Commercial Workers Local 56 (Super Fresh Food Markets)

National Labor Relations Board - Board Decisions

Jan 31, 1995

316 N.L.R.B. 182 (N.L.R.B. 1995)

191
316 NLRB No. 37
BODGE ELECTRICAL CONTRACTORS
1 The General Counsel has excepted to the judge’s omission from
his recommended notice of the affirmative actions required of the
Respondent—that it offer employment to Frederick Schulze and
make him whole for any earnings lost by reason of the Respondent’s
discrimination against him. We find merit in the General Counsel’s
exception.
1 All dates herein are for 1993 unless otherwise indicated.
2 Certain errors in the transcript have been noted and corrected.
Bodge Electrical Contractors, Inc. and International
Brotherhood of Electrical Workers, Local 43.
Case 3–CA–17635
January 31, 1995
DECISION AND ORDER
BY MEMBERS STEPHENS, COHEN, AND
TRUESDALE
On September 2, 1994, Administrative Law Judge
Marvin Roth issued the attached decision. The General
Counsel filed a limited exception and a memorandum
in support of the exception.
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 exception and the memorandum
in support of the exception and has decided to affirm
the judge’s rulings, findings, and conclusions and to
adopt the recommended Order as modified below.1
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Bodge
Electrical Contractors, Inc., Syracuse, New York, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order except that the attached
notice is substituted for that of the administrative 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 discourage membership in Inter-
national Brotherhood of Electrical Workers, Local 43,
or any other labor organization, by discriminatorily re-
fusing to consider for employment or refusing to hire
job applicants, or in any other manner discriminating
against employees with regard to their hire or tenure
of employment or any term or condition of employ-
ment.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of your
right to engage in union or concerted activities, or to
refrain therefrom.
WE WILL offer Frederick Schulze immediate and full
employment to the electrician position for which he
applied, or if such job no longer exists, to a substan-
tially equivalent position, without prejudice to his se-
niority or other rights and privileges, and we will make
him whole for any loss of earnings and benefits that
he may have suffered from the date of his application
for employment until the date he is offered employ-
ment.
WE WILL expunge from our files any reference to
the failure and refusal to hire or consider Frederick W.
Schulze for employment, and notify him in writing that
this has been done and that evidence of this unlawful
conduct will not be used as a basis for future personnel
actions against him.
BODGE ELECTRICAL CONTRACTORS, INC.
Ron Scott, Esq., for the General Counsel.
DECISION
STATEMENT OF THE CASE
MARVIN ROTH, Administrative Law Judge. This case was
heard at Syracuse, New York, on August 5, 1994. The
charge was filed on February 8, 1993, by International Broth-
erhood of Electrical Workers, Local 43 (the Union).1 The
complaint, which initially issued on March 25, alleges that
Bodge Electrical Contractors, Inc. (the Company or Respond-
ent) violated Section 8(a)(1) and (3) of the National Labor
Relations Act (the Act). The gravamen of the complaint is
that on or about January 26 the Company allegedly refused
to hire Frederick W. Schulze because of his union member-
ship.
The Company subsequently entered into an informal settle-
ment agreement, which was approved on October 29. The
Company failed to comply with the terms of that settlement
agreement. Therefore, the Regional Director issued an order
vacating the settlement agreement and reissuing the com-
plaint.
The Company filed an answer denying the commission of
the alleged unfair labor practices. The Company is presently
in bankruptcy. The Company and the trustee in bankruptcy
declined either to withdraw the answer or to appear at the
hearing. General Counsel was the only counsel to enter an
appearance at the hearing. General Counsel presented its evi-
dence and oral argument and waived the filing of a brief, but
submitted a position letter.
Upon the entire record in this case,2 and from my observa-
tion of the demeanor of the only witness, and having consid-
ered the positions of the parties, I make the following
192 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Under New Horizons, interest on and after January 1, 1987 is
computed at the ‘‘short-term Federal rate’’ for the underpayment of
taxes as set out in the 1986 amendment to 26 U.S.C. § 6621.
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The Company, a corporation with an office and place of
business in Watertown, Connecticut and at various project lo-
cations in New York State, including a project at Warner’s
Rest Stop, west of Syracuse, New York, on the New York
State Thruway (jobsite), has been engaged as an electrical
contractor in the building and construction industry. In the
conduct of its business, the Company during 1993 purchased
and received at the jobsite, goods and materials valued in ex-
cess of $50,000 directly from points outside the State of New
York. I find, as the Company admits, that, at all times mate-
rial to this proceeding, it has been an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Frederick Schulze, General Counsel’s only witness, testi-
fied in sum as follows: He is a journeyman electrician, and
has worked at the trade since 1977. In late January, he re-
sponded to a want ad in a Syracuse, New York newspaper
seeking commercial electricians with 5 years’ experience.
Schulze had such qualifications. He called for and arranged
for an interview at the jobsite. When he arrived at Warner’s
Rest Stop on January 25 or 26, he was directed to the Com-
pany’s trailer. The person who appeared to be in charge
identified himself as being with the Company, and told
Schulze that he was at the right place for an interview.
