Current Construction Corp.

National Labor Relations Board - Board Decisions

Mar 15, 1974

209 N.L.R.B. 718 (N.L.R.B. 1974)

718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Current Construction Corp. and Samuel M. Wagner
and Local 282, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America. Cases 29-CA-2917 and
29-CA-2918
March 15, 1974
DECISION AND ORDER
On June 28 , 1973, Administrative Law Judge
Marion C . Ladwig issued the attached Decision in
this proceeding . Thereafter , counsel for General
Counsel and counsel for Respondent filed exceptions
and supporting briefs.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and finds merit in certain of Respondent's
exceptions relating to the jurisdiction of the Board.
The Board has decided not to assert jurisdiction in
this case . It therefore adopts only those findings of
the Administrative Law Judge that are consistent
with this Decision and does not adopt his conclu-
sions and recommendations.
Respondent is a joint venture engaged in pruning,
cutting , and removing trees in New York City under
contracts let by the Parks Department of New York
City, an entity exempt from the Board 's jurisdiction
under Section 2(2) of the Act. Admittedly Respon-
dent renders to the city services which constitute
sufficient indirect outflow for the assertion of the
Board's jurisdiction . Respondent argued to the
Administrative Law Judge , however , that the Board
should not assert jurisdiction here because the
services Respondent performed for the Parks Depart-
ment are intimately connected with the department's
exempt operation and because the department by
contract and in practice retained a pervasive degree
of control over Respondent with respect to the
manner of its performance of work and with respect
to its labor relations.' The Administrative Law
Judge , in asserting jurisdiction , found, however, that
Respondent exercised sufficient effective control
over the working conditions of its employees so as to
be able to bargain with the Union in accord with the
provisions of the Act. We disagree.
A reading of the contracts in evidence which
Respondent has with the Parks Department clearly
indicates the pervasive degree of control that the
Parks Department maintains over Respondent and
its operations . For example, Respondent's tree
i The Board has frequently declined to assert jurisdiction over
contractors performing services for organizations which , like the Parks
Department of the City of New York, are exempt from the processes of the
Act. See, e.g, The Prophet Co, 150 NLRB 1559, Slater Corporation, 197
NLRB 1282; The Wackenhut Corp, 203 NLRB No. 3 Cf. Herbert Harvey,
Inc, 171 NLRB 238, enfd. 424 F 2d 770 (C A.D C.. 1969)
pruning contract with the city contains detailed
specifications and special provisions, requiring trees
to be pruned in accord with accepted horticultural
practice, in accord with the specifications for work
and materials, and as directed by the horticultural
officer, by experienced pruners and with the proper
tools in a good workmanlike manner. A job cannot
proceed without a resident engineer'2 i.e., city
inspector, present and this individual has, by
contract, the power in the first instance to inspect,
supervise, and control the performance of the work.
The contract states generally that all of the work
shall be subject to the city engineer's, i.e., architect's,
determination unless the approval of someone else is
expressly called for. To that end, the contract gives
the engineer the authority to determine the amount,
kind, quality, and location of the work; the authority
to reject any means and method of work which in his
judgment would constitute a hazard to persons or
property or would not produce finished work in
accord with the contract; the right to have submitted
to him by the contractor a "proposed progress
schedule" showing a proposed sequence of work
schedule which may be revised until satisfactory to
the engineer; 3 and the authority to determine when
the work is finally completed.
The contract further states generally that all work
is to be performed to the satisfaction of the
commissioner of the Parks Department and that the
commissioner has the authority to direct the contrac-
tor to discharge any employee who, in the opinion of
the commissioner, is "incompetent, unfaithful or
disobedient."
The contract further covers such diverse areas as a
requirement that the contractor is to remove all trash
and debris; that the work is to be performed in a 5-
day, 40-hour week, except for legal holidays; and
that the contractor is to obtain manufacturers'
warranties on equipment and materials used in
repairing, rebuilding, and restoring work. The con-
tract also covers such areas as the minimum
prevailing wages and benefits that Respondent must
pay, on job training for minority groups, nondiscri-
minatory hiring practices, and insurance require-
ments.
In actual practice, also, the city has a substantial
degree of control over Respondent's operations. As
noted above, Respondent's operation cannot proceed
unless an inspector is present and often times there is
more than one inspector on the job at any one time.
The inspectors determine which trees to prune, which
2 The resident engineer is the delegated representative of the city's
engineer or architect.
3 By contract , the date on which work is to begin is set by the
commissioner of the Parks Department and the contractor must inform the
city of any delays and apply to it for any needed extensions of time
209 NLRB No. 86
CURRENT CONSTRUCTION CORP.
branches should be cut, and how the cutting should
be done. The scope of the inspectors' day-to-day
authority is shown in the daily report which he
submits. On this report, the inspector separately lists
and identifies by species, size, and street address each
of the several hundred trees which have been pruned
(or cut) that day. Any defects in performance (such
as low tips or inadequate sweepings) are noted on a
tree-by-tree basis and must be corrected to the
inspector's satisfaction. As noted by the Administra-
tive Law Judge, it is the inspector who makes the
final decision on which limbs to cut, and he may stop
the job if the cleanup crew is too far behind the
trimmers.
From all of the above, it is clear to us that the
degree of control the city exerts over Respondent's
operation is such that Respondent cannot effectively
bargain with any union. We note that Respondent's
contract with the city prescribes virtually all of the
basic working conditions customarily found in
collective-bargaining agreements. On the jobsite,
Respondent's operations are further controlled by
the city inspectors who fill out status sheets on every
tree Respondent's men work on and who have the
authority to order rework on a tree until it meets with
their approval.4
This degree of control is further emphasized by the
power given the Parks Department commissioner to
order a contractor, like Respondent, to discharge any
employee who in the commissioner's estimate is
incompetent, unfaithful, or disobedient. And al-
though Respondent initially hires its own work force
even that authority is limited by the contractual
requirement that Respondent first hire New York
State residents if they are available.
We note also that the services Respondent per-
forms of trimming and cutting trees are ones
intimately connected with the exempt operation of
the Parks Department and are the same kind of
governmental-type services as employees of the
Parks Department perform.5
4 In reaching this conclusion, we do not overrule the Administrative Law
Judge's fording that certain inspectors on Respondent 's Job may have gone
beyond the bounds of their authority and directly supervised and given
orders to Respondent 's men we accept as true the Administrative Law
Judge 's conclusion that inspectors ordinarily work through the contractor's
own supervisors when specific problems arise This agreement with the
Administrative Law Judge does not alter, however , the strong degree of
control that the inspectors possess by contract and in practice as set out in
our decision and does not alter our conclusions on the degree of control
Nor does our decision condone the "less than arms-length relationship"
which existed between Respondent and certain of the inspectors as noted by
the Administrative Law Judge This short -lived illicit relationship , however,
does not affect our final conclusions here
Chairman Miller is not persuaded that the similarity of the services
performed here to those performed by Parks Department employees is truly
relevant to the issue before us, but concurs in all other respects with the
decision and the opinion herein
a Slater Corporation, 197 NLRB 1282, Servomation Mathias Pa, Inc. 200
NLRB No 136; The Wackenhut Corp.. 203 NLRB No 3.
719
Therefore, for all the above reasons, we decline to
assert jurisdiction herein.6
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
MEMBER FANNING, dissenting:
The Administrative Law Judge found that Respon-
dent was an employer engaged in commerce within
the meaning of Section 2(2) of the Act and that it
would therefore effectuate the policies of the Act for
the Board to assert jurisdiction here. He further
found that Respondent had committed numerous
violations of Section 8(a)(1) and (2) of the Act; had
discharged 11 employees of its cleanup crew in
violation of Section 8(a)(3); but had not violated
Section 8(a)(5) of the Act as alleged. I would affirm
these findings of the Administrative Law Judge? and
I dissent from the majority's refusal to assert
jurisdiction here.
Respondent works with its own equipment and has
the first right to choose the means and method
whereby it is to do its work. Respondent hires its own
employees and trains, transfers, and promotes them
as it sees fit. It directly supervises its employees' work
and discharges its employees as it deems necessary.
Respondent can set its own wages subject only to the
qualification that the wages be not less than the
prescribed prevailing wages set out in the contract. It
can also provide whatever production bonuses it may
find advantageous.
It is clear therefore that whatever the degree of
control over Respondent's operation possessed by
the Parks Department, Respondent is still capable of
engaging in meaningful collective bargaining with
any labor organization its employees may designate
as their representative. The majority appears to
misconceive the test in this area by emphasizing
r 1 would also find merit in General Counsel's exception to the failure of
the Administrative Law Judge to find certain additional actions of
Respondent to be violations of Sec. 8(a)(l) and (2) of the Act Though
related to the other acts of unlawful assistance he had found, the
Administrative Law Judge refused to find these additional acts of
Respondent violative of the Act since the complaint contained no specific
allegation -, concerning the additional conduct However, since these
additional acts were related to the other acts of assistance alleged and found
by the Administrative Law Judge, and since they were fully litigated at the
hearing with no objections being raised , I would find them to be violations
Jones Plastic and Engineering Corp., 186 NLRB 947. fn. 3. Thus I would find
that Respondent violated Sec . 8(a)(1) and (2) of the Act when it paid
initiation fees for two of its employees to Laborers Local 731 on June 23.
1972: when it directed checkoffs to be signed by its employees to Loca! 731
on June 23 , 1972. in the absence of a contract with that union; when it
remitted welfare and pension fund payments to Local 731 for certain of its
employees, and when it required its employees to sign application and
checkoff cards for Sanitation Local 813 on February 25, 1972.
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
those factors demonstrating the control the Parks
Department may possess over Respondent's opera-
tion. But they nowhere come to grips with the
standard as noted in our decision in Herbert Harvey,
Inc.,8 of whether, regardless of the exempt organiza-
tion's control, the employer over whom jurisdiction is
sought is still capable of bargaining effectively with a
labor organization over conditions of employment.
In Herbert Harvey, where the Board found the
exempt organization a joint employer, jurisdiction
was still asserted over the employer performing
services for the exempt organization where it was
shown that the employer performing those services
still possessed the ability to exercise effective control
over the working conditions of its employees.
And in a case whose facts are strikingly similar to
those here, the Board asserted jurisdiction over a
group of employers who provided aircraft and
personnel to agencies of the Federal Government
and the State of California to fight forest fires in that
State .9 There, the employers, pursuant to contracts,
sent pilots and material to various bases operated by
both agencies where the pilots waited to be dis-
patched to fires. When the employers bid on the
contracts they had to supply the names and qualifi-
cations of the various personnel they were going to
use and both agencies reserved the right to reject a
proposed pilot on grounds ranging from safety to
attitude to personal appearance. The agencies also
approved the work assignments, transfers, and
occasional promotions of the various personnel and
provided annual training and evaluation for the
airmen. When the personnel were dispatched to fight
fires their orders came from agency personnel and, in
the air, they were supervised by agency personnel.
Hours of duty, maximum flight time, and various
safety precautions were all established by contract.
Notwithstanding all of the above, however, the
Board asserted jurisdiction since it noted the con-
tracts clearly stated the airmen were employees of the
employers and not the agencies; the airmen received
no benefits of governmental employment; the em-
ployees actually hired the airmen; the employers
assigned the airmen to the bases and the assignments
were rarely disapproved; and the employers paid the
airmen and all deductions were made by the
employers. The Board characterized the powers of
the agencies as only "review and approval rights"
over the employers' labor-related decisions, and
concluded that a considerable degree of authority
was left to the employers and therefore jurisdiction
was asserted over them. The Board did note the
"close connection" of the employers' activities with
that of the agencies but this did not alter its decision
to assert jurisdiction. I can fathom no appreciable
difference between the instant case and Sis-Q.
Thus, here, where Respondent can hire its own
employees and fire them,10 has the ability to give
them wages higher than the prescribed minimum,
and, as the majority acknowledges, directly supervis-
es them, I think it has been clearly shown that
Respondent can effectively bargain concerning its
employees' working conditions.u1 Therefore, al-
though Respondent's conditions of employment may
be in some respects subject to review and approval of
the Parks Department, I would assert jurisdiction
here and I dissent from the majority's failure to do
so.
8 171 NLRB 238, enfd. 424 F 2d 770 (C.A.D.C., 1969).
9 See Sis-Q Flying Service, Inc., 197 NLRB 195.
10 Although I note that, by contract , the Parks Department commission-
er has the authority to direct the discharge of any employee he may deem
incompetent , unfaithful , or disobedient , I also note that there has been no
showing that this reserved right has played any significant role in the
composition of Respondent's work force and therefore I weigh this factor
lightly. See Ja-Ce Company, Inc., 205 NLRB No. 92. Nor do I consider of
note the possibility that a city inspector may have directly discharged an
employee since this is a power nowhere given to the inspectors in the
contract
11 Richmond of New Jersey, Inc, 168 NLRB 820, Barry Industries,
incorporated, 181 NLRB 1003 , 1004; Ja-Ce Company, Inc, 205 NLRB No
92.
DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge: This
case was tried at Brooklyn, New York, on January 15,
17-19, and 23-26, 1973. Charges were filed on June 16,
1972,1 and amended July 10, by Teamsters Local 282
separately against Current Construction Corp., and Samuel
M. Wagner, a joint venture herein called the Company2 or
Respondent . The complaint, with a consolidation order,
was issued on November 9 and amended at the trial.
The primary issues are whether the Company (a)
interrogated and threatened employees concerning their
joining Teamsters Local 282; (b) discriminatorily dis-
charged its cleanup employees , among whom Local 282
had most of its support ; (c) unlawfully refused to bargain
with that union; and (d) illegally supported another union,
in violation of Section 8(a)(l), (2), (3 ), and (5) of the
National Labor Relations Act. The Company questions the
Board's assertion of jurisdiction.
Upon the entire record, including my observation of the
demeanor of the witnesses , and after due consideration of
the briefs filed by the General Counsel and the Company, I
make the following:
FINDINGS OF FACT
I. JURISDICTION
The Company (a New York corporation and an
individual) is a joint venture engaged in pruning and
removing trees in New York City, where in the past year it
performed services valued in excess of $50,000 for the
1 All dates are in 1972 unless otherwise stated.
2 The name of the Company was corrected at the trial
CURRENT CONSTRUCTION CORP.
city's Department of Parks, which annually purchases
goods valued in excess of $50,000 directly from outside the
State. Although the city is exempt from the Board's
jurisdiction under Section 2(2) of the Act, its operations are
of a magnitude which would justify the Board in asserting
jurisdiction over it if it were nonexempt. The services
which the Company renders to it constitute sufficient
indirect outflow for the assertion of the Board's jurisdic-
tion. Carroll-Naslund Disposal, 152 NLRB 861, 863 (1965).
The Company contends that the Board should not assert
its jurisdiction, however, because the trimming and
removal of trees "are the same kind of government services
... as the Parks Department itself performs," and
therefore "intimately connected with" the department's
exempt operation. The Company cites no authonty in
support of such a basis for dechning jurisdiction over
countless contractors performing this or similar types of
work for governmental bodies. I find the contention to be
clearly without merit.
