Compressed and Open Air Caisson and Subway Workers

National Labor Relations Board - Board Decisions

Jan 23, 1979

240 N.L.R.B. 30 (N.L.R.B. 1979)

30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Compressed and Open Air Caisson and Subway
Workers, Local Union No. 420 affiliated with La-
borers International Union of North America, AFL-
CIO and Contractors Association of Eastern Penn-
sylvania. Case 4-CC-1048
January 23, 1979
DECISION AND ORDER
By CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On May 30, 1978, Administrative Law Judge Rich-
ard L. Denison issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings,' findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Compressed and Open Air
Caisson and Subway Workers, Local Union No. 420
affiliated with Laborers International Union of
North America, AFL-CIO, its officers, agents, and
representatives, shall take the action set forth in the
said recommended Order.
Respondent argues that due process was not observed when the Admin-
istrative Law Judge held and completed the hearing on April 17. 1978, in the
absence of Respondent and its counsel, who failed to appear after prior
notification that the hearing was scheduled for that date. In this connection.
it contends that the Administrative Law Judge (I) improperly rejected its
explanation for its nonappearance and (2) denied its motion to reopen the
hearing in order to permit it to present its case before issuing his Decision
herein, Accordingly, as Respondent renewed the motion, the Board in an
Order dated September 28, 1978, invited Respondent to submit evidence in
support thereof. As Respondent has not replied to that invitation, we affirm
the Administrative Law Judge's denial of its motion.
DECISION
STATEMENT OF THF CASE
RICHARD L. DENISON. Administrative Law Judge: This
case was heard before me in Philadelphia, Pennsylvania,
240 NLRB No. 28
on April 17, 1978.' The charge in Case 4-CC 1048 was
filed by the Contractors Association of Eastern Pennsylva-
nia, the Charging Party, on March 22, 1978, and was
served on Respondent on March 22, 1978, by certified
mail. The complaint and notice of hearing, issued March
30, 1978, alleges that Respondent violated Section
8(b)(4)(ii)(B) of the National Labor Relations Act, as
amended, in that on or about March 21, 1978, Respondent,
through its business agent, Fred McBride, threatened Ac-
chione and Canuso, Inc., the utility contractor on a project
for the construction of sanitary and storm sewers at 34th
and Zoological Streets in Philadelphia, Pennsylvania, with
a work stoppage of Acchione employees if Acchione did
not stop doing business with L & R Construction Co., Inc.,
the subcontractor engaged by Acchione for the work of
placing steel reinforcement rods into concrete forms on
that project. The General Counsel alleges further that an
object of Respondent's alleged conduct was and is to force
or require Acchione and other persons to cease using, sell-
ing, handling, transporting, or otherwise dealing in the
products of, and to cease doing business with, L & R.
The complaint and notice of hearing set II a.m. e.s.t.,
April 17, 1978, as the date and time for the hearing in this
matter. Respondent's answer denied the commission of
any of the unfair labor practices alleged in the complaint.
All briefs filed in this case have been carefully considered.
Upon the entire record in the case, including my observa-
tion of the witnesses, I make the following:
FINDIN(iS OF FACT
I J:RISDI(CTION
Acchione and Canuso, Inc., hereinafter called Acchione,
is a Pennsylvania corporation with a principal office and
place of business located in Philadelphia, Pennsylvania.
Acchione is engaged in the business of a general contractor
in the building and construction industry. During the past
year Acchione purchased approximately $70,000 worth of
materials and supplies from suppliers located outside the
Commonwealth of Pennsylvania. Acchione's gross volume
of business ranges from between $6 million and $80 million
per year. I find that Acchione is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
L & R Construction Co., Inc., hereinafter called L & R,
is a New Jersey corporation engaged in the business of
cement reinforcement contracting in the building and con-
struction industry. Its principal office and place of business
is located in Audubon, New Jersey. During the past year L
& R received over $50,000 for work performed for custom-
ers outside the State of New Jersey. I find that L & R is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
Counsel of record for Respondent. rank Willi;ams, Esq.. or any repre-
sentatise or witness for Respondent, failed it appear at the hearing, and
after due notice the hearing proceeded toi a conclusion. (ounsel for Respon-
dent's motion toi reopen the record, based on insufficient reasons under the
circumstances presented, has been denied.
COMPRESSED AND OPEN AIR CAISSON WORKERS 31
II. LABOR ORGANIZATION
I find that Compressed and Open Air Caisson and Sub-
way Workers, Local Union No. 420 affiliated with Labor-
ers International Union of North America, AFL-CIO,
hereinafter referred to as Local 420, is a labor organization
within the meaning of Section 2(5) of the Act.
III THE AI.I.EGED UNFAIR LABOR PRACTICES
Acchione is a member of the Contractors Association of
Eastern Pennsylvania, which has a collective-bargaining
agreement with the Laborers District Council of the Met-
ropolitan Area of Philadelphia & Vicinity, of which Local
420 is a member. Acchione is currently engaged in a con-
struction project located at the Philadelphia Zoo pursuant
to a contract with the city of Philadelphia. Daniel R. Ac-
chione, treasurer of the corporation, described the nature
of the work to be performed as ". . . a tunnel job . . .that
connects two conduits for approximately 3,500 feet."
Acchione's laborers are performing work in the tunnel
which terminates at a Y-shaped junction chamber connect-
ing the two conduits. Acchione subcontracted the work of
placing reinforcing rods in the concrete junction chamber,