Schulze further testified in sum as follows: He filled out
a job application, and gave the interviewer his three-page re-
sume. The last page included a copy of Schulze’s current
IBEW dues’ receipt. The interviewer asked questions about
Schulze’s prior employment. The interviewer then referred to
the last page of Schulze’s resume, saying: ‘‘you’re union? I
can’t use you, you’re union. I can’t hire anybody from the
union.’’ Schulze explained that the Union told him that they
had no problem with his working for the Company because
the Company was paying the prevailing wage rate. The inter-
viewer responded by making derogatory remarks about the
Union, and insisted that he was not going to hire union.
Schulze left, leaving his application with the interviewer. He
did not thereafter hear from the Company.
I credit Schulze’s uncontroverted testimony. On the basis
of that testimony, General Counsel presented a prima facie
case that the Company failed and refused to hire Schulze be-
cause of his union membership. As the Company gave no
other explanation for rejecting Schulze’s application, it fol-
lows that the Company failed to meet its burden of establish-
ing that it would have failed or refused to hire him in the
absence of such membership. The Company thereby violated
Section 8(a)(1) and (3) of the Act. Presbyterian University
Hospital, 295 NLRB 1139 (1989), enfd. 914 F.2d 244 (3d
Cir. 1990); Young Hinkle Corp., 244 NLRB 264, 267 (1979).
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 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. By discriminatorily failing and refusing to hire Fred-
erick Schulze, thereby discouraging membership in the
Union, the Company has engaged, and is engaging, in unfair
labor practices within the meaning of Section 8(a)(3) of the
Act.
4. By interfering with, restraining, and coercing potential
employees in the exercise of the rights guaranteed them in
Section 7 of the Act, the Company has engaged, and is en-
gaging, in unfair labor practices within the meaning of Sec-
tion 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that the Company has committed violations
of Section 8(a)(1) and (3) of the Act, I shall recommend that
it be required to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the policies of
the Act.
The evidence does not indicate that the Company was hir-
ing employees with any limitation as to a particular job or
other condition. Therefore, the usual remedy of an offer of
employment and backpay is appropriate. I shall leave for the
compliance stage of this proceeding, the matter of whether
the Company is permanently out of business, or otherwise in-
capable or not required to comply with any remedy provi-
sions.
Having found that the Company discriminatorily failed and
refused to hire Frederick W. Schulze, I am recommending
that the Company be ordered to offer him employment to the
electrician position for which he applied, and make him
whole for any loss of earnings and benefits that he may have
suffered from the date of his application for employment
with the Company to the date of the Company’s offer of em-
ployment.
I shall also recommend that the Company be ordered to
expunge from its records any reference to the failure and re-
fusal to hire or consider Schulze for employment, to give
him written notice of such expunction, and to inform him
that this unlawful conduct will not be used as a basis for fur-
ther personnel actions against him. See Sterling Sugars, 261
NLRB 472 (1982). Backpay shall be computed in accordance
with the formula approved in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as computed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).3 It will also
be recommended that the Company be required to preserve
and make available to the Board or its agents, on request,
payroll and other records to facilitate the computation of
backpay due.
193BODGE ELECTRICAL CONTRACTORS
4 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, 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.
5 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.’’
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Respondent, Bodge Electrical Contractors, Inc., its of-
ficers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discouraging membership in International Brotherhood
of Electrical Workers, Local 43, or any other labor organiza-
tion, by discriminatorily refusing to consider for employment
or refusing to hire job applicants, or in any other manner dis-
criminating against employees with regard to their hire or
tenure of employment or any term or condition of employ-
ment.
(b) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Frederick Schulze immediate and full employ-
ment to the electrician position for which he applied, or if
such job no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or other rights and
privileges, and make him whole for any losses he suffered
by reason of the discrimination against him as set forth in
the remedy section of this decision.
(b) Expunge from its files any reference to the failure and
refusal to hire or consider Schulze for employment, and no-
tify him in writing that this has been done and that evidence
of this unlawful conduct will not be used as a basis for fu-
ture personnel actions against him.
(c) Preserve and, on 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 of backpay due.
(d) Post at its Watertown, Connecticut office and place of
business, and at its jobsites within a 50-mile radius of Syra-
cuse, New York, copies of the attached notice marked ‘‘Ap-
pendix.’’5 Copies of the notice, on forms provided by the
Regional Director for Region 3, after being signed by the
Respondent’s authorized representative, shall be posted by
the Respondent immediately 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 the Respondent to ensure
that the notices are not altered, 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 the Respondent has
taken to comply.