The Company also contends that the Board should
decline jurisdiction because the Parks Department retams
by contract "a pervasive degree of control ... both with
respect to the manner of performing the job and with
respect to labor relations." In this connection, the tree
trimming (or pruning) contracts, for a fixed fee, contain
detailed specifications and special provisions, requiring
trees "to be pruned in accordance with accepted horticul-
tural practice . . . in accordance with the specifications for
work and materials and as directed by the Horticultural
Officer . . . by experienced pruners and with the proper
tools in a good workmanlike manner." A park inspector is
required to be "with each of the contractor's crews and a
certified record by house and street number will be made
of each tree pruned"; the contractor is required to remove
all trash and debris; and the work is to be performed in a
5-day, 40-hour week, except for legal holidays. In addition,
the contract contains over 100 pages of language which is
standard in a wide variety of city and/or Parks Depart-
ment contracts, covering such things as minimum prevail-
ing wage rates and benefits, on job training for minority
groups, nondiscriminatory hiring practices, insurance, and
delays, as well as such provisions as those designating the
"resident engineer" as the representative of the engineer or
architect, and requiring the obtaining of manufacturers'
warranties on equipment and materials used in repairing,
rebuilding, and restoration work. (Under the heading,
"Powers of the Resident Engineer, the Engineer or
Architect, and the Commissioner," this general part of the
contract provides that, the resident engineer shall have the
power "to inspect, supervise and control the performance
of the work." Under general "Labor Provisions," the
"Contractor and his Subcontractors" are prohibited from
employing "Anyone who is not competent, faithful and
skilled," and the parks commissioner is authorized to
inform the contractor, in writing, that any employee is, in
his opinion , "incompetent, unfaithful or disobedient,"
whereupon the employee shall be discharged forthwith.)
Under such Parks Department contracts, as well as
under the prevailing practice in the industry as credibly
testified to by landscape contractor Henry Cercone
(assistant secretary of Philip Lagana & Son), the responsi-
721
bihties of the inspectors on these tree jobs is to watch and
inspect the work, and to be concerned with its proper
completion under the contractual specifications. The
inspector makes the final decision on which limbs to cut,
and may stop the job if the cleanup crew is too far behind
the trimmers. The inspectors do not specifically supervise
the employees on the job, but ordinarily approach the
contractor's foreman or supervisor on the job with specific
problems.
The contractor works with its own equipment; it hires,
trains, transfers, promotes, supervises, and discharges the
employees on both the trimming and cleanup crews; it sets
its own wages (not less than the prescribed prevailing
wages) and provides whatever production bonuses it may
find advantageous. Within the limitations of the few
restrictions in the contracts concerning minimum wages,
hours of work, nondiscrimination, etc., the contractor
-"exercises effective control over the working conditions of
its employees and is fully competent to bargain with the
Union in accordance with the provisions of the Act."
Herbert Harvey, Inc. v. N.LR.B., 424 F.2d 770, 778
(C.A.D.C., 1969); cf. Servomation Mathias Pa., Inc., 200
NLRB No. 136 (1972).
I do not overlook the fact that at this particular
Company there was, between it and certain city inspectors,
a less than arm's-length relationship-about which Arnold
Esbin (president of Current Construction Corp.) admittedly
gave false testimony. After testifying that he was new in the
tree-trimming business when the Company started working
on the first contract in November 1971, and after testifying
that "the last thing in the world I was looking for was
trouble with these inspectors," he repeatedly denied having
any of the inspectors employed by the Company while
serving as a city inspector. Finally, upon realizing from the
General Counsel's cross-examining that the General
Counsel had information to the contrary, Esbin admitted,
"Okay, my other answer was an out and out lie. The man
did work for me while he was on my payroll [repairing my
saws], while he was an inspector on the job." (Emphasis
supplied.) Thereafter, other witnesses gave credited, undis-
puted testimony that not only did the Company have this
city inspector on the payroll, sharpening and maintaining
the chain saws in the evenings after work, but that during
the day this inspector would do the paperwork while two
other inspectors were seen soliciting privatejobs (trimming
and removing trees in backyards), and that the Company
would permit them to use company saws and a company
truck for this private work. In turn, inspectors were
observed going beyond their customary role of inspecting
the work and reporting deficiencies to the Company's
supervision : some of them were giving instructions directly
to the employees and supervising the work. I find that this
is a situation which should be called to the attention of the
proper authorities in the city's Parks Department, instead
of being grounds for treating this contractor differently
from other city contractors and declining jurisdiction over
the Company's alleged unfair labor practices.
Accordingly, I find that the Company is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act, and that it will effectuate the
policies of the Act to assert jurisdiction in this proceeding.
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I also find that Teamsters Local 282 and also Building,
Concrete , Excavating & Laborers ' Union , Local 731 of
Greater New York, Long Island & Vicinity , International
Hod Carriers ', Building and Common Laborers ' Umon of
America , AFL-CIO, herein called Laborers Local 731, are
labor organizations within the meaning of Section 2(5) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
This is an unusual case.
Admittedly without benefit of counsel , and thinking "we
were smarter than we actually were ," the Company
engaged in a complicated set of maneuvers , with three
separate unions, originally to delay (or avoid) unionization
while it was failing to pay the prevailing wage rates and
benefits as required by its Parks Department contracts, and
subsequently to avoid "doubling up" (having a separate
driver and bucket operator) on its tree-trimming bucket
trucks.
The Company admittedly "stalled" for months in
bargaining with one union (Laborers Local 731 ), while
operating nonumon , yet making fringe benefit payments to
another union (Sanitation Local 813, a Teamster local) for
two employees who drove trucks to the dump . Later,
during a strike by a third union (Teamsters Local 282, the
charging party), the Company determined Local 282's
limited support among the tree-trimming employees, and
filed a petition (later withdrawn) for an election in that
group . Then it required all the remaining cleanup employ-
ees to sign application and checkoff cards for Sanitation
Local 813 . The next week , following repeated damage to its
equipment , the Company signed a recognition agreement,
recognizing Teamsters Local 282 and Sanitation Local 813
as joint bargaining representative of all its trimming and
cleanup employees . The strike ended, but there was no
joint bargaining for a collective-bargaining agreement.
Meanwhile , despite its efforts to conceal its underpay-
ment of employees-by paying employees in cash and
requiring them to sign (endorse) blank paychecks, and by
requiring employees to sign affidavits that they were
receiving the prevailing wages and benefits-the Company
was advised by the city comptroller to pay the prevailing
rates to cleanup as well as trimming employees, and later
was required to give them backpay.
After the signing of the recognition agreement, Team-
sters Local 282 got into a dispute with Laborers Local 731
over their respective jurisdictions . While this dispute was
being discussed between the unions, the Company bar-
gained separately with Teamsters Local 282 for an
agreement covering only drivers (excluding "sanitation"
truckdrivers , members of Sanitation Local 813). Also, after
the recognition agreement was signed , the Company met
with Laborers Local 731 , which was urging the Company
to go ahead and sign its agreement covering all the
employees.
The Company and Teamsters Local 282 reached an
impasse in their negotiations over the issue of "doubling
up" of drivers and operators on the bucket trucks. Local
282 then requested the Company to bargain for "all
employees covered by the recognition agreement. " Howev-
er, by this time , the Company had discharged all except
two of its experienced cleanup employees (among whom
Teamsters Local 282 had most of its employee support),
and replaced them with mostly inexperienced members of
Laborers Local 731. The Company also offered special
benefits to the three former organizers for Teamsters Local
282 if they would join Laborers Local 731, and agreed to
pay their Local 731 initiation fees-explaining that the
Company preferred Local 731 , which did not require
"doubling up" on the bucket trucks. In addition, the
Company instructed the remaining employees to leave
work and go with a company official to the Local 731
union hall , where the Company advanced the money for
their initiation fees to join Local 731.
The Company refused to bargain further with Teamsters
Local 282.
The General Counsel contends that a number of the
above and other acts were unlawful. The Company states
in its brief, "We would be less than candid were we to
contend that the Employer was not guilty of any
violations" of the Act , after arguing that the "Employer
was unaware both of its obligations under the NLRA and
of the restrictions which the Act imposed on it." However,
the Company contends that it did not discriminatorily
discharge the cleanup employees, coercively interrogate its
employees , nor violate Section 8(a)(5) of the Act.
I note that resolution of the alleged discriminatory
discharge issue is complicated by the Company' s actions in
keeping inaccurate payroll records , or "two sets of books,"
omitting employees from the payroll records apparently for
purposes of deception.
B. Background
On November 1, 1971, the Company (the joint venture of
Samuel Wagner and Current Construction) began work on
its first tree -trimming contracts with the Parks Depart-
ment. Although the government contract required the
payment of not less than the prevailing rate of $6.95 an
hour in wages and $1.87 in fringe benefits (totaling $8.82
an hour) to "common laborers," the Company was paying
the hourly wage rates-without the fringe benefits-of $7
to the trimming (pruning) employees and to the two
cleanup leadmen, and $4 .375 and $4.20 (less than half the
total prevailing rate ) to cleanup employees . (I discredit
President Esbin's testimony that "we thought we had" paid
the prevailing wage.)
The Company admittedly "stalled" for months in its
negotiations with Laborers Local 731 . That union sought
the Company to sign the multiemployer agreement
covering this tree work and to pay , to both the trimming
and cleanup employees , the Local 731 negotiated wage
scale ($6.95 and $1 .87), which the city had adopted as the
prevailing rate for the work and which competing
government contractors were paying. (Local 731 had not at
that time organized the Company's employees , and had
only one member working there . The complaint does not
allege this bargaining to be unlawful ; no charges were filed
against Local 731.)
The hourly rates of $4 .375 and $4 .20, which the
Company was paying cleanup employees, were the rates
CURRENT CONSTRUCTION CORP.
which Wagner had previously paid to employees clearing
alleys and vacant lots under the city's rat control program.
These wages, plus fringe benefits, were the union scale for
"chauffeurs" and helpers on "Rubbish and Garbage Route
Trucks" in an agreement which Wagner Carting (owned by
Wagner) had signed on July 1, 1971, with Private
Sanitation Union Local 813 (a Teamsters local). Wagner
had completed that earlier city contract the last week in
October 1971.
The Company employed former Wagner Carting em-
ployees, including "sanitation" truckdrivers Edward Carter
and Marion Smith, to work on the cleanup crews. Carter
and Smith were members of Sanitation Local 813.
Although Manager Frank Stumer (secretary-treasurer of
Current Construction) gave much fabricated testimony
concerning the later discharge of cleanup employees (as
discussed later), he did admit that between November and
February the Company was operating a nonunion shop.
He also admitted that the Company did not recognize the
Wagner Carting agreement with Sanitation Local 813 as
being binding on the Company until after Teamsters Local
282 went on strike in February. (I discredit the testimony
of Office Manager Warren Wagner, on cross-examination,
that "I can't say I didn't consider [certain former Wagner
Carting employees then working as cleanup employees for
the Company ] to be under [the] 813 contract. Let's say that
I was negligent in requiring them to join the union even
though I knew about the 30 day [union-shop ] provision.")
Meanwhile, however, a Local 813 representative observed
cleanup man Carter and/or Smith at the dump, driving a
sanitation truck there. Evidently believing that these two
employees were still driving sanitation trucks for Wagner
Carting, Sanitation Local 813 sent Wagner Carting a
statement for the fringe benefits (to the insurance, pension,
and severance funds under its July 1971 agreement with
Wagner Carting) for Carter, Smith, and a supervisor.
Wagner paid for these benefits for the 3-month period,
December-February. The remaining cleanup employees
continued to receive none of these fringe benefits. (Office
Manager Wagner admitted that "maybe" the Company
was "looking to save some money.")
Finally, in February, Cleanup Leadman Arthur Lacker
sought representation from Teamsters Local 282, telling
General Organizer Anthony Bai that they had no union,
employees were being underpaid, and "when we get paid,
we sign [endorse] blank checks and he pays us in cash."
(Previously, Bai had met with representatives of Laborers
Local 731 and the Company, and had asked the Company
who was driving the Company's trucks. Bai left the
meeting after Samuel Wagner said he already had a
contract with Sanitation Local 813 and said that he refused
to meet with Local 731 in Bai's presence.) Having been
advised by Sanitation Local 813 that it did not have a
collective-bargaining agreement with the Company, Bai
began organizing the trimming and cleanup employees,
with the assistance of Cleanup Leadmen Lacker and
Robert Smiarowski, and later, trimmer Merle Warner. Bai
also intervened in the Laborers Local 731's complaint at
the city comptroller's office that the employees were not
being paid the prevailing wages and benefits.
723
C. Initial Discharges and Threats
About the second or third week of February, Teamsters
Local 282 Organizer Bai gave Cleanup Leadmen Lacker
and Smiarowski authorisation cards to get the employees
to sign. Lacker and Smiarowski spoke to a number of the
employees, and obtained several signatures. Although
Manager Stumer denied knowledge that the two leadmen
had been signing up employees, he did testify that "All that
day," Friday, February 18, "anytime I passed Artie's
[Lacker's ] crew ... the men were standing around talking
about something," and that he had mentioned to Lacker,
"How about getting back to work?" Later that day, when
Stumer "asked him to sign this paper" concerning receiving
the prevailing wage, "I don't know what was on his mind,
he refused. I said, `All right, if you are not going to sign,
you might as well leave the job, you are fired.' "
Thereafter, according to Stumer, Smiarowski quit upon
learning about Lacker's discharge. (Both leadmen were
paid for the full day's work.) Stumer testified he discharged
Lacker because "I was quite annoyed" at him for not
signing the affidavit, but that Lacker and Smiarowski were
good employees and he did not consider that to be the end
of their relationship. He added, "I thought that we would
probably talk it over the next week," and admitted that he
needed them and wanted them back on the payroll. (At the
trial, the Company's trial counsel admitted that the two
leadmen were still employees , stating that "we are not
contending that they were not employees during this
period.")
Nevertheless on the following Tuesday morning, Febru-
ary 22 (Monday being a holiday), Teamsters Local 282
Organizer Bai requested recognition, speaking first to
Manager Stumer and President Esbin, and then to Samuel
Wagner a few minutes later, and Wagner specifically
referred to Lacker and Smiarowski when stating that
employees signing cards for Local 282 were fired. (This was
at the garage where the trucks and equipment were kept
and where the employees reported for work.) As recalled
by Bar, Wagner stated, "F-you, you don't represent
anybody . . . anybody signed a card for 282 is fired.
Anybody signing a card for 282 from now on is fired" and,
pointing to Lacker and Smiarowski, stated they did not
work there any more. Lacker credibly testified that when
Wagner made the discharge threat he pointed to Lacker
and Smiarowski, stating "those fellows don't work for me
any more." Trimmer Warner (who testified first for the
General Counsel and later for the Company) testified that
Wagner stated, "I know if anybody signed pledge cards for
282, he is not going to be working for me any more, and
especially those two," pointing to the two leadmen, "These
two guys aren't working for me." (Samuel Wagner did not
testify, and the Company conceded in its brief that his
statement, "Anybody signing a card for 282 is fired," was
undenied by the Company at the trial. Both Manager
Stumer and President Esbin admitted that Wagner
mentioned Lacker and Smiarowski in connection with the
Local 282 cards. Stumer testified that Wagner stated, "F-
those cards," and referring to the two leadmen, "Those two
are not working for me any more." According to Esbin,
Wagner stated, "I don't care what kind of cards you have
from Artie and Bobby, they don't work for me." I note that
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bai had not named any of the card signers.) The
Company's payroll records state that these two employees
"quit."
