Dews Construction Corp.

National Labor Relations Board - Board Decisions

Aug 8, 1977

231 N.L.R.B. 182 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dews Construction Corp., a subsidiary of The Aspin
Group, Inc. and Federation of Employees Union
Local 1027 and Arnold Moody
East Star Painting Corp. and Federation of Employees
Union Local 1027. Cases 22-CA-6903, 22-CA-
7114, 22-CA-7175, and 22-CA-7042
August 8, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
On May 12, 1977, Administrative Law Judge
Benjamin K. Blackburn issued the attached Decision
in this proceeding. Thereafter, both Respondent and
General Counsel filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,1 and conclusions of the Administrative Law
Judge only to the extent consistent herewith and to
adopt his recommended Order as modified herein.
Dews Construction Corp. is engaged in the
business of rehabilitating inner city residences in
Newark, New Jersey. Dews subcontracts on a
continuing basis with East Star Painting Corp. for
the painting of those houses. In January 1975,
Ezekial Davis, a sole proprietor who later incorporat-
ed his business into East Star and became its
president, signed his first contract with Dews. At that
time, Elliott Schneider, president of Dews, told Davis
that the job was "nonunion."
The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
The General Counsel excepted to the Administrative Law Judge's
discrediting of employee Arnold Moody's testimony. The Administrative
Law Judge discredited Moody's testimony partly because Moody had
previously withdrawn an earlier charge against Respondent pertaining to
the same events as alleged herein. The Administrative Law Judge inferred
that "[p resumably, the Regional Director concluded that there was
insufflicient evidence to prove MoodN's claim .... " We agree with the
General Counsel that this inference should not have been used as a factor in
discrediting the testimony of Moody. Discrediting a charging party's
testimony for this reason impinges upon the statutory right of individuals to
file (or refile) charges under Sec. 10(b) of the Act and discourages voluntary
dispositions of such charges. Also, see generally rule 408 (Compromise and
OfTers to Compromise) and rule 410 (Withdrawn Plea of Guilty) of the
Federal Rules of Evidence; Rudy Patrick Companre, 204 NLRB 564, fn. 2
231 NLRB No. 37
In early May 1976,2 Local 1027 of the Federation
of Employees Union began handbilling the Dews
project on which East Star was working. On May 12,
East Star employee Norris Holmes and fellow worker
Eddie Harris (East Star's only two regular employ-
ees) attended a union meeting held by Local 1027.
Two days later, Dews' superintendent, Richard
Webb, told Davis that Holmes and Harris had been
at the union meeting, and stated to Davis: "You
better remember how your contract was written."
Davis then sought out Holmes and Harris and asked
them whether they had attended the meeting. They
replied in the affirmative. Davis told them that
Schneider did not appreciate the fact they had gone
to the meeting and said that one of them would have
to be laid off.
On May 17, Davis spoke with Schneider. Immedi-
ately thereafter, Davis told Holmes and Harris that
Schneider had decreed that one of those two must be
laid off. Davis added that he selected Holmes to be
laid off since Harris had more seniority, but that he
would try to find other work for Holmes. Holmes did
not work for Davis on any of Dews' projects
thereafter. However, he did work for Davis on a few
various jobs, including painting the home of Davis'
sister, until July 2, when Holmes refused to work for
Davis any longer.
The Administrative Law Judge concluded that
East Star violated Section 8(a)(3) and (I) of the Act
by Davis' action in transferring Holmes because of
his union activities.3 Moreover, the Administrative
Law Judge found that Dews violated Section 8(a)(3)
and (1) by causing East Star to transfer Holmes for
engaging in union activities.4 The General Counsel,
however, took exception to the conclusion that
Holmes was merely transferred and contends that he
was actually discharged from East Star's employ-
ment. We agree with the General Counsel on this
issue.
(1973). We do, however, adopt his credibility resolution regarding Moody
insofar as it was based on his observation of Moody's demeanor and was
not contrary to the clear preponderance of all of the relevant evidence.