a difficult, exacting, and highly specialized type of work, to
L & R, a member of an employer bargaining association
known as the General Building Contractors Association,
which has a collective-bargaining agreement with Local
Union No. 405, International Association of Bridge, Struc-
tural, and Ornamental Iron Workers, AFL-CIO. L & R
was scheduled to begin this work at the zoo project on
March 22. About 3:45 p.m. on the afternoon of March 21,
Acchione's project superintendent on the job, William
Ramsdell, had a conversation with Fred McBride, Local
420's business agent, in Acchione's field office on the job-
site. McBride stated that he had heard that they were going
to have rod setters on the job the next day and also that
Acchione was set up to pour concrete. He said that if
Ramsdell wanted to pour concrete, he had better cancel it
until some things were straightened out. Ramsdell stated
that L & R was going to come up to the junction chamber
and start to tie rebars. McBride ended the conversation by
stating that they had better cancel the concrete pour until
some things were straightened out. Ramsdell testified that
he had ordered concrete for the following morning, which
he intended to have poured in the tunnel, utilizing his peo-
ple who were represented by Local 420. After McBride left,
Ramsdell called Daniel Acchione and told him that they
had a problem with the rod setters coming and that their
people were going to be pulled off the job. As confirmed by
Acchione's testimony, Acchione shortly thereafter instruct-
ed Ramsdell to call Gerald Rizzo, the outside superinten-
dent for L & R, and to cancel the rod setters for the follow-
ing day in order that the concrete could be poured. As
confirmed by the testimony of Joseph Fabrizio, otherwise
known as Joe Rizzo, Ramsdell complied with these instruc-
tions, and L & R did not send their rod setters to the zoo
project on March 22. Later, Daniel Acchione explained to
Fabrizio, L & R's estimator supervisor, that they were hav-
ing a problem with the sandhogs claiming his work.
At 6:45 a.m. on March 22, Ramsdell again talked with
McBride outside the field office on the project. Ramsdell
told McBride that the rod setters were not coming that day
and asked if he would be able to go through with the con-
crete pour, since the concrete was still coming. McBride
answered that as long as there were no rod setters coming
on the job there would not be any problem. Ramsdell
thanked McBride for warning him the night before about
the problem, and McBride left. According to Fabrizio, af-
ter obtaining an injunction on Friday, March 31, L & R
began the reinforcing work on the zoo project on the fol-
lowing Monday. As of the date of the hearing, this work
was only partially completed.
It is clear, based on the testimony of Ramsdell, that in
Ramsdell's conversations with Fred McBride on March 21
and 22 McBride made it plain that Acchione would be
faced with a work stoppage of its employees represented by
Local 420 if Acchione attempted to utilize employees of L
& R to place the steel reinforcement rods in the junction
chamber. Thus, since the Respondent clearly threatened
Acchione with a work stoppage of its employees with an
object of getting L & R removed from the job, I find and
conclude that Respondent engaged in unfair labor prac-
tices in violation of Section 8(b)(4)(ii)(B) of the Act.
CONCLUSIONS OF LAW
I. Acchione and Canuso, Inc., and L & R Construction
Co., Inc., are each employers engaged in commerce within
the meaning of Seciton 2(2), (6), and (7) of the Act.
2. Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By threatening Acchione with a work stoppage of its
employees with an object of forcing Acchione to cease
doing business with L & R on the zoo project, Respondent
violated Section 8(bX4)(ii)(B) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order that Re-
spondent cease and desist therefrom take certain affirma-
tive action designed to effectuate the policies of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER
Respondent, Compressed and Open Air Caisson and
Subway Workers, Local Union No. 420 affiliated with La-
In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions. and recommended Order herein shall. as provided in Sec.
102.48 of the Rules and Regulations, be adopted b the Board and become
its findings. conclusions. and Order, and all objections thereto shall be
deemed walsed for all purposes
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
borers International Union of North America, AFL-CIO,
its officers, agents, and representatives, shall:
1. Cease and desist from threatening, restraining, or
coercing persons engaged in commerce or in industry af-
fecting commerce with an object of forcing or requiring
such persons to cease doing business with L & R Construc-
tion Co., Inc.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Post at its offices and meeting hall copies of the at-
tached notice marked "Appendix." Copies of the notice,
on forms provided by the Regional Director for Region 4,
after being signed by an authorized representative of Re-
spondent, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to members are customarily post-
ed. Reasonable steps shall be taken by Respondent to in-
sure that said notices are not altered, defaced, or covered
by any other material.
(b) Sign and mail copies of the notice to the Regional
Director for posting by Acchione and Canuso, Inc., it
being willing, at all locations where notices to its employ-
ees are customarily posted.
(c) Notify the Regional Director for Region 4, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
3 In the event that 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten, coerce, or restrain Acchione
and Canuso, Inc., or any other person engaged in
commerce or in an industry affecting commerce where
an object thereof is to force or require such person to
cease and desist from doing business with L & R Con-
struction Co., Inc.
COMPRESSED AND OPEN AIR CAISSON AND SUBWAY
WORKERS. LOCAL UNION No. 420 AFFILIATED WITH
LABORERS INTERNATIONAL UNION OF NORTH
AMERICA, AFL-CIO