Admittedly, Cleanup Leadmen Lacker and Smiarowski
were valued employees, and Manager Stumer (who had
told Lacker he was fired the Friday before) did not
consider their employment ended. However, when Team-
sters Local 282 demanded recognition the following
workday, Samuel Wagner not only effectually discharged
the two employees, but revealed his knowledge of their
support of this truckdrivers local. I therefore find that the
Company then discharged the two leadmen, in reprisal for
their supporting the local which the Company feared
would demand separate truckdrivers, thereby violating
Section 8(a)(3) and (1) of the Act. (Lacker and Smiarowski
were permitted to return to work with the other employees
upon settlement of the ensuing strike.)
I also find that the undisputed and unretracted threat by
Samuel Wagner on the morning of February 22, in the
presence of a number of employees, to discharge anybody
signing authorization cards for Teamsters Local 282, was
clearly coercive and violated Section 8(a)(1) of the Act.
D. Interrogation and Further Warning
As Samuel Wagner was leaving the garage, after
threatening employees with discharge for signing Team-
sters Local 282 cards on Tuesday morning, February 22,
Manager Stumer approached messenger James Sweeney.
As Sweeney credibly testified, Stumer "asked me if I joined
the Union," and Sweeney answered, "Not yet." Then
Stumer warned, "If you join the Union, you won't be
working for me." (Stumer did not deny this conversation.)
I find that this interrogation and the warning were clearly
coercive, in violation of Section 8(a)(1) of the Act.
On another occasion, after cleanup man Richmand
Pierre saw Teamsters Local 282 Organizer Bai and
Leadman Lacker talking with President Esbin at the
garage, Manager Stumer approached Pierre and asked him
if Bai had spoken to him. Pierre denied it and Stumer
instructed, "Don't have nothing to do with this gentleman
and his union because that union is no good." I find that
this interrogation, in the context of the instruction and the
threats being made to the employees concerning Local 282,
was coercive and violated Section 8(a)(1) of the Act.
On Thursday evening, February 24, Manager Stumer
held a special meeting at a diner with trimming employees
and asked them (in his words), "What do you people want
to do? Do you want to sign with 282, do you want to stay
nonunion, do you want to sign with 731?" Stumer testified
that he got "all different answers." Although the General
Counsel failed to establish that the trimmers were coerced
in this meeting, I find that the interrogation afforded the
Company an opportunity to determine the union prefer-
ence of this group of employees and Local 282's limited
support among them. (Only 5 of the 14 trimmers had at
that time signed Local 282 cards.) The following morning,
the Company filed a petition (later withdrawn) for an
election for this group of employees, indicating that Locals
282 and 731 were claiming recognition.
Also that Friday morning, February 25, the Company
filed a charge (later withdrawn), alleging that Sanitation
Local 813 was refusing to bargain with the Company by
not honoring the Wagner Carting-Local 813 agreement
(which, until that date, the Company had not recognized as
being binding upon itself). That afternoon, while the strike
was still in progress, the Company called the cleanup
employees individually into the office and required them to
sign application and checkoff cards for Local 813. (The
General Counsel did not include in the complaint, nor
offer as an amendment at the trial, any allegation that this
conduct violated Section 8(a)(2) of the Act. No charge was
filed against Local 813.) Between this date and March 31,
when the Company summarily discharged these cleanup
employees, it did not check off their dues, and did not pay
the fringe benefits for these employees under the Wagner
Carting agreement.
Meanwhile, representatives of the Company were asking
cleanup employees if they had signed Teamsters Local 282
cards. When Raymond Hall was called in the office to sign
the Sanitation Local 813 application and checkoff cards,
Office Manager Warren Wagner (in the presence of
Manager Stumer and President Esbin) asked Hall "did I
sign a card in the past for 282." Hall said yes, and Wagner
said, "Well, that doesn't mean anything . . . that is bull s-
... once we get this matter of cards signed for 813, we get
back to work." (Wagner did not deny this. Stumer testified
that when the employees were called in individually, he
told them that "if they signed with Local 813 they would be
able to go back to work.") On another occasion, sometime
after Herbert Sanders signed a Local 282 card (on
February 17), Sturner asked him at the garage "if I signed
the card," and Sanders admitted that he had. Between the
conclusion of the strike (on February 28) and the date the
cleanup employees were discharged (March 31), Cleanup
Leadman Lacker observed Stumer approach cleanup man
Edward August at work and ask him if he had signed a
Local 282 card. August answered yes. (Although August
admitted that this was a friendly, casual question, August
testified that "it just seemed odd that he asked me about
the Union.") Lacker also recalled Stumer asking Floyd
Jones, another cleanup employee, if he had signed a Local
282 card, but Lacker did not recall Jones' response. (Jones
did not testify.) In addition, Manager Stumer interrogated
messenger Sweeney a second time. As testified by Sweeney
(who impressed me as an honest, trustworthy employee),
Stumer in early March called Sweeney over to his car and
asked him again "if I joined the Union," Local 282. When
Sweeney answered, "I don't know yet," Stumer said, "Well,
we have a list of all the people that joined the Union."
(Emphasis supplied.) Stumer added that Sweeney would
have to join Laborers Local 731, and said that he would
bring a Local 731 card for Sweeney to sign, but he failed to
do so. (As discussed later, Sweeney thereafter was replaced
as messenger and assigned to work full time as a cleanup
employee. Then on March 31, without being required, or
offered the opportunity, to sign cards for Local 731,
Sweeney and other cleanup employees were summarily
discharged and later replaced with Local 731 members.)
Stumer admitted interrogating employees about signing
Teamsters Local 282 cards but claimed, "I don't believe I
did" after the strike. I discredit this denial, and find that
the foregoing individual interrogation of Hall, Sanders,
CURRENT CONSTRUCTION CORP. 725
August, Jones, and Sweeney-in the context of the threats
of discharge for supporting Teamsters Local 282 and the
later summary discharge of this group of employees among
whom Local 282 had a majority of its support-was
coercive and violated Section 8(a)(1) of the Act.
E. Alleged Refusal To Bargain With Local 282 and
Illegal Support of Local 731
1. Majority status
When Teamsters Local 282 Organizer Bai requested
recognition and went on strike, on Tuesday morning,
February 22, he had valid authorization cards from a
majority of the cleanup employees and the messenger, but
not from a majority of the trimmers. In the first group, he
had cards from 9 of the 15 (having cards from August,
Frazier, Hall, Jones, Lacker, Peterson, Pierre, H. Sanders,
and Smiarowski, but not from Blacknall, Carr, Carter, M.
Smith, Sweeney, and Wiley), but only 2 cards from the 14
trimmers (having cards from Traynor and Warner, but
none from Bush, Cain, Carney, DeSanto, DeTillio, Fusco,
Graue, McHugh, Nedwick, Siderious, Thompson, and
Verkilos).
By Wednesday, February 23, he had valid cards from 15
of the 29 employees (having received additional cards from
messenger Sweeney and trimmers Cain, Fusco, and
McHugh). On Monday, February 28, when the recognition
agreement was signed and the strike ended, Bai had two
additional cards (from cleanup man Wiley and trimmer
Graue), giving Teamsters Local 282 a majority of 17 of the
29 employees.
In making these findings, I exclude the card signed on
February 19 by cleanup man Helback who, like Peterson,
was not shown on the payroll. Whereas the parties
stipulated that Peterson was an employee at that time,
there is no stipulation, nor proof, that Helback was still an
employee when he signed the card. I also exclude the card
signed by Stiers, because his job was counting trees (not
working either as a trimming or cleanup employee), and he
was on the payroll of Wagner Moving & Storage, working
only temporarily for the Company while recovering from a
heart attack. I include the cards signed by trimmer
McHugh on February 23 and Graue on February 28,
discrediting as fabrications the vigorously denied testimo-
ny by Thompson and Graue that Bai made threats to
obtain the cards. (Neither Thompson nor Graue impressed
me as being a trustworthy witness.) I also find that trimmer
Nedwick (who did not sign a card) was still an employee at
the time of the strike. Although he last worked on
February 16, he was paid for the February 21 holiday,
indicating his continued employment immediately before
the strike. He quit after the strike.
2. Recognition requests and letter of recognition
When Teamsters Local 282 Organizer Bai requested, and
was refused, recognition for all the employees (including
both trimming and cleanup employees) on Tuesday,
February 22, Local 282 had valid authorization cards from
only 11 of the 29 employees. By Wednesday, the next day,
when Bai again requested (and was refused) recognition, he
had a majority of 15 of the 29 employees; however he was
no longer requesting recognition, for Local 282, of such an
appropriate unit. He had relinquished, to Sanitation Local
813, jurisdiction over two sanitation (garbage) truckdrivers
(Carter and Smith), who were members of Local 813.
These were not the only two cleanup men driving
sanitation trucks , and both Carter and Smith spent much
of their time working with the other cleanup employees in
nondriving duties.
The strike was settled on Monday, February 28, when
the Company went to a card check at the Sanitation Local
813 office . By this time , Local 813 was claiming jurisdic-
tion not only over its two members , Carter and Smith, but
also over all "Sanitation Chauffeurs & Helpers removing
all the refuse"-covering an undetermined number of
cleanup employees. Teamsters Local 282 agreed, and the
Company signed a letter of recognition, recognizing Locals
282 and 813 jointly as representative of all the employees,
but specifying their respective jurisdiction, granting Local
813 the above-quoted jurisdiction, and Local 282 jurisdic-
tion over "Drivers-Helpers, Laborers, Sky Climbers,
Trimmers and all others engaged in Park Department
Contracts." (The words "Drivers-Helpers, Laborers" also
covered an undetermined number of cleanup employees.)
Although the Company had filed a petition for an
election on February 25 for a unit of trimming employees,
and had required the cleanup employees to sign applica-
tions for Sanitation Local 813 later that day, the Company
signed this letter of recognition on February 28 in order to
end the strike and because it apparently believed that the
repeated damage to its equipment (broken radiators and
windows, and flat tires) during the strike would continue
unless the strike was settled. The Company did not have
proof that Teamsters Local 282 was responsible for the
damage . Manager Stumer did testify that Organizer Bai
made some ambiguous statements , implying that Bai had
knowledge of the damage before Stumer did (this testimo-
ny was undenied, the General Counsel ignoring the
matter). However, even if Bai actually made the purported
statements as claimed by Stumer (much of whose testimo-
ny I find was fabricated), the statements do not establish
that either Bai or Local 282 was responsible for the
damage.
3. Company's bargaining and other activity
a. Pattern of bargaining
The February 28 recognition agreement (naming Team-
sters Local 282 and Sanitation Local 813 as the joint
bargaining representative of all the employees ) settled the
strike, but did not produce joint bargaining. Local 813 did
not join with Local 282 in any bargaining with the
Company for a collective-bargaining agreement, and Local
282 (following instructions from its International) began
bargaining with the Company for an agreement covering
only the drivers (excluding sanitation truckdrivers). The
Company and Local 282 deferred bargaining for other
employees , pending Local 282's discussions on jurisdiction
with Laborers Local 731. Local 282 (which represented
truckdrivers in the area) was offering to agree in writing
with Local 731 that Local 731 (which represented employ-
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees performing such tree work in the area) would have
jurisdiction over all nondrivmg trimmers and cleanup
employees, including the "operators of the buckets" on the
bucket trucks, provided Local 282 would have jurisdiction
over the drivers (including the bucket-truck drivers).
Thus, notwithstanding the joint recognition agreement,
the Company was bargaining with Teamsters Local 282 for
an agreement covering only the three Local 282 employee
organizers , Cleanup Leadmen Lacker and Smiarowski and
trimmer Warner, covering them as truckdnvers ( as well as
the suburban operator, or messenger, formerly called the
coffee boy). Local 282 was proposing to cede to Laborers
Local 731 jurisdiction not only over the remaining
trimmers (among whom Local 282 had little employee
support) but also over cleanup employees (among whom it
had received most of its support).
In the meantime, as admitted by President Esbin, the
Company met-after the recognition agreement was
signed-with Laborers Local 731, which urged the Compa-
ny to sign Local 731's multiemployer agreement (under
which the drivers of the bucket trucks would be permitted
to operate the buckets, avoiding "doubling up").
b. Undercutting Local 282s support
While Teamsters Local 282 was bargaining for three or
four drivers, and deferring bargaining for the remaining
employees pending the mterunion jurisdiction discussions,
the Company was taking actions which decimated Local
282's support among the employees.
In early March, as found above, Manager Stumer told
messenger Sweeney that he would have to join Laborers
Local 731, and told him that Stumer would bring a Local
731 card for him to sign. (Stumer failed to do so after
Sweeney was reassigned. Earlier, on February 22, when
Organizer Bai requested Samuel Wagner for recognition,
as credibly testified by Cleanup Leadman Lacker, "Wag-
ner said he had the pledge cards from 731 on him," and Bai
commented that "it was illegal for him to have the pledge
cards." As recalled by Bai, Wagner asked Bai how he could
have a majority "when I have the majority for Local 731 in
my pocket?" The evidence does not reveal how many, if
any, of these Local 731 cards were obtained in the manner
Stumer sought Sweeney' s signature .) Thereafter, Sweeney
became a full-time cleanup employee and was summarily
discharged on March 31, along with other cleanup
employees. A week later, the Company began replacing the
largely pro-Local 282 cleanup employees with members of
Local 731. (The legality of this mass discharge of
employees is discussed later.)
Following the discharge of the cleanup employees,
Laborers Local 731 declined Teamsters Local 282's
proposal that the work be divided, with Local 282 retaining
jurisdiction over certain drivers (including trimmer War-
ner, who drove a bucket truck). Thereafter, in May, the
Company and Local 282 reached an impasse over the
"doubling up" issue . Local 282 would not give the
Company a satisfactory guarantee concerning the bucket-
truck driver continuing to operate the bucket. On May 24,
Local 282 requested bargaining for "all employees covered
by the recognition agreement ." About this same time, as
former Local 282 employee organizers Lacker and Warner
credibly testified, three company officials (Stumer, Esbin,
and Samuel Wagner) met at a restaurant with Lacker,
Warner, and the other former employee organizer, Smia-
rowski. While talking about a new tree removal contract,
"Stumer said that there was no room for Local 282"; that
"he couldn't afford the rate of Local 282" (Local 282's
welfare and pension fund payments were higher than Local
731's); "that he never had any ideas of signing a contract
with Local 282" and "couldn't stall Bai any longer"; that
he did not want two unions because he "would have to
have a driver in one union and ... a pruner in another
union," whereas his competition employed Local 731
members who did both driving and pruning; that he would
make it worthwhile to these three employees in money, and
make them key men on the new tree removal contract, if
they would drop their Local 282 union books and sign up
with Local 731; and that he would pay their Local 731
initiation fees. They agreed to join Local 731. (Stumer
admitted telling the three employees in the meeting that he
preferred that they go over to Local 731, and that he
agreed to pay their initiation fees .) I note that the
Company's payroll records reveal another inducement for
these three former Teamsters Local 282 organizers to join
Laborers Local 731. For the two payroll periods, from May
II through May 24, the Company discontinued making the
$1.87 an hour welfare and pension benefit fund payments
for Lacker, Smiarowski, and Warner, but on May 31
(presumably after they agreed to join Local 731) the
Company began making the payments for them again, and
made back payments for the 2 weeks previously withheld.