Standard Dry Wall Products, Inc., supra. See also Pet Incorporated, Dairy
Group, 229 NLRB 1241, fn. 2 (1977).
2 All dates hereafter are in 1976.
3 The Administrative Law Judge also found that East Star violated Sec.
8(aH 1) by interrogating its employees regarding their union activities and by
threatening employees with layoff for engaging in union activities.
4 An employer violates the Act when it directs, instructs, or orders
another employer with whom it has business dealings to discharge, layoff,
transfer, or otherwise affects the working conditions of the latter's
employees because of the union activities of said employees. See Georgia-
Pacific Corporation, 221 NLRB 982, 986 (1975); Fabnc Services, Inc., 190
NLRB 540, 541-543 (1971). See also Ref-Chem Company, 158 NLRB 488,
492-493 (1968). Cf. Edward R. Carey, et al., Trustees of the United Mine
Workers of America Welfare and Retirement Fund, 201 NLRB 368, 369 370
(1973); Local No. 447, United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the United States and Canada, AFL-
CIO (Malbaff Landscape ConstructionJ, 172 NLRB 128 (1968).
182
DEWS CONSTRUCTION CORP.
Prior to May 17, the day on which Davis told
Holmes that he was being laid off, Holmes was listed
on East Star's payroll sheet and was paid an hourly
wage by the Company, which also deducted his
social security and Federal withholding taxes. After
May 17, Holmes was no longer listed on East Star's
payroll ledger, was paid on a per-job basis, and had
no taxes deducted by East Star. Moreover, Davis
himself admitted that, after May 17, Holmes made
"bid[s] for work." Credited testimony also indicates
that Davis and Holmes agreed on specific prices for
each job. On July 2, Holmes finally told Davis that
he was not paying him enough money for his work
and stated that he would try to get his own jobs from
then on. In these circumstances, we find that
Holmes' status with respect to East Star clearly
changed on May 17 from an employee to an
independent contractor. See, e.g., Marble Polishers
Local Union No. 16, AFL-CIO (Kendall Construction
Company), 191 NLRB 120, 121 (1970). Consequently,
East Star effectively discharged Holmes from its
employment on May 17 and thereafter engaged his
services merely as a self-employed painter until July
2.
The Administrative Law Judge found that when
Holmes told Davis that he would thereafter seek his
own work, Holmes voluntarily terminated his em-
ployment with East Star. Consequently, the remedy
imposed by the Administrative Law Judge did not
require East Star to reinstate Holmes and also
limited Holmes' backpay award to his loss of
earnings between May 17 and July 2. However, in
accordance with our conclusion that Holmes was
discharged rather than transferred on May 17, we
find that on July 2 Holmes merely withdrew his
services from East Star as an independent contract-
ing painter. Therefore, Holmes is entitled to full
reinstatement and backpay after July 2 as well, as set
forth below in the amended remedy.
AMENDED REMEDY
Having found that Respondent East Star Painting
Corp. discharged Norris Holmes on May 17, 1976, in
violation of Section 8(a)(3) and (1) of the Act, we
shall order that East Star offer immediate and full
reinstatement to Norris Holmes, if he has not been
previously reinstated, or, if such job no longer exists,
to a substantially equivalent position, without preju-
dice to his seniority or other rights and privileges.
Having also found that Respondent Dews Construc-
tion Corp., a subsidiary of The Aspin Group, Inc.,
caused Respondent East Star Painting Corp. to
discharge Norris Holmes on May 17, 1976, we shall
order both Dews and East Star, jointly and severally,
to make him whole for any loss of earnings he has
suffered as a result of such discharge by payment to
him of a sum equal to the amount he normally would
have earned as wages from the date of his discharge
to the date of Respondent East Star's offer of
reinstatement, less net earnings, in accordance with
the formula set forth in F. W. Woolworth Company,
90 NLRB 289 (1950), and Isis Plumbing & Heating
Co., 138 NLRB 716 (1962).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified herein, and hereby orders that the Respon-
dents, Dews Construction Corp., a subsidiary of The
Aspin Group, Inc., and East Star Painting Corp.,
Newark, New Jersey, their officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order, as modified below:
I. In paragraph A, l(b), substitute the word
"discharge" for the word "transfer."
