps arguments can be made both ways, Re-
spondent’s view is clearly not conclusive and certainly not
enough to rebut the prima facia case. Accordingly, I con-
clude that Respondent violated Section 8(a)(3) and (1) of the
Act when it discharged Greene and Pitts on February 25.6
Although, however, it is clear that Respondent failed to
honor that portion of the collective-bargaining contract that
required it to report new employees to the Union, it is not
so clear that such conduct is reachable in this proceeding. I
have no doubt that breaching such a contract clause during
the 6-month statute of limitations set forth by Section 10(b)
of the Act, would violate Section 8(a)(5),7 but it appears that
this conduct is outside of that reach. The charge was filed
on April 13, 1994, and the 6-month period extends back only
to October 13, 1993. As Respondent’s last hire, which it
should have reported occurred in August 1993, it is clear that
the statute of limitations bars any remedy in this regard. Ac-
cordingly, that portion of the complaint will be dismissed.
V. REMEDY
Having found Respondent to have engaged in certain un-
fair labor practices, I find that it should be ordered to cease
and desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act. The affirmative
action shall require Respondent to immediately offer Greene
and Pitts full reinstatement to their previous jobs or, if those
jobs are no longer available, to substantially equivalent jobs
and to make them whole them for any loss of earning or
other benefits, computed on a quarterly basis from the date
of discharge to the date of a proper offer of reinstatement,
less net interim earning as prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), plus interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987). Re-
spondent shall be required to convert them to permanent full-
time employees in the same fashion it did the 10 temporary
employees in May 1994, except that Respondent shall not re-
quire them to serve a new probationary period. In addition,
Respondent shall be the subject of an expunction order. See
Sterling Sugars, 261 NLRB 472 (1982).
Based on the foregoing findings of facts and analysis, I
make the following
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
557COMCRAFT, INC.
8 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusion, and rec-
ommended 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.
9 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.’’
2. Communications Workers of America, Local 9503,
AFL–CIO is a labor organization within the meaning of Sec-
tion 2(5) of Act.
3. By discharging its employees Herndon Greene and
Johnnie Pitts on February 25, 1994, because the Union
sought to represent them, Respondent violated Section
8(a)(3) and (1) of the Act.
4. Respondent has not committed any other violation of
the Act within the period prescribed by Section 10(b) of the
Act.
Based on the foregoing findings of fact and conclusions of
law, as well as the entire record, I issue the following rec-
ommended8
ORDER
The Respondent, Comcraft, Inc., Los Angeles, California,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any
employee for supporting or joining or seeking to support or
join Communications Workers of America, Local 9503,
AFL–CIO or any other labor organization.
(b) In any like or related manner threatening, restraining,
or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Immediately offer Herndon Greene and Johnnie Pitts
immediate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or other rights or
privileges previously enjoyed, and make them whole for any
loss of earnings and other benefits suffered as a result of the
discrimination against them, in the manner set forth in the
remedy section of the decision. This shall include treating
them in the same manner as if they had remained employed
through May 1994 and converted to permanent full-time em-
ployees with the others and entitled to all of the benefits that
a full-time permanent employee would normally enjoy from
that date, except that no new probationary period may be im-
posed upon them.
(b) Remove from its files any reference to the unlawful
discharges of Greene and Pitts and notify them in writing
that this has been done and that the discharges will not be
used against them in any way.
(c) Preserve and, upon request, make available to the
Board or its agents for examination and copying all payroll
records, social security payment records, timecards, personnel
records and reports and all other records necessary to analyze
the amount backpay due under the terms of this order.
(d) Post at its offices in Los Angeles and Northridge, Cali-
fornia, copies of the attached notice marked ‘‘Appendix.’’9
Copies of this notice on forms provided by the Regional Di-
rector for Region 31, after being signed by Respondent’s au-
thorized representative, shall be posted by Respondent imme-
diately upon receipt 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 Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this order what steps 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.