Even apart from this temporary withholding of the welfare
and pension payments, I find, as alleged in the complaint,
that the Company in this meeting unlawfully offered and
promised employees wage increases and other benefits to
induce them to abandon their membership in and support
of Teamsters Local 282 and to induce them to join
Laborers Local 731, in violation of Section 8(a)(1) of the
Act. I also find, as further alleged, that the Company
promised employees that it would pay their initiation fees
if they would join Local 731 and cease their membership in
Local 282. thereby interfering with their Section 7 rights in
violation of Section 8(a)(1), and rendering unlawful
assistance and support to Local 731, in violation of Section
8(a)(2) of the Act. (Although Local 731 met with the
Company and assisted in preparing the company defenses
before the trial, and although representatives of Local 731
were present during part of the trial, no charges were filed
against Local 731 and it was not served with copies of the
formal papers before the trial began.)
By June, the Company had either discharged, or offered
the above-described inducements to, all the remaining
supporters of Teamsters Local 282, with the exception of
some of the trimmers. About June 23, as Leadman Lacker
credibly testified, Stumer instructed the nonmembers of
Laborers Local 731 to report back at the garage at noon, to
go to the Local 731 union hall to sign up. Stumer went with
the employees, including Lacker and Warner (Smiarowski
did not go), paid the initiation fees for Lacker and Warner.
and advanced the money for the others. According to
Stumer , "at one time the men were all in agreement that
they would prefer signing up with 731, and it was also my
CURRENT CONSTRUCTION CORP. 727
preference at that time . . . but they seemed to be always
broke . . . each man at different times would say . . . 'I
... don't have the money this week .' " One day
(according to him), because of the threat of rain in the
afternoon, he suggested that they go that day to the union
hall. When the money situation came up (that "I don't
have the $160 to go down there"), he agreed to advance the
money . "So we went down there ," and a number of
employees signed a slip authorizing him to deduct $40 a
week from their pay-except for Lacker and Warner,
"whom I had previously made arrangements to pay for." (I
credit Lacker 's testimony that the employees were instruct-
ed to go .) Accordingly , I find, as alleged in the complaint,
that the Company directed employees to leave work, to go
to the offices of Local 731, and to sign cards designating
Local 731 as their representative , in violation of Section
8(a)(1) and (2) of the Act . I also find that Manager Stumer,
in effect , admitted soliciting the employees to loin Local
731, and that this further violated Section 8(a)(1) and (2) of
the Act. (The complaint did not allege that the Company's
payment of initiation fees for Lacker and Smiarowski, or
the Company 's directing or permitting checkoffs to be
signed by other employees in the absence of a contract
with Local 731, also violated Section 8(a)(1) and (2).
Although the evidence shows that Local 731 did appoint a
steward on the job , that the Company did seek referrals
from the Local 731 hall and discussed one grievance with
Local 731 , and that the Company remitted welfare and
pension fund payments to Local 731 for the cleanup
leadmen and tnmmers-excluding trimmer Ben Lukowski
through error-the General Counsel failed to prove the
allegation in the complaint that the Company agreed in
June to recognize Laborers Local 731 as the representative
of all the employees , exclusive of sanitation chauffeurs and
helpers. The complaint did not allege that the making of
welfare and pension contributions to Local 731 without a
contract violated the Act.)
The Company refused to negotiate further with Team-
sters Local 282, stating that an impasse had been reached.
rest of the ground crew, the climbers and everybody, we
weren't discussing here ." Thus, Local 282 was negotiating
for trimmer Warner (the driver of one of three bucket
trucks), for Cleanup Leadmen Lacker and Smiarowski
(whose driving duties were limited), and for none of the
other truckdrivers (of dump and sanitation trucks ), but for
only one other driver, the messenger . Warner had no
community of interest separate from other trimmers, and
Lacker and Smiarowski had no community of interest
separate from other cleanup employees . It was a mere
fragmentation of an appropriate unit , based on union
membership (except for the messenger). Therefore , in April
and May when the Company was bargaining with Local
282, the proposed bargaining unit was inappropriate and
the Company had no obligation to bargain with Local 282
for those employees.
In May , when the Company and Local 282 reached an
impasse over the "doubling up" issue , the Union sought to
represent another inappropriate unit : the trimming and
cleanup employees, excluding the sanitation chauffeurs
and helpers . The Company had never agreed to recognize
Local 282 separately for this fragment of the overall unit.
Not only was this requested unit ambiguous-including
the classifications , "Drivers-Helpers , Laborers ," which
could overlap the excluded classifications, "Sanitation
Chauffeurs & Helpers"-but the unit would be a fluctuat-
ing one at best, including cleanup employees when they
were driving or loading dump trucks but excluding them,
perhaps several times daily , when they were driving or
loading sanitation or garbage trucks.
I therefore find that whether or not the Company was
engaged in a deliberate attempt to undermine Teamsters
Local 282 's strength and was bargaining in bad faith with
the intention of reaching an impasse, the Company, in the
absence of any duty to bargain, did not violate Section
8(a)(5) of the Act . However, I do take into consideration
the foregoing evidence in determining the Company's
motivation for the mass discharge of the cleanup employ-
ees.
4. Concluding findings F. Discriminatory Discharges
The complaint alleges that the Company violated Section
8(a)(5) of the Act by engaging in bad-faith bargaining in
April and May, and by refusing in May and June to meet
and continue bargaining-as well as by other conduct
alleged to violate Section 8(a)(l), (2), and (3).
However, I find that there was no 8(a)(5) violation
because the Company had no duty to bargain with
Teamsters Local 282, either in April or May, or thereafter.
After the Company signed the February 28 recognition
agreement, recognizing Teamsters Local 282 and Sanita-
tion Local 813 as joint bargaining representative of all the
trimming and cleanup employees, Local 282 abandoned
the joint representation and bargained with the Company
for an inappropriate unit (pending discussions with
Laborers Local 731 concerning their respective jurisdic-
tions). Teamsters Local 282 Organizer Bai admitted that
"we were negotiating . . . not specifically [for] drivers as
such but those people who would be 282 members,
regardless of the duties they performed because of
Warner's dual capacity as a driver and a bucket man. The
1. Preface
As seen above, the Company eliminated virtually all of
Teamsters Local 282 's employee support . First, on March
31, the Company discharged all (except leadmen) of the
cleanup employees (among whom Local 282 had a
majority of its employee support) and hired members of
Laborers Local 731 in their place . Thereafter , as found, the
Company unlawfully induced other employees to join
Local 731. We now consider whether the sudden mass
discharge on March 31, without any prior notice to any of
the employees, was discriminatorily motivated.
The Company asserts an economic defense (in addition
to denying knowledge that a majority of the employees
supported Teamsters Local 282). Although conceding that
treating the cleanup employees "as a group may not have
been good labor relations" and "may not even have been
`fair,' " the Company contends, that it believed that "as a
group, they were not competent and efficient" enough to
justify the higher wage scale . (The city comptroller's office
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
advised early in March that the Company-like its
competitors-would have to pay the contractual "common
laborers" prevailing rate to cleanup employees as well as to
trimmers.)
If the Company's arguments in its brief are to be
believed, the Company "laid off" its ground crew (cleanup
employees), and that by hiring "a new crew of experienced
groundcrew," it "was able to literally double the productivi-
ty" of the crew, and that "After the lay-off, while working
on the same contract, Respondent had actually cut the
groundcrew in half." The evidence, when analyzed, paints
a far different picture.
As discussed below, the evidence shows that the
Company falsified payroll records to conceal the actual
number of cleanup employees working after March 31.
Production on the tree-trimming jobs was so curtailed that
the startup of the tree removal job was delayed. Production
was drastically cut the week after the mass discharge by
rotating the trimmers on cleanup work, depriving the
trimmers of most or all of their production bonus. About a
week after the experienced cleanup employees were
discharged, the Company began hiring a smaller number
of mostly inexperienced cleanup employees (Two of the
new employees proved unsatisfactory, and either quit or
were terminated.) Thereafter, the Company further cur-
tailed the production of the trimmers by requiring, for the
first time, that they cut and stack their own tnmmmngs
before proceeding to the next tree, and by requiring them
to stop cutting early and help with the cleanup when the
cleanup employees lagged behind. Despite these and other
changes made to enable the smaller cleanup crews to keep
up with the trimmers (within a half block to a block), the
efforts failed. The cleanup employees often fell hours
behind the trimmers, working 10 to 14 hours a day,
resulting in excessive overtime and higher costs to the
Company.
2. Company knowledge
The Company interrogated many of the employees
before and some after the February 28 recognition
agreement was signed. As found above, the Company
interrogated trimmers in a group on February 24 (during
the strike), before filing a petition for an election for that
group. All six of the General Counsel's witnesses who had
been discharged on March 31 (Edward August, Grady
Frazier, Raymond "John" Hall, Richmand Pierre, Herbert
Sanders, and James Sweeney) credibly testified about
conversations with the Company concerning Teamsters
Local 282. Three of them (August, Hall, and Sanders),
when interrogated about signing a Local 282 card,
admitted it. Two of them (Pierre and Sweeney), when so
interrogated, did not. The sixth of these witnesses, Frazier,
advised the Company that he had signed a Local 282 card
when the Company required him on February 25 (as it did
other cleanup employees) to sign application and checkoff
cards for Sanitation Local 813. Thus there is direct
evidence that four cleanup employees (August, Frazier,
Hall, and Sanders) informed the Company that they had
signed Local 282 cards, and the Company admits knowl-
edge that cleanup man Floyd Jones was also supporting
Local 282-making a total of five-plus the two Local 282
organizers, Lacker and Smiarowski, the two cleanup
leadmen whom the Company, of course, could not
discharge for purported incompetence. (In its brief, the
Company admits knowledge of the Local 282 support of
only three cleanup employees, August, Jones, and Sanders
-apparently overlooking Manager Stumer's admitted
knowledge, denied by President Esbin, that Hall had
signed a Local 282 card-in addition to leadmen Lacker
and Smiarowski.)
Furthermore, as found above, the Company revealed to
messenger Sweeney, in early March before he became a
full-time cleanup employee, that "we have a list of all the
people that joined the Union," Teamsters Local 282. The
Company does not admit compiling such a list , and the
evidence does not disclose how accurate the list was.
However, by admittedly interrogating the trimmers in a
group on February 24, the Company had evidently
determined the limited support which Local 282 had in
that group of employees. Then, when the Company went to
a card check at the Sanitation Local 813 office on
February 28, and the Local 813 representative announced
that Local 282 represented a majority, it was obvious from
Local 282's limited support among the trimmers that most
of its support was among the cleanup employees. More-
over, although Local 282 Organizer Bai had refused to show
the authorization cards to the Company before the Local
813 representative examined the cards and announced
Local 282's majority, it is undenied that Samuel Wagner
(who did not testify) thereafter "flipped through" the cards
and confirmed Locals 282's majority. It is probable that
Wagner at least noticed that most of the card signers were
cleanup men, even if he could not remember the names of
all who signed.
Even apart from the interrogation, the admission to the
messenger, and the credited testimony that Samuel Wagner
"flipped through" Teamsters Local 282's authorization
cards at the card check, I find that some of the statements
made by company officials at the time of and following the
mass discharge indicate that the Company was aware that
it was discharging Local 282 supporters.
As credibly testified by cleanup man August, Manager
Stumer told August on the date of the "layoff" that he was
a good worker, and that August should call Stumer back in
about a week and "he would probably reinstate me."
However, when August telephoned Stumer, "he said he
had union problems and he couldn't hire me." (Emphasis
supplied.) A few days later, August saw an ad (which ran
in the "Long Island Press" from April 8-14) for tree work,
answered it by telephone, and was told to "Forget about
it" when his voice was recognized. (Stumer admitted
getting the call.) About 2 weeks later, August went in
person to the office, talked to Stumer, and again Stumer
"said he had union problems and he couldn't rehire me."
(Emphasis supplied.)
When cleanup man Hall was "laid off," as he credibly
testified, Manager Stumer told Hall that "at the time there
was union difficulties and that he didn't have that much
work. He said he had to lay us off, but . . . to keep in
touch with him." (Emphasis supplied.) Hall repeatedly
returned in person, and telephoned, but was not rehired.
Some of the most revealing credited testimony came
CURRENT CONSTRUCTION CORP.
from cleanup man Frazier, who was absent (with sickness
in the family) at the time of the March 31 mass discharges.
He did not learn about his termination until Friday, April
7, when cleanup man Smith (who lived upstairs from him)
came to his home, brought him his "few days pay coming,"
and reported that "They laid off a lot of the guys." Frazier
then went in to work that Friday or the following Monday.
Foreman Bruno Cupicha (a member of Sanitation Local
813) asked who were the drivers that day, and President
Esbm answered that they were Marion Smith and Edward
Carter (both members of Local 813). Frazier, who had
spent much of his time driving to the dump, asked, "What
about me?" Esbin said he did not have anything, but to
come back the next day. Frazier returned home and, later
that day, saw Smith driving a company truck to his home,
"to get a sandwich or something," on the way to the dump.
The next workday, Frazier returned for work and saw "a
bunch of new guys' (from Laborers Local 713). It was then
that Frazier met a representative from Smith's union,
Sanitation Local 813. (Frazier, like other cleanup employ-
ees, had been required on February 25, dung the
Teamsters Local 282 strike, to sign application and
checkoff cards for Local 813. However, the strike had been
settled on the next workday, February 28, and Frazier and
the others had not become members of Local 813. The
Company had not checked off either their initiation fees or
dues.) The Local 813 representative spoke to Manager
Stumer on nonmember Frazier's behalf, and asked if there
was some way Stumer could put Frazier to work. Stumer's
response (as recalled by Frazier and not denied) was, "No,
there is nothing, because the way it is tied up, we have to take
so much men out of this union, and so many men out of this
union" -referring to Sanitation Local 813 and Laborers
Local 734. (Emphasis supplied.) Stumer then told Frazier
to "come to my office tomorrow afternoon," but added, "I
will let Smitty know." Frazier heard nothing further from
Smith or Stumer.
Thus, when the Sanitation Local 813 representative
inquired early in April if Manager Stumer could return
Frazier to work, Stumer at least implied that the Company
-having laid off or discharged all of the cleanup
employees except the leadmen-had decided (or agreed) to
recall only the Local 813 members, and to employ only
members of Laborers Local 713 as replacements. (I note
that Office Manager Wagner claimed that in late April or
early May Local 731 and Teamsters Local 282 agreed that
Local 813 would have three chauffeurs and helpers on the
job for the duration of the contracts. I discredit this
testimony because it is inconsistent with the proposed
collective-bargaining agreement which was then being
discussed in negotiation between the Company and Local
282, excluding only "present sanitation truck drivers." But,
even if Wagner's testimony were true, it would not explain
Stumer's statement to Frazier, early in April, about a
decision or agreement to recall or hire only members of
Locals 813 and 731.) The payment of additional dues and
supplemental benefits to Local 813 is mentioned below.
Accordingly, I find that when the Company discharged
and refused to rehire the cleanup employees, it had
knowledge of, or at least suspected, that they constituted
the majority of Teamsters Local 282's support.