2. Substitute the following for paragraph A, 2(a):
"(a) Jointly and severally with East Star Painting
Corp., make Norris Holmes whole for any loss of
earnings he has suffered as a result of his unlawful
discharge by East Star on May 17, 1976, in the
manner set forth in the section of the Board's
Decision entitled'Amended Remedy.' "
3. In paragraph B, I(c), substitute the word
"Discharging" for the word "Transferring."
4. Substitute the following for paragraph B, 2(a):
"(a) Offer to Norris Holmes immediate and full
reinstatement, if he has not been previously reinstat-
ed, or, if such job no longer exists, to a substantially
equivalent position, without prejudice to his seniority
or other rights and privileges, and, jointly and
severally with Dews Construction Corp., a subsidiary
of The Aspin Group, Inc., make Norris Holmes
whole for any loss of earnings he has suffered as a
result of his unlawful discharge by East Star on May
17, 1976, in the manner set forth in the section of the
Board's Decision entitled 'Amended Remedy.' "
5. Substitute the attached notices for those of the
Administrative Law Judge.
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the opportunity
to present their evidence, the National Labor
Relations Board has found that we committed
183
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certain unfair labor practices, and has ordered us to
post this notice. We intend to abide by the following:
Section 7 of the National Labor Relations Act
gives all employees these rights:
To organize themselves
To form, join, or help unions
To bargain collectively through a repre-
sentative of their own choosing
To act together for collective bargaining
or other mutual aid or protection
To refuse to do any or all these things.
WE WILL NOT condition offers to hire you on
repudiation of your rights under the Act.
WE WILL NOT cause other employers to dis-
charge employees from our projects for engaging
in union activities.
WE WILL NOT refuse to hire employees because
unfair labor practice charges have been filed on
their behalf under the Act.
WE WILL NOT in any other manner interfere
with you or attempt to restrain or coerce you in
the exercise of the rights guaranteed by Section 7
of the Act.
WE WIL.L, jointly and severally with East Star
Painting Corp., make Norris Holmes whole for
any earnings he lost, plus interest, as a result of
his discharge by East Star, which we caused, from
one of our projects on May 17, 1976.
WE WILL inform East Star Painting Corp., in
writing, with a copy to Norris Holmes, that we
have no objection to East Star hiring Norris
Holmes to work on our projects.
WE WILL offer H. C. Brown, Jr., immediate and
full reinstatement to the job for which we would
have hired him on April 19, 1976, but for our
discrimination against him, or, if that job no
longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or other
rights and privileges, and WE WILL make him
whole for any earnings he lost, plus interest, as a
result of our refusal to hire him on that date.
All our employees are free to join Federation of
Employees Union Local 1027, or any other labor
organization, if they choose.
DEWS CONSTRUCTION
CORP., A SUBSIDIARY OF
THE ASPIN GROUP, INC.
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the opportunity
to present their evidence, the National Labor
Relations Board has found that we committed
certain unfair labor practices and has ordered us to
post this notice. We intend to abide by the following:
Section 7 of the National Labor Relations Act
gives all employees these rights:
To organize themselves
To form, join, or help unions
To bargain collectively through a repre-
sentative of their own choosing
To act together for collective bargaining
or other mutual aid or protection
To refuse to do any or all of these things.
WE WILL NOT interrogate you about your union
activities.
WE WILL NOT threaten you with layoff for
engaging in union activities.
WE WILL NOT discharge you for engaging in
union activities.
WE WILL NOT in any other manner interfere
with you or attempt to restrain or coerce you in
the exercise of the above rights.
WE WILL offer Norris Holmes immediate and
full reinstatement to the job from which we
discharged him, or, if such job no longer exists, to
a substantially equivalent job, without prejudice
to his seniority or other rights and privileges; and
WE WILL, jointly and severally with Dews Con-
struction Corp., a subsidiary of The Aspin Group,
Inc., make Norris Holmes whole for any earnings
he lost, plus interest, as a result of his discharge
from a Dews project on May 17, 1976.
All our employees are free to join Federation of
Employees Union Local 1027, or any other labor
organization, if they choose.
EAST STAR PAINTING
CORP.
184
DEWS CONSTRUCTION CORP.
II. THE UNFAIR LABOR PRACTICES
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN, Administrative Law Judge:
The charge in Case 22-CA-6903 was filed on April 6,
1976,1 amended on April 15, and amended again on June
16. A complaint was issued on August 13. The complaint in
Case 22-CA-7042 was filed on June 28; in Case 22-CA-
7114, on August 6; and in Case 22-CA-7175, on Septem-
ber 10. All four cases were consolidated for hearing and an
amended complaint was issued on September 27. The
hearing was held in Newark, New Jersey, on October 26
and 27, November 30, and December 2. The issues litigated
grew out of the termination of the employment of Arnold
Moody, H.C. Brown, Jr., and Norris Holmes. For the
reasons set forth below, I find that, while Respondent
Dews did not violate Section 8(a)(1) of the National Labor
Relations Act, as amended, when it discharged Moody on
March 22 and laid off Brown on March 23, it did violate
Section 8(a)(4) and (1) when it subsequently failed to hire
Brown. I also find that both Dews and Respondent East
Star violated Section 8(a)(3) and (1) when, on May 17, East
Star transferred Holmes from a Dews project at Dews'
behest.
Upon the entire record, including especially my observa-
tion of the demeanor of the witnesses, and after due
consideration of briefs, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Dews, a New Jersey corporation, is engaged in the
business of rehabilitating inner city houses under programs
sponsored and funded by local governments in conjunction
with the Federal Government. During calendar 1975 it
purchased from suppliers outside the State of New Jersey
building and construction materials valued in excess of
$50,000 which were shipped directly to its jobsites in New
Jersey.
Prior to 1976 Ezekiel Davis engaged in the painting
business in Newark as a sole proprietor under the name of
E. Davis & Sons. In January 1976 he incorporated in New
Jersey under the name of East Star Painting Corp.,
assigning nominal portions of the stock to his wife and
children. In the year just prior to issuance of the amended
complaint herein, that is, between September 27, 1975, and
September 26, 1976, Davis provided painting services to
Dews valued in excess of $50,000, part while operating as
E. Davis & Sons and part while operating as East Star.
Local 1027 admits employees to membership, represents
employees in collective bargaining with their employers,
and has entered into labor agreements with employers in
New Jersey, New York, and Maryland.
A. The Case Against Dews
1. Background
Some 95 percent of the work which Dews does is under
statutes administered by the Department of Housing and
Urban Development and, as such, is subject to the
provisions of the Davis-Bacon Act. In the summer of 1975
Arnold Moody "dropped a dime on [his] boss," Dews, by
placing an anonymous telephone call to the Newark office
of the Wage and Hour Division of the Department of
Labor's Employment Standards Administration. He re-
ported that Dews was not living up to its obligations under
Davis-Bacon. An investigation ensued in the course of
which a number of Dews' employees received and filled out
questionnaires and/or were interviewed by and gave
statements to the Wage and Hour investigator. The
questionnaires were circulated in late February 1976.
Moody, for example, gave statements on February 9 and
March 15 and filled out a questionnaire on February 23. H.
C. Brown, Jr., filled out a questionnaire on February 23
and gave statements on March 4 and 31 and April 14.
Dews was in violation of Davis-Bacon in one respect.