729
In passing, I note that the Company has made some
erroneous assertions in its brief . It contends that "immedi-
ately after" the February 28 recognition agreement, the
Company "began withholding" Sanitation Local 813
initiation fees and dues on behalf of five discharged
cleanup employees, Carter, Smith , Sanders , Blacknall, and
Hall. It also contends that, even if it believed that some or
all of these were Teamsters Local 282 supporters on
February 28 , it is clear that , "as Stumer and Esbin and
Warren Wagner testified," the Company , "at the time of the
discharge-some five weeks later-believed that these
men were now Local 813 men." To the contrary, the
evidence shows that the Company did not begin withhold-
ing their initiation fees and dues "immediately after"
February 28 , or at any time before the March 31 mass
discharge . Furthermore , Manager Stumer , President Esbin,
and Office Manager Wagner did not testify that they
believed Sanders , Blacknall , and Hall were Local 813
members at the time of their discharge . Both Stumer and
Esbin named only Carter and Smith as being Local 813
members. Wagner explained how it happened that the
Company deducted from their backpay, weeks after March
31, the $36 in dues for Local 813 members Carter and
Smith (for 3 months, April-June), and $250 in initiation
fees and $94 in dues (for 8 months , November 1971
through June) for nonmembers Sanders , Blacknall, and
Hall. Wagner testified that after the cleanup employees
were required to sign the Local 813 checkoff cards on
February 25 (during the strike) he never saw the cards after
that, and no request was made for payment of any dues for
them until late April or early May, when the city
comptroller's office was requiring the Company to give the
employees backpay for the unpaid prevailing wages and
benefits . Wagner testified that at that time Local 813
claimed that it was entitled to the initiation fees, dues, and
$1.87 an hour welfare and pension payments from
November 1971 for three "helpers," whom the Company
then chose "at random" (Sanders, Blacknall, and Hall)
from the cleanup employees who signed checkoff cards on
February 25 . I therefore reject the Company 's contention
that on March 31 it believed these three cleanup employees
were members of Local 813.
I note that Sanitation Local 813 continued to bill the
Company for supplemental benefits for its three members
(Carter , Smith, and Supervisor Cupicha), and for three
other unidentified helpers among the new cleanup employ-
ees who were members of Laborers Local 731. The payroll
records in evidence through June 14 show that the
Company made no weekly welfare and pension payments
for any of the seven new cleanup employees (nor for
trimmer Lukowski, evidently because the office manager
erroneously believed that Lukowski was a cleanup employ-
ee). I also note that one of the Company's exhibits reveals
that Local 813 billed the Company for $216 in dues for
July and August : that is, dues at $12 a month for nine
employees , even though Local 813 's only members on the
job were Carter , Smith , and Cupicha . (The evidence does
not disclose what, if any, understanding or agreement there
was concerning employees being hired from one union and
dues being paid to another union .) I consider this evidence,
not only in connection with the evidence of company
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
knowledge (including Frazier's credited testimony that
Manager Stumer refused to rehire him, stating that "we
have to take so much men out of this union, and so many
men out of this union"), but also in connection with the
evidence of company motivation for the mass discharge.
The evidence indicates that the Company=by eliminating
supporters of Teamsters Local 282, hiring members of
Laborers Local 731, and paying dues and supplemental
benefits to Sanitation Local 813 for nonmembers-was
thereby able to pay the supplemental benefits for only a
portion of the cleanup employees, at a saving of $1.87 an
hour on the others, despite the ruling by the comptroller's
office. (Stumer may have had this in mind when he made
the above-mentioned statement to the Local 282 employee
organizers in late May that "there was no room for Local
282" and that he "couldn't afford the rate of Local 282."
Not only were Local 282's welfare and pension benefit
payments higher than $1.87 an hour, but any agreement
with Local 282-which was then seeking to represent "all
employees covered by the recognition agreement"-un-
doubtedly would require the payment of welfare and
pension benefits for all the employees in the bargaining
unit , omitting none.)
3. Fear of "doubling up" and shortage of
trimmers
In early March, when the city comptroller's office ruled
informally that the Company must pay the prevailing rate
of its cleanup employees, the Company was faced not only
with the requirement to raise wages, but also with a dispute
between Teamsters Local 282 and Laborers Local 731 over
their respective jurisdictions (despite the joint recognition
of Local 282 and Sanitation Local 813 in the February 28
recognition agreement). The Company' s major concern
over the dispute was that there be no "doubling up" on the
bucket truck. As expressed in the Company's brief, "Since
the bucket truck would be driven from one tree to another,
and then remain motionless while the cutting was being
done, the industry practice was for the driver to get out of
the truck and do pruning. If Locals 282 and 731 both
insisted on representing this man, the result would be two
men instead of one-a 282 driver who would spend most of
the day sitting and waiting to move the truck-and a 731
pruner."
Upon the intervention of the Teamsters and Laborers
Internationals, the fears of the Company were magnified.
Upon instructions from its International, Teamsters Local
282 proposed to agree with Laborers Local 731 in writing
that Local 731 would have jurisdiction over all nondriving
trimming and cleanup employees, provided that Local 282
would have jurisdiction over certain drivers (including the
bucket-truck drivers). There was a danger that such a
division of the work could lead to "doubling up."
Meanwhile, the Company was having difficulty finding
qualified trimmers (pruners). Before the February strike,
Laborers Local 731 had refused to refer trimmers unless
the Company signed the Local 731 multiemployer agree-
ment. The Company was placing newspaper ads for
trimmers, and the latest ad (running from March 22-27)
got no response from qualified applicants.
In the meantime, as admitted by President Esbin, Local
731 was "constantly requesting me to sign a contract."
When asked by company counsel if he had "meetings with
Local 731" after the recognition agreement was signed,
Esbin answered, "Yes." He then testified what happened
"at that meeting": Local 731 telling him that "if I signed
this contract, any problems I have got . . . with [Teamsters
Local 282 Organizer] Bai, will be straightened out, and that
will be the end of it." (Upon being asked. when this
particular meeting was held, Esbin testified , "I can't
honestly say .") I infer that at least some of the Company-
Local 731 meetings occurred soon after the signing of the
recognition agreement , which made no reference to Local
731's jurisdiction.
It was in these circumstances that the Company, without
any prior notice to any of the cleanup employees, suddenly
discharged all of them (except the two leadmen). Then
after the cleanup employees were off the payroll for about
a week, Laborers Local 731 began referring both trimming
and cleanup employees to the job. Within a week, the
Company had reinstated the two members of Sanitation
Local 813. However, the Company refused to recall or
rehire any of the other cleanup employees, a majority of
whom had supported Teamsters Local 282. Furthermore,
as already found, the Company took unlawful actions to
undercut the remainder of Local 282's support.
Irrespective of the motivation, the results of the Compa-
ny's actions were to put the Company in a better position
to get referrals of experienced trimmers from Laborers
Local 731 (the union which represented such employees in
the area), while at the same time , eliminating the
jurisdictional problem (and the danger of "doubling up").
I now consider the evidence of the Company's illegal
motivation.
4. Evidence of discriminatory motivation
a. Rotating crews
President Esbin and Manager Stumer gave conflicting
"explanations" of why the Company laid off or discharged
the cleanup employees on March 31, and assigned the
trimmers on a rotating basis for a week to clean up their
own trimmings, before getting referrals from Laborers
Local 731.
At one point , Esbin indicated that the employees were
laid off to determine if new employees would be more
productive, testifying "we were previously prepared to call
them back if the new men did not prove out to be as far as
our expectations." To the contrary, Manager Stumer
testified that the cleanup employees were laid off in order
to try the rotating system as an experiment for a week and,
if the experiment did not work, "I would call these people
back." According to him, the experiment did work, but he
then discovered that additional trimmers were not availa-
ble to continue the rotating system. He testified that he had
placed an ad for trimmers about a week earlier in the
"Long Island Press," looking for trimmers to work as
ground men , but "when I saw that we had an ad in the
paper . . . over a week , and we had no response to it," he
called Local 731 "near the end of the week" (about April 6
or 7) "and asked them for some men for the following
Monday or Tuesday." (Esbin testified that the Company
CURRENT CONSTRUCTION CORP. 731
did not advertise for ground men because "We had tried
the week after the layoff an experiment which Mr . Simmer
had come up with as a suggestion . . . it was like a work of
art. And this is why we tried to get more climbers" for "a
rotating ground crew.")
I find that these explanations are fabrications . It is clear
that the Company had no intention of recalling any of the
cleanup employees "if the new men did not prove out,"
because it did not do so when some of the new employees
proved to be unsatisfactory and when the cleanup crews
were working shorthanded , necessitating much overtime.
It is also clear that the rotating system was not
successful . As the Company's own witness (trimmer
Warner) testified, he refused to do any of the cleanup
work, "I didn't want nothing to do with cleaning up... .
The men . . . were hired to trim trees , not to clean up .. .
they didn 't like it, because . . . they weren't making any
money . . . any bonus money. They were getting their
regular pay, but . . . you could get a hundred dollars a
week bonus . . . if you have a good week ." (The bonus
records were not produced .) Moreover , the Company was
aware , before the so-called experiment began , that trim-
mers were not available . Contrary to Manager Stumer's
testimony , there was no ad in the newspaper at the time,
and the last ad (which ran from March 22-27) produced no
results. (The next ad ran from April 8 -14, when Local 731
referred only one trimmer.)
I find that the rotating system was clearly a subterfuge to
justify the discharge of the cleanup employees as a group,
and that the loss of production that week contributed
toward the delay which later resulted in the postponement
of the startup of the tree removal work.
b. Falsified payroll records
Although Sanitation Local 813 members Carter and
Smith were reinstated as cleanup employees within a week
after their March 31 discharge with other cleanup
employees , the Company failed to show them on the
payroll until May 25. This was clearly a distortion of the
records to enable the Company to argue that the new
cleanup employees were more productive.
As already found , discharged employee Frazier saw
Smith driving a company truck about a week after the
March 31 mass discharge, and was told by President Esbin
soon thereafter that Smith and Carter were the drivers.
When Cleanup Leadman Lacker was shown at the trial the
payroll records, indicating that Carter and Smith did not
work for nearly 8 weeks between March 31 and May 25,
his response was: "If they were not working , who was
taking the trucks to the dump? I know I certainly
wasn't. . . . And for what the book states, that they were
off, and if they were off, how would trucks get to the
dump? It don 't make sense ." Undoubtedly this leadman
(who impressed me as being an honest witness ) would have
known if these two cleanup employees had been absent
nearly 2 months. A company exhibit, introduced on the
fourth day of the trial , states that "Yes," Carter and Smith
were "Discharged," with the notation that they were
"Recalled at later [unspecified ] date ." When Manager
Stumer was asked by company counsel , "Which employees
did the Company discharge on that Friday," he named
Carter and Smith first . Later when asked about the
purported 2-month absence , Stumer testified. "To my
recollection, it wasn 't that long, but if that is what the
records show, then it must be right. . . . As I say, I didn't
remember it to be that long a period, but obviously it was."
(Emphasis supplied .) Moreover, Office Manager Warren
Wagner confirmed that Carter and Smith were working in
April and early May, when the Company was negotiating
with Teamsters Local 282 for an agreement covering
Lacker, Smiarowski , Warner, and Laws . Upon being asked
about the meaning of the provision , "This Agreement shall
not apply to present sanitation truck drivers ," in a May 12
draft of the proposed agreement , Wagner named Carter
and Smith as being `present sanitation truck drivers."
(Emphasis supplied.)
The significance of this attempted deception becomes
apparent when the payroll hours of work are examined. On
May 25 (the beginning of a new pay period when the
names of Carter and Smith were returned to the payroll
record), and for the next 3 pay periods (the last payroll
records in evidence), Carter and Smith were working longer
hours than any other employee (inasmuch as they were
usually going to the dump after the other cleanup
employees finished for the day). On May 25 and the next 6
workdays , both of them worked from 11 to 15 hours daily,
averaging 5.6 hours of daily overtime. (I also note that the
name of the new messenger, Nathan Laws , is omitted from
the first payroll period following the mass discharge, even
though the above-mentioned company exhibit states that
"No," Laws was not "Discharged ," and Manager Stumer
explained that Laws was not discharged because "he was
not actually part of the ground crew.")
In still other respects, the Company apparently kept
"two sets of books ." Although the payroll records show the
daily hours worked , the overtime pay, the welfare and
pension payments, and other facts , they do not show the
production bonus given the trimmers. (It was revealed on
the eighth day of the trial that the trimmers were paid a
bonus of $1 for every tree trimmed each day after the first
10 trees . The bonus is paid weekly.) As already mentioned,
the Company did not include cleanup employees Helback
and Peterson on the payroll records before the strike, nor
show temporary employee Stiers on the payroll records.
The omission of Peterson 's name is discussed later.
c. Concealment of changes
When giving the Company's defense in the case,
Manager Stumer claimed that the new cleanup men did
,.the job two and a half times as fast" as the discharged
employees had done the work, and President Esbin
claimed that the difference in efficiency was "Like night
and day," and although "we did have some overtime .. .
we made more money on the job."
But when testifying about the purported greater efficien-
cy after the mass discharge, the company witnesses did not
candidly reveal the various changes which the Company
made in a vain effort to assist the new employees to keep
up with the cleanup work.
It was not until near the end of the 8-day trial, on
rebuttal , that it was revealed that after the March 31 mass
discharge the Company began requiring the trimmers to do
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
part of the cleanup employees' work. Cleanup Leadman
Lacker, when recalled, credibly testified that after March
31, for the first time, the trimmers "would stack their brush
and it was a lot easier for us to chip it up." This was
confirmed by trimmer Warner, when recalled as a
company witness. He testified that after the layoff the
Company "had this big meeting" with the trimmers, and
"it was understood" that the trimmers, before proceeding
to the next tree , would "cut the big limbs up" a few times,
"push them into the street," and "stack their brush." He
estimated that this would take 4 or 5 minutes for each tree.
(It is undisputed that trimmers were paid a bonus of $1 a
tree for each tree exceeding 10 a day, and "you could get a
hundred dollars a week bonus [that is, for an average of 30
trees a day], or more, if you have a good week." At 4 or 5
minutes each tree, that would amount to 40 to 50 minutes a
day when trimming 10 trees, or 2 or 2 1 /2 hours a day
when trimming 30 trees.) Warner first testified that this
would result in a saving of maybe a "couple of hours" a
day for the cleanup employees, and then changed his
answer to between 1 and 1-1/2 hours. (His credibility,
when first called as a General Counsel witness and later as
a company witness, is discussed later.) Warner testified
that the trimmers had never stacked their brush before,
although the inspectors had made them clean the sidewalks
and driveways. When recalled as a witness , Manager
Stumer admitted that "after the layoff" or "about the time
of the layoff," he did instruct the trimmers to "use their
chain saws . . . and make a couple of cuts in these big
pieces of brush . . . prior to piling it up in the front of the
tree," but testified, "I don't personally think it had
anything to do with the layoff." (I discredit the denial.)
Cleanup Leadman Lacker also credibly revealed on
rebuttal that after March 31 "Whenever we were behind"
the Company would knock the trimmers off an hour early
and send them back to help the cleanup employees for an
hour. This had happened only once or twice before March
31, and that was in December 1971; they "used to just cut
and cut and didn't really want to come back . . . they just
wanted to go and get their bonus."