Instead of paying its employees time and a half for
Saturday work, it was paying them a flat sum which it
recorded as reimbursed travel rather than wages. Dews did
not dispute the information brought to its attention by the
Wage and Hour investigator. Before the investigation was
complete, it computed the amount of money owed to each
employee and gave it to him. Approximately $25,000
(before taxes) was disbursed to approximately 65 employ-
ees on March 10. The General Counsel ascribes Dews'
motive to its resentment of the protected concerted
activities of its employees in the Wage and Hour investiga-
tion in contending Moody's discharge and Brown's layoff
violated Section 8(a)(1) of the Act.
2. Arnold Moody
a. Credibility
Questions of credibility loom large in every phase of this
proceeding, none more so than in that involving Arnold
Moody. My finding that he instigated the Wage and Hour
investigation with an anonymous telephone call, a fact
which, if known to Dews on March 22, would make
Moody's case a strong one, is based on his uncorroborated
testimony concerning that particular issue. It does not
follow from this that I found him to be a credible witness.
Quite the contrary. On the other hand, it does not follow
from the fact I credit Dews' witnesses over Moody that I
found the latter to be highly credible either. In the phases
involving H. C. Brown, Jr., and Norris Holmes I have
relied on demeanor at those points below where I have
indicated important credibility conflicts are found in the
record. In Moody's case, there is evidence in the record
which goes beyond demeanor.
Dates are 1976 unless otherwise indicated.
DECISION
185
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the final analysis, the legality of Moody's discharge
turns on whether the reason advanced by Dews-Moody's
absence without permission from March 11 to 22-was its
real reason for discharging him or a pretext masking a
motive growing out of his role in the Wage and Hour
investigation. Moody first filed a charge in Case 22-CA-
6984 on May 20, then withdrew it. The affidavit which he
gave to a Board agent at the time he filed that charge
recounts his position and duties with Dews; his role in the
Wage and Hour investigation; an alleged threat by Elliott
Schneider, Dews' president, to discharge him because of
what he had done; and the fact that he had been
discharged. There is no mention of his admitted absence
from March 11 to 22; the injury he claims to have
sustained on the job on March I I, which is his excuse for
being absent; and the events which he claims prove that
Schneider condoned his absence. The record does not
indicate why Moody withdrew his first charge. Presumably
the Regional Director concluded there was insufficient
evidence to prove Moody's claim that he had been
discharged for engaging in a protected concerted activity.
Only when Moody refiled in Case 22-CA-7175 on
September 10 did he supply the elements required to make
out a case. I find the discrepancy between the story he told
the Regional Office in May and the story he told in
September impossible to swallow. For that reason, I have
discredited him with respect to all other issues where his
testimony is not corroborated, especially in those crucial
areas on which his case turns.
The first of these areas, as already indicated, relates to
the facts surrounding Moody's absence. Two others relate
to the question of company knowledge of his role in the
Wage and Hour investigation. The phrase "dropped a dime
on my employer" is from Moody's testimony. He said
those were the words he used about 2 weeks after calling
the Wage and Hour Division when he told Joseph Young,
Dews' foreman, what he had done. Young denied the
conversation. Moody also testified to a conversation with
Schneider at the time in late February when Dews became
aware its employees had received Government question-
naires. In Moody's version, Schneider said he knew Moody
was the one who had turned him in to the Department of
Labor and threatened to "bury" him. Schneider denied
every saying any such thing. He claimed he only learned of
Moody's role in the investigation when he heard the phrase
"dropped a dime on my boss" at the hearing and had to
have it explained to him. Since I discredit Moody and
credit Young and Schneider to find that these conversa-
tions never took place, there is no mention of them in the
section which follows. Since Moody's testimony of his
alleged conversation with Schneider underlies two allega-
tions of independent 8(a)(1) violations in the amended
complaint, I find Dews, in the person of Schneider, did not
warn "its employees that they would be discharged because
they filed a complaint with Wage and Hour" and did not
inform "its employees that it had kept under surveillance
concerted activities its employees had engaged in."
b. Facts
Arnold Moody first went to work for Dews in July 1974
as a laborer. He was shot in the knee in August 1974 under
circumstances not set forth in the record. He returned to
work sometime thereafter. His knee caused him to miss
work from time to time, the frequency apparently dropping
as time went by. (There is nothing in the record on which
to base any precise findings as to when Moody's bad leg
caused him to miss work prior to March 1976.) In October
1975 Richard Webb, Dews' superintendent, discharged
Moody for failing to show up for work on a day when he
had to go to court. However, Moody immediately protest-
ed to Elliott Schneider, Dews' president, who reinstated
him. After he was wounded, Moody did not perform the
full duties of a laborer on Dews' projects. His job evolved
into that of a "gopher" for the other workmen. He kept the
keys to the storeroom, carried tools and materials to the
men as they were needed, and performed such other light
duties as were commensurate with his physical condition.
At the time of his discharge, Moody was living several
blocks from the project on which he was working. Because
there was an infant in the house (his child by the woman
with whom he was living), he kept his two large vicious
dogs at the project rather than at home. This arrangement
was mutually advantageous to Dews because the dogs were
permitted to roam free at night in the house under
reconstruction as a security measure. One of Moody's
duties was to open up the project in the morning, at which
time he penned up the dogs, and close it up at night, at
which time he released them.
When Moody left work at the end of the day on
Thursday, March 11, he did not tell Webb he claimed to
have wrenched his bad knee during the day. Neither did he
tell Webb he would not be working for a while because of
his leg. He did not report for work again until the morning
of Monday, March 22. In the interim, he walked to and
from the project each morning to pen up his dogs and to
and from the project each evening to release them.
Schneider went to Moody's home on one occasion to pick
up the keys to the storeroom on the project. On that
occasion Moody did not tell Schneider he was not working
because of his leg. Moody did not seek medical attention
between March I and 22.
Schneider ordered that Moody not be given his Friday,
March 19, paycheck until Moody had spoken to him.
Webb failed to carry out Schneider's order. When Moody
sent the woman with whom he was living to the jobsite to
pick up his check on March 19, Webb told her to tell
Moody he could not have it until he came to pick it up
himself. Moody went to thejobsite himself. Webb gave him
his check. Moody did not say he was off because he had
hurt himself or that he planned to return to work on
Monday. Thereafter, Schneider concurred in Webb's
decision to discharge Moody for being off without
permission.
Moody went to work on the morning of Monday, March
22. Webb discharged him. Webb told Moody he had no
work for him because he had replaced him.
c. Analysis and conclusions
Assuming, without finding, that Moody did, in fact,
strain his bad knee on March 11, it is obvious he did not
injure himself so badly that he was incapacitated. He
managed to finish out the day. He walked to and from the
186
DEWS CONSTRUCTION CORP.
project numerous times between March I 11 and 22. He did
not need medical help. Given the light nature of his duties
in any event, there can be no doubt that he could have
worked on Friday, March 12, and all the following week if
he had wanted to.
The question posed in this phase of this proceeding is
whether Schneider and Webb had only Moody's prolonged
absence in mind when they decided to discharge him or
whether, but for the Wage and Hour investigation which
had recently cost Dews $25,000, they would have over-
looked it. If the record contained credible evidence on
which I could base a finding Schneider knew Moody had
instigated the investigation, I would not hesitate to find in
the General Counsel's favor. This would be especially true
if the record also contained credible evidence on which I
could base a finding Schneider had threatened to discharge
Moody for his role. Moody had not been discharged on
prior occasions when his bad leg caused him to miss work.
On an occasion when Webb had discharged Moody for an
unauthorized absence, Schneider had excused Moody's
transgression. However, Schneider was not aware, as of
March 22, Moody was the author of his Wage and Hour
trouble. Schneider did not threaten to discharge Moody.
Therefore, the scale tips in Dews' favor, causing me to fimd
that the General Counsel has not proved by a preponder-
ance of the evidence on the record considered as a whole
that Dews discharged Arnold Moody on March 22, 1976,
for engaging in protected concerted activities.