Other changes were made at the time of the mass
discharge to improve the efficiency. The Company fur-
nished an extra chain saw for each of the two cleanup
crews. (Manager Stumer gave much false testimony about
permitting only the two cleanup leadmen, and none of the
discharged employees, to use chain saws in their work.
Cleanup man August's regular job for 3 weeks before
March 31 was to use a chain saw to cut up logs and load
them on a dump truck he was driving. Supervisor
Cupicha-who did not testify-issued the saw to him to
use, and Stumer observed him using it. Cleanup Leadman
Lacker credibly testified that all of the cleanup men had
used the chain saws, that some of them did so regularly,
that he never heard anyone from management tell any of
them not to operate the saws, and that some of the cleanup
employees did part of the sharpening and maintaining of
the saws. Finally, when the Company called trimmer
Warner as a rebuttal witness, Warner readily admitted that
"the men on the ground crew" used chain saws, stating that
"They had to . . . every day, during the day.") Also to
speed up the work, the Company began providing, when
available, a "follow-up" truck for one of the crews to use.
(This enabled the four-man crew to be divided, with two
employees putting the larger trash in the chipper, and the
other two employees sweeping up the smaller trash and
putting it in a dump truck-lessening the chances of
putting pebbles in the chipper, dulling the blades.) In
addition, one of the sanitation (garbage) trucks was
converted into a regular trash truck by removing the
compression unit, boxing in the rear, and making more
loading space. (Sanitation trucks were not used by other
tree contractors for this type of work. Wagner Carting had
used these old sanitation trucks in the rat control program.)
As cleanup man August credibly testified, they had had a
lot of trouble with the hydraulic lift on one of the
sanitation trucks, "You couldn't pull the thing, you had to
get inside the truck . . . and hit it up, or it wouldn't come
down right. I wasted a lot of time doing that" (before being
assigned to cut and load logs on a dump truck). Explaining
the improvement in the loading procedure after one of the
sanitation trucks was converted "right after" March 31,
Leadman Lacker credibly testified that "the chips would
come out of the chipper and right . . . into the truck. The
chips wouldn't go into a hopper where a man had to be
there to pull levers to put it inside the truck, it automatical-
ly would just shoot in there and this would save a lot of
time, at least an hour or two of the man not to stay and
pull levers and get jammed in the packer.... You also
save the time of not having to sweep up . . . because with
the hopper, the chips blow against the hopper and they
splatter, go all over the place." (Although the Company
converted only one of the sanitation trucks at that time, it
stopped using sanitation trucks in October or November
-whereupon Sanitation Local 813 disclaimed jurisdiction
over any of the employees.) When recalled, Manager
Stumer first admitted that the conversion of the sanitation
truck speeded up the loading process "a little," then denied
it, and next admitted it, but denied that the overall
efficiency was improved by the change. (I discredit his
denials.)
Also after the mass discharge, the Company began
keeping the equipment in better repair. Before March 31,
as Leadman Lacker credibly testified, the blades on the
chippers would not be sharpened at regular intervals: "they
used to bring chippers out on the job" and the blades on
both machines "would be dull." Manager Stumer would
say to try and work with one, while one was taken back to
the garage or the blades would be changed there on the
job-losing time during working hours. When using a
chipper with dull blades, "You would fight it. It would not
take the branches and you wound up falling so far behind
it was unreal ." (As credibly described by cleanup-man
August, "when you pull a piece of wood in, it normally
pulled it in," but "if the blades are dull, you have to force
it. Eventually they get so bad it takes a long time, and that
is when they changed them.") But after March 31, the
Company had the blades changed every Saturday, as it
originally did when the job began. Manager Stumer
testified that earlier President Esbin had personally gone to
the gas station every Saturday morning and changed the
blades and serviced the chipping machines. (The blades
were always sent out for sharpening.) But after they started
CURRENT CONSTRUCTION CORP.
working in Brooklyn, trimmer Graue would "change the
blades at his convenience," or the Company's convenience.
Stumer testified that "Normally," when dull blades were
mentioned to him by Graue, Supervisor Cupicha, or
Lacker, "if they were dull enough they couldn't work with
the rest of the day, we would send the truck back to the gas
station and pick up a fresh chipper with sharp blades. If it
could last out the day, they would use it for the rest of the
day. . . . On a rare occasion we might have Donald Graue
service a vehicle on the jobsite." Thus, when so testifying,
Stumer admitted some of Lacker's credited testimony
about dull blades (although elsewhere, when asked if the
Company would delay the installation of sharp blades and
allow the jobs to continue with dull blades, he answered,
"No, that's not profitable doing things that way. No,
definitely not.") Stumer denied that the chipper blades
were changed on a regular basis, every Saturday, after
March 31, or more often than before. Graue, who testified
earlier as a company witness, was not recalled to testify
about this. I discredit Stumer's denials. I note that when
recalled to testify Stumer produced invoices from one
supplier, claiming that they showed every time the chipper
blades were bought or sharpened, and "That's the only
man we did business with." However, a tabulation of these
invoices indicates that the Company must have been
dealing also with another supplier before or after March
31. It shows that invoices received for about the first 3
months of operation, through January 29 (approximately
the time President Esbin was changing the blades every
Saturday), there was a total of 26 blades purchased or
sharpened, over 8 a month. Thereafter, the tabulation shows
only 4 in February, 5 in March, 5 in April, 3 in May, 7 in
June, 3 in July, none in August, 3 in September, and 2 in
October-an average of less than 4 a month in a 9-month
period. (Concerning the reliability of the Company's
documentary evidence, I have found above that the
Company kept inaccurate payroll records, falsifying them
for purposes of deception.)
Furthermore, after March 31, the Company placed
Cleanup Supervisor Cupicha on a commission basis, as a
means of speeding up the work. As explained by Office
Manager Wagner, this change would give Cupicha an
incentive to "push the men a little bit harder."
Upon presenting its defense at the trial, the Company
gave full credit to the replacement of employees for
increased efficiency-without giving even a hint about
most of these changes.
d. Discharged as a group
(1) Sudden action
During the 3 or 4 weeks, between early March when the
Company learned it would have to increase the cleanup
employees' wages and March 31 when it discharged them,
the Company said nothing to the two leadmen or the other
cleanup employees about production problems or increas-
ing production. Although the Company instituted the
above-mentioned changes after the mass discharge to speed
up the work, it neither mentioned nor introduced any of
these changes before March 31.
On Friday, March 31, Manager Stumer called all the
733
cleanup employees (except the leadmen) to his office, and
assigned different reasons for laying them off. (At the trial,
the Company introduced an exhibit which it had prepared,
stating that the employees were "Discharged." In its brief,
the Company refers to it as a layoff.) Stumer variously
explained, to different employees, that he was having
union difficulties, that the work was slow, certain men were
not working, that the Company was losing money, etc. He
told August that he was a good worker, and to call him
back in about a week and he would probably reinstate him.
(When August called back, Stumer said he could not rehire
him because of "union problems.") Stumer told others that
he would call them, or they should keep in touch. About a
week later, Frazier (who was absent on March 31) learned
about the mass discharge, and twice tried to return to
work. The first time , as discussed before, President Esbin
said that Carter and Smith (Sanitation Local 813 members
who had already been reinstated) were the drivers that day,
and the second time, Stumer said there was nothing for
Frazier because "we have to take so much men" from "this
union" (referring to Local 813) and "this union" (referring
to Laborers Local 731, whose members the Company was
hiring as replacements).
As already mentioned, President Esbin testified that the
Company was prepared to recall the cleanup men "if the
new men" (referring to Laborers Local 731 members) "did
not prove out," whereas Manager Stumer testified, "I
would call these people back" if the 1-week, rotating crew
experiment (involving already employed trimmers , not new
employees) did not work.
Manager Stumer was asked at the trial why he had laid
off cleanup man Carter (a Sanitation Local 813 member
who regularly drove to the dump). Stumer answered that
"when we made this decision, we just put everybody in the
category of a group, and when we had to lay off, we just
laid them all off. We didn't start digging into that person or
this person or the other person, really." When asked if he
did need someone to drive to the dump, Stumer answered:
"I don't remember the reason, quite honestly . . . that we
didn't keep him on at the time.... I personally had no
complaints against him at the time.... He was out for a
while and we did hire him back . . . he worked for us until
only three weeks ago when the pruning job broke up."
(Emphasis supplied.) When later asked why he laid off
Carter and Smith, he answered: "Personally, I can't think
of any reason at this time, no."
In an effort to justify the mass discharge, the Company
in its brief argues : "one fact that emerges inescapably from
the record is that Respondent had a very low opinion of
the groundcrew, with the exception of [leadmen] Lacker
and Smiarowski."
(2) Number discharged
The General Counsel and the Company agree that the
March 31 layoff or discharge included 11 cleanup
employees: Edward August, Benjamin Blacknall, James
Carr, Edward Carter, Grady Frazier, Raymond Hall,
Floyd Jones, Richmand Pierre, Herbert Sanders, Marion
Smith, and James Sweeney.
The complaint alleges that the Company discriminatorily
laid off a 12th employee, Melvin Peterson, who (as credibly
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified by Leadman Lacker) was a slow-working, old
person with heart trouble. Peterson's name never appeared
on the Company's payroll. Office Manager Wagner
testified that Peterson's name was omitted at his request to
permit him to continue receiving welfare or unemployment
benefits while working. The evidence does not reveal his
wage scale , and the Company contends that it could find
no records of how much he worked or even how much he
was paid (despite the tax and other implications). Although
the parties stipulated that he was employed at the time of
the strike, the General Counsel failed to prove how many
days he worked after the strike, whether he worked full-
time , or whether he was employed on March 31. He did
not testify. Manager Stumer did not name him when listing
those "discharged," and denied being aware if Peterson
was working at that time. In view of the failure of the
General Counsel to prove that Peterson was discharged,
and in view of the clear economic justification the
Company had for discharging him (if still employed) rather
than paying him the prevailing rate, I dismiss the allegation
in the complaint that Peterson was discriminated against.
Thus, 11 cleanup employees were laid off or discharged
on March 31, and one person is in doubt.
e. Inexperienced replacements
By the time they were discharged on March 31, all of the
cleanup employees had much experience on the job. (The
work involved stacking the trimmings from the trees,
cutting the larger limbs in shorter lengths with a chain saw,
loading logs in a truck, placing trimmings in the chippers,
operating the levers on the sanitation trucks-to operate
the compression mechanism, sweeping up and loading the
remaining trash, moving up the trucks, and driving to the
dump.) Carter, Frazier, Pierre, Smith, and Sweeney had
been working on the job since November. (While a
messenger, Sweeney spent an estimated 20 to 40 percent of
his time doing cleanup work.) Blacknall, Hall, Jones, and
H. Sanders had worked since December. Carr was hired on
February 1 and August on February 7.
Contending that the Company was seeking employees
with former tree experience (which none of these 11
employees had), Manager Stumer and President Esbin
endeavored to leave the impression that the replacement
employees were "experienced" tree men. Stumer, when
asked if the replacements had "prior experience" in that
kind of work, answered, "To the best of my knowledge,
yes, it was represented to us that they did." He testified
that although he did not interview the cleanup men
referred by Laborers Local 731 on April 10, "They were
sent down as experienced help." At another point, he
testified, "We tried the rotating system with the climbers
going on the ground, which proved to be very effective. We
subsequently hired new ground men with experience, and it
proved out to work very well." (Emphasis supplied.) When
the company counsel asked Esbin what kind of employees
Local 731 supplied them, he answered, "They supplied us
with men that were experienced ground men." (Emphasis
supplied.) The facts are far different.
There were seven new employees shown on the payroll as
cleanup employees between April 10 and June 14. (An
eighth, not shown on the payroll, quit or was discharged
after 2 hours.) The only one of these new employees who
had any prior experience in tree work was Donlon, who
applied on April 10 in answer to the company newspaper
ad. (He was absent with an injury from April 18 until May
16.) Two of those referred by Local 731 were Belinsky and
Morrongello . As revealed by trimmer Warner upon being
recalled as a company witness , either Manager Stumer or
President Esbin instructed Belinsky and the "old fellow"
with a "bad back" (Morrongello), when hired on April 10,
to go with Cleanup Leadman Smiarowski and Warner,
who taught them how to use a chain saw "and the proper
way to do the job." Stumer belatedly admitted that
Morrongello was not satisfactory and was terminated (on
April 21). Soon after Morrongello left, Stumer hired (or
said he would try out "for a couple of days") two
Mazzanno brothers , who went to the garage looking for
work and who admitted having no experience. One of
them, as described by Stumer, "was a joke. I went over to
talk to him about two hours after he started . . . he said
this is not my bag, and that was the end of that." He was
terminated (and never placed on the payroll). Later, in the
latter part of June, Stumer admittedly hired as a ground
man (upon Warner's recommendation) an inexperienced
person who was "working for Ideal Toy in Jamaica, but I
said I would give him a try." The new employees were
either members of Local 731, or they joined after being
hired.
Thus, rather than rehiring any of the experienced
employees discharged on March 31, the Company was
hiring inexperienced persons "off the street," referred by
Laborers Local 731, or from whatever available source.
I. Comparative ability of old and new crews
With the exception of three, all the cleanup employees
hired between November 1, 1971, and the following June
14 were inexperienced in tree work. The three exceptions
were the two leadmen , Lacker and Smiarowski, who were
hired about the second week in December, and Donlon,
who was hired on April 10.
Admittedly, Manager Stumer paid little attention to the
cleanup employees . In his words, "I was more interested in
the topping crew . . . than the cleanup crew. I didn't really
pay that much attention." When the Company began the
job, neither he nor the other company officials had any
experience in such tree work . He spent most of his time
with the trimming employees (who were experienced),
while learning the operation with the assistance of an
outside consultant . There was some criticism from one or
more of the trimmers that the cleanup employees were not
experienced, and that the Company would do better with
experienced men. (Even the cleanup supervisor, Cupicha,
had no prior experience, and was being paid only $4.20 an
hour.) Finally, after operating about 6 weeks, the Company
hired two qualified, experienced leadmen (Lacker and
Smiarowski), who led the cleanup work. Still, the Company
paid little attention to improving the efficiency of the
operation-while paying all the cleanup employees (except
the leadmen) less than half the prevailing rate. The
Company placed at least one limited-service employee on
the job. (Peterson had suffered a heart attack. He-and
also Helback for an undisclosed reason-were not shown
CURRENT CONSTRUCTION CORP.
on the payroll records.) Although many of the cleanup
employees regularly used a chain saw in their work (after
Lacker and Smiarowski were hired to lead the work), the
Company furnished only one saw for each of the two
cleanup crews, until after the strike when first Lacker
began using an extra saw, and later cleanup man August
was assigned one to cut up logs. (Each of the two cleanup
crews was given another chain saw after March 31.) After
moving the operation to Brooklyn in early February, the
Company discontinued its practice of changing the chipper
blades every Saturday, and the cleanup employees were
repeatedly slowed down by having to use a chipper with
dull blades. (After the March 31 mass discharge, the
Company began changing the blades every Saturday
again.) The Company, unlike its competitors, was using
mostly sanitation trucks to haul away the trimmings. The
compression mechanism on one of them particularly
slowed down the work. (After March 31, the Company
converted one of the sanitation trucks into a regular trash
truck. In October or November, it discontinued using
sanitation trucks.) Although the Company used a separate
dump truck to haul away the logs, it required the
employees to place all the remaining trimmings in the
chipper. (After March 31, the Company provided, when
available, a separate follow-up truck in order that one of
the crews could be divided, with two employees staying
behind to sweep up and load the smaller trash.) Further-
more, the cleanup supervisor, being paid only $4.20 an
hour, had little incentive to have the work speeded up.
(After March 31, he was placed on a commission, to "push
the men a little bit harder.")
It was under these circumstances that the Company,
when informed in early March that it must pay the cleanup
employees the prevailing rate, protested that they were not
"experienced" and were not productive enough to justify
the higher rate. Manager Stumer twice attempted to get
some "relief" from Teamsters Local 282 Organizer
Bai-the second time, offering him a special inducement
for a lower rate, according to Bai (as discussed later).
Failing in these efforts, the Company discharged 11 or 12
of the employees, instituted the foregoing changes to
improve the efficiency of the cleanup operation, hired a
smaller crew after rotating the trimmers for a week, and
transferred a substantial part of the cleanup work to the
trimmers (while eliminating virtually all of Local 282's
employee support).
Then at the trial, the Company praised the new cleanup
employees as "experienced" and "motivated," and gave a
low appraisal of most of the employees who had been
discharged. At one point, Manager Stumer testified that
during the 1-week rotating experiment, and since then with
the new crew, there was no question that "an experienced
man is going to give me . . . two and a half times the
amount of work of the inexperienced men that I had
working on the ground crew prior to that." (The compara-
tive production of the old and new crews is discussed
later.)
In addition to giving the false testimony that he did not
allow any of the cleanup employees, except the leadmen, to
use a chain saw, Manager Stumer impressed me as being
less than candid in describing the qualifications of the
735
discharged employees. He testified that employee Jones
was "about the only one I can honestly say, in my opinion,
would have developed into a good worker" if he had put a
lot of effort into developing them. (President Esbin
testified that Jones, and "possibly" August, "could have
made it.") Both Jones and August were discharged and not
rehired . (I note here that for an undisclosed reason trimmer
Warner became a much less candid witness between the
time he testified for the General Counsel and the time he
was recalled as a company witness. The first time on the
stand he testified that about a couple of months before the
February 22-28 strike he talked to Stumer and "I didn't
come right out and say they were no good. I says . . . he
can get better men" than the cleanup employees working at
that time-without wanting to criticize them. When
recalled as a company witness, he appeared to be forthright
in some respects , but he evidently gave some fabricated
testimony concerning the discharged employees. He
testified that he mentioned to Stumer "a few times" that
Stumer should get some men that "know what they are
doing," that although he only occasionally observed the
ground crew, he knew "they were not adequate men for the
job," they were "slow," they had "no initiative," they were
"no good" for this type of work (but later changing his
testimony, to apply to "most of them"), and particularly
named Jones as not being qualified "in this type of work,"
claiming that he saw Jones run the chain saw into the
ground at least six times . Thus, he singled out as being
unqualified the employees whom both Stumer and Esbin
named as having the most potential . I find this belated
appraisal of the discharged employees to be fabricated.)
Concerning the three employees who did most of the
driving, Stumer claimed that one of them (Frazier) was a
heavy drinker, and another (Smith) was "a considerably
heavy drinker at that time." He did not explain why, if this
were true, he allowed Frazier to drive, or why he not only
allowed Smith to drive, but reinstated him with the other
Sanitation Local 813 member, Carter. (Leadman Lacker
testified that there was some dunking on the job, but it was
beer, which a few of the men bought with their lunch.
Stumer had no objection, because Stumer himself sent
some beer around for them to drink on hot days.) When
Stumer was asked why he laid off Carter (who he admitted
was a good employee), Stumer asserted that "we just put
everybody in the category of a group and . . . laid them all
off. We didn't start digging into that person . . . or the
other person, really." He also testified , "I am not accusing
anybody of standing around, they did make an effort to
give us a day's work, but the day's work that they did give
us, compared to an experienced man, in reality , was less
than an experienced man. . . . it was decided . . . if we
are going to make the change, let's make the entire
change." He admitted that he did not warn any of them
about being laid off if they did not work faster or better,
and testified that he did not recall about the work of
several of them.
Of all the witnesses, Cleanup Leadman Lacker was in the
best position to compare the qualifications of the members
of the old and new crews. He worked daily with the
employees, both before and after March 31. Furthermore, I
closely observed him on the stand, and he appeared at all
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
times to be a forthright and honest witness. (I note that
when he was asked whether the new cleanup employees
were "less far behind" the trimmers than before, he
answered that they were the same or closer-apparently
giving his honest recollection at the time. When later asked
about the many hours of overtime worked by the new
employees, he testified that this meant that they were that
far behind the trimmers-who were not working overtime.
As discussed later, the payroll records show that in March,
before the mass discharge, there was comparatively little
overtime worked.)
Leadman Lacker described the work of each of the
discharged employees, and positively stated that, with the
exception of Peterson, all of them were very good
employees, and were as good as the new employees. (He
was not asked whether Peterson was working on the week
of the mass discharge, or how regularly Peterson worked.)
He estimated that cleanup man Sweeney, before being
replaced by Laws as the messenger (on March 14), had
worked about 40 percent of his time with the ground crews,
feeding the chipper, using the chain saw to cut up the
wood, stacking the trimmings, and sweeping. Stating that
Sweeney was a "little wild driving that station wagon,"
Lacker testified that he thought Sweeney was a better
cleanup man than Laws (who also worked at cleanup
about 40 percent of the time), and was clearly as good as
the new employees hired after March 31. (1 discredit
Stumer's claim that neither Sweeney nor Laws did cleanup
work while serving as a messenger, and that Sweeney was
discharged because of his unsatisfactory service as a driver.
Sweeney had not been discharged when he was replaced as
messenger ; he was reassigned and was working full time as
a cleanup employee.) Lacker demed that before the layoff,
in February or March, he had any complaints from
management concerning any of the cleanup employees
working with him. I credit this testimony.
g. Comparative production
(1) Number of employees working
In order to get as accurate a comparison as possible of
the number of employees working before and after March
31, I have taken into consideration the number of
employees performing any work on full workdays (when
five or more employees worked as long as 8 hours), for the
2 weeks preceding March 31 (when the decision to
discharge the employees was apparently being made), and
for the approximately 10 weeks from April 10 (when
members of Laborers Local 731 were first employed as
cleanup men, along with the two leadmen, and the two
Sanitation Local 813 members , Carter and Smith-who
were omitted from the payroll) until June 14 (the end of the
last pay period in evidence). Calendar weeks are used, in
view of the change in the payroll period during this time.
The cleanup employees were August, Belinsky, Blacknall,
Carr, Carter, Donlon, Frazier, Hall, Jones, Lacker,
Mazzarino, Morrongello, Peterson, Pierre, Russo, A.
Sanders, H. Sanders, Smiarowski, M. Smith, Sweeney, and
Vega. Giving the Company the benefit of any doubt about
how many were working before March 31, 1 have included
Peterson, even though the General Counsel failed to prove
how much he was working, or whether he was still working
at the time of the discharge. I include Sweeney after he
became a full-time cleanup employee on March 27. (He
and Laws, who was hired on March 14, worked 8 hours on
the preceding Friday, March 24, whereas the cleanup
employees worked 9 hours that day. Manager Stumer
testified that Sweeney and Laws drove together for a week
or two. I assume that Sweeney was still "showing around"
the new messenger on March 24.) 1 do not include trimmer
Graue, whom the Company admittedly assigned to work as
a cleanup employee when "the situation required,"
although he undoubtedly worked more as a cleanup
employee after April 10, when the Company was working
shorthanded, with much overtime, in the cleanup opera-
tion. The trimmers were Bradley, Bush, Cain, Carmen,
DeSanto, DeTillio, Fusco, Gilligan, Lombardo, Lukowski,
McHugh, S. O'Seay, W. O'Seay, Siderious, R. Smith,
Thompson, Traynor, and Warner.
For the 2 weeks preceding the discharges, there was an
average of 10.9 cleanup employees working, and 10.66
trimmers working. For the 10 weeks after the new
employees began to work (April 10 to June 14), there was
an average of 8.375 cleanup employees working, to 10.675
trimmers working.
Thus, for the 2 weeks before the mass discharge, slightly
more cleanup employees were working on the average than
trimmers (10.9 to 10.66), whereas after the discharge, there
were 2.3 cleanup employees fewer (8.375 to 10.675) for the
full period of about 10 weeks, than the trimmers.
(2) Hours worked
The number of hours worked cannot be computed that
precisely, because of the Company's falsification of the
records-never listing Peterson on the payroll records, and
omitting Carter and Smith for about 7 weeks after they
were reinstated. Furthermore, the Company did not keep a
record of when trimmer Graue was assigned to cleanup as
"the situation required," or how many hours the messenger
worked on cleanup.
Giving the Company the benefit of any doubt, I have
estimated Peterson's hours as being 8 or 9 hours each day,
as worked by full-time cleanup employees, during the 2
weeks preceding the discharge. Although the payroll
records show that Carter and Smith worked longer hours
than any other cleanup employee after their names were
again listed on May 25 (because they usually went to the
dump after the other employees finished for the day), I
have estimated their hours from April 10 through May 24
as being the same as those of one of the new cleanup
employees, Belinsky.
Also, in order to seek a comparative cost to the
Company, I have included at time and a half the overtime
hours worked before and after the discharge.
Figured on this basis, the estimated number of hours
worked by the cleanup employees for the weeks of March
20 and 27 was 772.5 hours, to 648.5 hours worked by the
trimmers. That amounts to 1.192 cleanup hours for each
trimmer hour. For the 10 weeks from April 10 to June 14,
the estimated cleanup hours were 3,733.62, to 3,117.5 hours
worked by the trimmers. That amounts to 1.1976 cleanup
hours for each trimmer hour-just slightly more than the
CURRENT CONSTRUCTION CORP.
1.192 the discharged employees were working. (The
comparative ratio of cleanup to trimmer hours , for the first
4 weeks after April 10 , are respectively : .899, .927 , 1.248,
and 1.541 . This indicates that a large amount of the
cleanup employees work was being done by the trimmers
for the first 2 weeks, in accordance with Leadman Lackey's
testimony , and contrary to the testimony of trimmer
Warner when called as a company witness . Only four
replacements were hired on June 10.)
Thus , when taking into account the overtime hours as
time and a half, I find that the new cleanup crews were
working a slightly larger ratio of hours than the old
cleanup crews . At the same time, the Company was
slowing down the job by assigning the trimmers to do a
substantial part of the cleanup work (cutting up the logs
and stacking the trimmings for the first time , and-particu-
larly at first-quitting early and working with the cleanup
employees when they were far behind). The resulting delay,
when added to the delay caused by the trimmers being
assigned to do the cleanup on a rotating basis during the
week of April 3, undoubtedly was a contributing factor for
the later postponement of the startup of the tree removal
job. (I draw the inference that the Company 's trimmer
bonus records were not produced because they revealed
this drop in the trimmers ' production.)
(3) Extent of overtime
In March , before they were discharged , the cleanup
employees were working little overtime. On 2 days, March
22 and 24, they worked 1 hour of overtime , and on I day,
March 14, most of them worked 2 hours of overtime. (On
March 22 , both leadmen worked only 1 hour ; on March
24, one of them worked about a half day ; and on March
14, both of them worked about a half day .) The only other
overtime worked in March was on March 29 and 30, when
employee August worked a single hour of overtime, and
March 6 and 7, when dnvers Carter and Smith worked an
hour overtime , and three or four other employees worked a
half hour overtime . (On March 7 and 30, the leadmen
worked only 5 hours .) Thus in March , cleanup employees
worked as much as 2 hours of overtime a day only once;
more than one nondriver worked as much as 1 hour of
overtime only twice ; and most of this overtime was worked
when both of the leadmen were absent a large part of the
day (apparently taking 'part in negotiations). Thus, despite
the fact that the discharged employees were confronted
with various obstacles (dull chipper blades , shortage of
chain saws , and having to use only sanitation trucks with
the chippers , with no follow-up truck), the payroll records
show that little overtime was required.
The extent of the overtime worked by the cleanup
employees between April 10 and May 24 is concealed,
inasmuch as the Company omitted from the payroll the
two cleanup employees and drivers , Carter and Smith, who
worked the most overtime after their names were again
shown on the payroll on May 25. However, excluding their
overtime for nearly 7 weeks , the payroll records show
much overtime worked . Some of the new cleanup employ-
ees were working 3 to 4 hours of overtime on April 11, 12,
and 17 , during the first 2 weeks of their employment.
Beginning on April 25, cleanup employees were working
737
from 2 1/2 tc 6 hours of overtime every full workday
through June 14. On May 25 , when the names of Carter
and Smith were restored to the payroll records, they
worked 15 hours (7 hours of overtime ), and on May 31 and
June 1, they worked 14-1/2 hours (6-1/2 hours of
overtime). Thus the Company 's own payroll records show
that the cleanup employees were usually hours behind each
day when the trimmers stopped cutting . (The only overtime
worked by trimmers from March through June 14 was 1
1 /2 hours of overtime by trimmer Lukowski on May 26.)
This documentary evidence disproves much of the
testimony given by company witnesses . I specifically
discredit the claim, made by trimmer Warner when called
by the Company , that the new cleanup employees "stayed
up pretty close behind . Maybe a half a block , a block at the
most." (He later testified , "Occasionally there was a lot of
times where we got up and went, a lot of say , small trees
you could get up and go , and we were spread out quite
far." Elsewhere he testified, "Occasionally they fell behind,
but like I said before , that was understandable , on certain
occasions .") When asked by company counsel near the
close of the trial whether there were times when the ground
crew fell far behind the cutting crews , and had long hours
of overtime 2, 3, 4 days in a row , Manager Stumer claimed
that it could be the size of the trees or the traffic and
parking situation , adding : "I am sure that that did not
happen on a steady basis, did it? I don't believe." (I
discredit this explanation for the excessive overtime.)
When President Esbin was asked why additional cleanup
employees were not hired on "occasions" when there was
considerable overtime , he testified that "considerable
overtime was definitely not on a regular basis "; that "we
really didn't know how much overtime would be required,
if any, until" 3 or 4 p.m.; and that the Company was using
two 3-man crews , and a 4-man crew would not be as
efficient. To the contrary , the evidence shows that there
was overtime on a regular basis ; the extent of the overtime
shows that the cleanup employees were hours behind, long
before 3 or 4 p.m.; and that the Company was often using
4- and 5-man crews . Including Leadmen Lacker and
Smiarowski , cleanup men-drivers Carter and Smith (who
worked at cleanup about 60 or 70 percent of the time,
according to Esbin), there were 8 to 10 cleanup employees
(for the 2 crews) on 32 of the 40 full workdays between
April 10 and June 14. (There were only 5 cleanup
employees on I day , 6 on I day , and 7 on 6 days.
Undoubtedly on these occasions , trimmer Graue and/or
messenger Laws, for a few hours , helped fill up the crews.)
Thus , by cutting the number of cleanup employees by an
average of about 2 -1/2 employees a day (from 10.9 before
the discharge to 8.375 after the discharge)-apparently in
an effort to prove that the new employees were more
productive-the Company increased its costs for the
cleanup work, by paying for extensive overtime and paying
trimmers to do a substantial part of the cleanup employees'
work, while slowing down production . (Of course, if the
Company had retained its experienced cleanup employees,
except for the disabled Peterson , and had instituted a
number of the changes , the productivity of the old cleanup
crews would have increased. The average number of
trimmers remained virtually the same .) I note that the
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company in its bnef , citing only the number of employees
and the hours worked in the first three pay periods after
the rotating crew "experiment ," contends that the Compa-
ny "was able to literally double the productivity of the
groundcrew," and contends that if the discharged employ-
ees "are reinstated and receive the prevailing laborer's
wages ," the Company "will be once again in a hopelessly
uncompetitive position ." In so contending , the Company
ignores the evidence that Carter and Smith were reinstated
within a week (and therefore omits them from its
calculations), and also completely ignores the excessive
overtime worked regularly , on every full workday from
April 25 through June 14 (after the trimmers undoubtedly
rebelled against doing so much of the cleanup work,
cutting down on their production bonus ). Inasmuch as
President Esbin testified that the Company made more
money on the job after March 31 , and inasmuch as the
smaller number of replacements (because of the overtime
and the transfer of a substantial part of the work to the
trimmers) resulted in the Company paying for more hours
of cleanup work , I reject the Company 's contentions.
h. Asserted union acquiescence or consent
The Company contends in its brief that Teamsters Local
282 virtually consented to the March 31 layoffs, and
delayed filing charges because it believed that the layoffs
were economically motivated.
Local 282 did delay in filing the charges . However, at the
time of the mass discharge , it was offering to cede
jurisdict ion over "all other workmen ," excluding drivers,
"doing tree pruning, tree removing , other landscaping and
similar work" to Laborers Local 731, which represented
such tree-trimming and cleanup employees in the area.
Although most of its employee strength was among the
cleanup employees, Local 282-upon instructions from its
International-was then bargaining for only three or four
drivers (excluding sanitation truckdnvers). When it filed its
first charges against the Company on June 16, it limited the
charges to an alleged refusal to bargain , apparently in the
hope of reaching a collective -bargaining agreement with
the Company . But in the succeeding 3 weeks , the Company
continued its refusal to negotiate further, and Local 282
was informed that the Company had required employees to
report to the Laborers Local 731 hall to sign checkoff cards
and join that union . On July 10 , Local 282 filed amended
charges, alleging discrimination. Not knowing at that time
exactly how many had been discharged , it alleged that
"several employees were fired and one was permanently
laid-off" within a month of their signing Local 282
authorization cards . Under these circumstances, I reject
the Company 's contention that because of the delay Local
282 "obviously did not believe that the Employer was
acting discriminatorily." Local 282 was not seeking to
represent the discharged employees at the time , and did
not know their qualifications.
The testimony concerning conversations between the
Company and Teamsters Local 282 Organizer Bai before
the mass discharge is in great conflict.
Manager Stumer and President Esbin gave conflicting
accounts . According to Stumer, he and Bai "had a little
conversation out in the hallway" when the Company was
advised at the comptroller 's office, early in March , that the
cleanup crew (being paid $4.375 and $4 .20 an hour) would
have to be paid a minimum of $6.95 , plus $1.87 in
supplemental benefits . Stumer testified that he complained
to Bai , "there is no way we can stay in business if we have
to pay this rate to these particular people . . . I got to do
something," to which Bai suggested , "We just signed a
recognition agreement only a couple of days ago . . . try to
hold out for a couple of weeks , because it is just not right
to do anything right now ." Then about a week before the
"layoffs ," according to Stumer , he (and he claims Esbin
also) met Bai at a diner, said "we wanted to try a different
type of system on the ground," and Bai responded, "if
things are really that bad . . . go ahead and do it."
(Emphasis supplied.) Thus, according to Stumer, Bai
suggested early in March to wait a couple of weeks, and 2
or 3 weeks later , Bai said the Company could "go ahead."
On the other hand , President Esbin, who also claimed that
he was present with Stumer and Bai at the diner,
contradicted Stumer 's testimony that Bai said the Compa-
ny could go ahead . According to Esbin , Bai said to hold off
for a while.
In sharp contrast, Organizer Bai testified that Esbin was
not present at the diner meeting . According to Bai , Stumer
insisted on relief from paying the higher rates for
inexperienced people , or he would have to "get rid of these
black bastards because they don't produce"; that Stumer
"got very perturbed ... that I would not make any sort of
deal or offer"; and that Stumer then said , "Well, Tony .. .
It would be worth your while . . . Mickie [Samuel]
Wagner would like you to do something to give us relief
and it would be worth your while , we'll take care of it and
regardless of what the numbers are"-suggesting a bribe.
(In weighing this conflicting testimony , I take into
consideration the undisputed, credited testimony by
Leadman Lacker-who impressed me as being a forthright
and honest witness-that in the May meeting with him,
Smiarowski , and Warner , in the presence of Stumer and
Esbin , Samuel Wagner made the three employees an offer
"of $10,000 for putting [a competitor ] out of business."
Wagner furnished most of the capital when he and Current
Construction formed the joint venture for the tree work.)
I discredit Manager Stumer's claim , contradicted by
President Esbin , that Organizer Bai said they could "go
ahead" in trying a "different type of system on the
ground." (Both Stumer and Esbin impressed me as being
willing to testify whatever might seem plausible in their
defense.) Although I do not doubt that Stumer made or
implied a bribe, as testified by Bai , and although Bai
impressed me as being a more trustworthy witness than
either Stumer or Esbin, some of Bai's testimony was not
persuasive. In particular , I refer to a statement which Bai
added, after giving his version of the hallway meeting with
Stumer in early March. Bai first testified that during the
brief recess , Stumer was quite excited about the assistant
comptroller 's ruling and commented to Bai , "F- him . . .
I will go out of business before I pay this kind of rate," and
then asked Bai what he could do to change the rate. Bai
testified that he said this was a subject for proper
negotiations . However , Bai added that Stumer "told me he
is going to get rid of all these black bastards who he has got
CURRENT CONSTRUCTION CORP.
in the ground crew or anybody that had anything to do
with organizing." I do not believe that this statement was
made, and discredit it. (I note that two of the discharged
employees, August and Sweeney, were white, and that the
Company employed after the mass discharge a number of
black employees, including Sanitation Local 813 members
Carter and Smith, messenger Laws, and trimmer Thomp-
son. I accept as true the Company's vigorous denial "that
racial considerations had anything whatsoever to do with
its actions.")
Not being able to credit all the testimony of either
Stumer or Bai concerning the brief hallway meeting in
early March, I must decide which is more plausible:
Stumer's testimony that Bat merely suggested that the
Company wait a couple of weeks before doing something,
or Bai's testimony that an appropriate rate was a subject
for proper negotiation. In view of Bai's unfamiliarity with
the qualifications of the recently organized cleanup
employees, and the discussion with the assistant comptrol-
ler about an apprenticeship training program if the
employees were not "experienced." I find that Bai did not
state any agreement or acquiescence in the discharge of the
cleanup employees, and discredit Stumer's testimony to the
contrary.
Accordingly, I find that the credited testimony, and the
delay in the filing of the charges, do not support the
Company's argument that Teamsters Local 282 realized
the March 31 "layoffs" were economically motivated and
not discriminatory.
5. Concluding findings
In a continuing effort to avoid paying the prevailing rate,
the Company argued at the comptroller's office, and to
Teamsters Local 282, that the cleanup employees were not
"experienced" and qualified. By the time Local 282 failed a
second time to promise the Company any relief, Local 282
had magnified the Company' s fear of "doubling up" on the
bucket truck, by offering to cede jurisdiction over the
bucket-truck operator to Laborers Local 731, while
proposing to retain jurisdiction over the bucket-truck
driver. It was in these circumstances that the Company
suddenly discharged most of Local 282's supporters (the
cleanup employees), hired members of Local 731 as
replacements , and later, upon reaching an impasse with
Local 282 over the doubling up issue, illegally induced
other Local 282 supporters to join Local 731.
The Company denies that union considerations played
any part in the March 31 layoff or discharge of the cleanup
employees. The General Counsel contends: "The Compa-
ny's intention was to operate as long as they could without
any union, but if they had to have a union, the one thing
they wanted to make absolutely sure of was this union
would not be Local 282."
Having found that the Company had knowledge of, or at
least suspected, that the cleanup employees constituted the
majority of Teamsters Local 282's support, and having
considered all the evidence and the contentions of the
parties, I find that the Company's controlling motivation
for the sudden, mass discharge was its determination to
eliminate Local 282's employee support. In making this
finding, I particularly rely on the following: (a) Manager
739
Stumer advised messenger Sweeney, in early March before
reassigning him, that he would have to join Laborers Local
731; (b) on March 31, the Company suddenly discharged
11 or 12 cleanup employees (all of them except two
leadmen), reinstated only two members of Sanitation Local
813, and hired as replacements only members of Laborers
Local 731; (c) at the time of the discharge, Stumer told
employee Hall that the Company had "union difficulties";
(d) about a week after the discharge, Stumer said he could
not rehire employee August because of "union problems,"
and revealed to employee Frazier that the Company had
decided (or agreed) to recall or rehire only members of
Locals 813 and Local 731; (e) the Company has suggested
no justification for discharging an admittedly "good"
employee, driver Carter, when truckdrivers were necessary
on the job; (f) the Company falsified the payroll records
when reinstating Local 813 members Carter and Smith
within a week, omitting their names for nearly 7 weeks, for
the evident purpose of deception; (g) the Company failed
to rehire any nonmembers of Local 813, despite the fact
that it was operating shorthanded, with excessive daily
overtime; (h) Stumer revealed the Company's motivation
for eliminating Local 282's support by informing the three
Local 282 employee organizers (Lacker, Smiarowski, and
Warner) in May that there was no room for Local 282 and
that Stumer preferred Local 731. to avoid doubling up on
the bucket trucks; (i) Stumer illegally offered inducements
to these three employees if they would abandon Local 282
and Join Local 731; (j) Stumer illegally supported Local
731 by ordering remaining employees , including some
Local 282 supporters, to leave work and go to the Local
731 hall to sign up; and (k) by discharging most of the
Local 282 supporters on March 31, hiring only Local 731
members as replacements, and paying to Local 813 extra
dues and supplemental benefits for only a portion of the
cleanup employees, the Company was able to avoid paying
the $1.87 welfare and pension benefits (although required
by the city) for some of the employees.
In addition, it is clear that the Company was not
interested merely in increasing production and lowering
the cost of the cleanup work. The Company admittedly did
not consider the employees on an individual basis, did not
consult with the leadmen about how to improve the
operation, did not say anything to any of the employees
about their work, and waited until after their discharge to
institute the various changes to increase production. The
company officials at the trial gave conflicting explanations
for the sudden discharge and the 1-week trimmer rotating
system, which I find (in view of the shortage of qualified
trimmers) to have been obviously a subterfuge for
eliminating the cleanup employees as a group , in order to
replace them with members of another union.
The Company's discriminatory motivation is also indi-
cated by its efforts, both at the time and at the trial, to
distort the facts. It not only falsified the payroll records,
omitting the names of the two reinstated drivers who were
working the most overtime-for the obvious purpose of
arguing that the work was being done with fewer
employees-but it attempted at the trial (in part at least by
misrepresentation) to conceal the fact that the replace-
ments (except for one) were inexperienced, that it trans-
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ferred a substantial amount of the cleanup work to the
trimmers, and that it instituted various changes which
increased production.
Now, in its brief, the Company contends that there was a
dramatic improvement in production, in that the work was
being done by half the number of employees. To make
such an argument, the Company cited the payroll records
for only the first three pay periods after it began hiring
replacements (when, as found, much of the cleanup work
was being done by the trimmers), and completely ignores
the falsification of the payroll records, and the excessive
daily overtime which began on April 25. As found, the
Company did reduce the number of cleanup employees by
an average of 2.5 employees a day, but when the excessive
overtime is considered, along with the transfer of some of
the cleanup work to the trimmers, the Company was
actually paying for more hours of cleanup work than
before the number of employees was reduced.
Accordingly, I find that the sudden mass discharge of 11
experienced cleanup employees on March 31 was for the
purpose of discouraging membership in Local 282, and
violated Section 8(a)(3) and (I) of the Act.
CONCLUSIONS OF LAW
1. By discharging cleanup employees Edward Carter
and Marion Smith on March 31, 1972, and by discharging
and failing to rehire cleanup employees Edward August,
Benjamin Blacknall, James Carr, Grady Frazier, Raymond
Hall, Floyd Jones, Richmand Pierre, Herbert Sanders, and
James Sweeney on and since that date, because it knew or
suspected that a majority of the cleanup employees
supported Teamsters Local 282, the Company engaged in
unfair labor practices affecting commerce within the
meaning of Section 8(a)(3) and (1) and Section 2(6) and (7)
of the Act.
2. By discharging employees Arthur Lacker and Robert
Smiarowski on February 22 because of their support of
Local 282, the Company violated Section 8(a)(3) and (1) of
the Act.
3. By threatening to discharge employees for signing
Local 282 cards, and by coercively interrogating employees
about their support of Local 282, the Company violated
Section 8(a)(1) of the Act.
4. By offering and promising employees wage increases
and other benefits to induce them to abandon their
membership in and support of Local 282 and to induce
them to join Laborers Local 731, the Company violated
Section 8(a)(1) of the Act.
5. By promising employees that it would pay their
initiation fees if they would cease their membership in
Local 282 and Join Local 731, the Company violated
Section 8(a)(1) and (2) of the Act.
6. By soliciting employees to join Local 731, and by
directing employees to leave work , to go to the Local 731
hall, and to sign with Local 731, the Company violated
Section 8(a)(1) and (2) of the Act.
7. The Company did not violate Section 8(aX5) of the
Act as alleged in the complaint.
8. The General Counsel failed to prove that the
Company discriminatorily discharged employee Melvin
Peterson, and unlawfully agreed to recognize Local 731.
REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, I find it necessary to order
the Respondent to cease and desist therefrom and to take
certain affirmative action designed to effectuate the
policies of the Act.
The Respondent having discriminatorily discharged 11
employees on March 31, 1972, I find it necessary to order
the Respondent to offer them full reinstatement (except
Carter and Smith who were reinstated within a week), and
give them backpay computed on a quarterly basis plus
interest at 6 percent per annum as prescribed in F. W.
Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962), from date
of discharge to date of reinstatement offer. Although the
Company discriminatorily discharged employees Lacker
and Smiarowski on February 22, they were reinstated upon
settlement of the February 22-28 recognition strike,
without loss of wages as a result of the discharge, and
therefore no reinstatement or backpay remedy is necessary
for them. As a remedy for directing employees on or about
June 23, 1972, to leave work to go to the Laborers Local
731 hall and sign checkoff authorizations for the payroll
deduction of initiation fees, I find it necessary that the
Company be ordered to refund any money deducted for
such initiation fees , plus interest at 6 percent per annum.
Because of the failure of the General Counsel to serve
Local 731 with copies of the formal papers before trial, no
separate remedy of the Section 8(aX2) violations is being
ordered. However, in view of the Respondent's flouting of
the employees' Section 7 rights, I am convinced that there
exists a substantial danger that the Respondent will in the
future commit other violations of the Act. I therefore find
it necessary to order the Respondent to cease and desist
from infringing in any manner upon the employees'
Section 7 rights.
[Recommended Order omitted from publication.]