3. H. C. Brown, Jr.
a. Facts
Sometime between February 23, the day he filled out a
Wage and Hour questionnaire, and March 4, the day he
gave his first statement to the investigator, H. C. Brown,
Jr., another laborer, talked to Elliott Schneider, Dews'
president, and Howard Perlman, Dews' vice president and
controller, about the investigation. Schneider asked Brown
what Wage and Hour wanted to know. Brown said it
wanted to know how much he was paid and whether he
received overtime. He said he had reported Dews did not
pay overtime. Schneider said he should not have told Wage
and Hour that. Brown replied, "Why not? You never paid
me overtime." 2
Brown worked for Dews as a laborer from March 10,
1975, until March 23, 1976. His principal task was
operating a jackhammer. On the latter date he was one of
I I employees laid off for economic reasons. Brown asked
Joseph Young, the foreman, why he was being laid off.
Young said he did not know. Brown sought out Richard
Webb, the superintendent. Webb said it was because the
work was slow. Brown protested that a new man had been
hired just a few days before. Webb said Brown would have
to see Schneider about that. Brown sought out Schneider.
2 My findings as to this conversation, like those as to the various
conversations which took place when Brown sought reemployment, are
based on Brown's credited testimony. Here, Schneider's version differs only
in that he denies saying Brown should not have told Wage and Hour he did
not pay overtime.
:1 Schneider's version of the sequence of events that begins at this point is
that he did talk to Brown on April 14 and offered him a job on an upcoming
project but that Brown never showed up for work. He denied the Apnl 19
conversation ever took place.
Schneider told him he had been selected for layoff because
he was operating the jackhammer too slowly.
The original charge in Case 22-CA-6903 was filed on
April 6 by Anthony Bryant, a business agent for Local
1027. It named Brown as a discriminatee. Shortly after,
Brown's cousin told him Schneider wanted to see him.
Brown went to a Dews' jobsite on April 14 and talked to
Schneider. 3 Schneider asked Brown if Brown had filed
charges against him at the Labor Board. Brown told him
no. Schneider said that was beside the point, he had been
intending to call Brown back to work in any event. First,
however, Schneider said, he wanted Brown to give him a
statement saying he would drop all charges against Dews.
Brown said he had not filed any charges, therefore, he was
not going to sign a paper saying he would drop them.
Schneider said that was up to Brown. He told Brown to
report the next morning if he wanted a job.
When Brown returned the next morning, he found only
Webb at the jobsite. Webb told him they were not going to
start work at that site right away. Brown asked where he
could find Schneider. Webb sent Brown to another site.
There, when Brown protested that Schneider had told him
to report for work that day, Schneider also told him the
project was not yet ready to start. He told Brown to come
back the following week.
Brown went back to the first jobsite the following
Monday morning, April 19. The project was still not ready
to start. Brown again sought out Schneider at the second
site. Brown asked Schneider what he was going to do. He
pointed out that Schneider had made him come back three
times and asked when Schneider was going to put him back
to work. Schneider said, "You already cost me about
$2,000 for lawyers. 4 Now, would it make any sense for me
to hire you back?"
Brown said, "Well, you told me to come back to work,
but, like I told you, I'm not signing no papers or nothing."
Schneider did not rehire Brown.
b. Analysis and conclusions
The allegation of the complaint that Brown was laid off
on March 23 in violation of Section 8(aXl) of the Act is
predicated on a theory that Brown was selected because he
had given Wage and Hour derogatory information about
Dews. To that end, the General Counsel sought to establish
that Schneider's explanation to Brown for letting him go
was a pretext. The evidence on which he relies consists
mainly of Brown's assertions he was a good jackhammer
operator and his work had been generally acceptable.
When weighed against other undisputed facts in the record,
it is not persuasive. Lack of work led to the layoff of 10
others on March 23. Some of them had also cooperated
with the Wage and Hour investigator. While there is no
evidence of what they told the investigator, there is no
reason to suspect they did not tell the truth, the same as
4 In resolving credibility between Brown and Schneider. I attach no
significance to the fact Dews' attorney notified the Regional Office he was
representing Dews in Case 22-CA-6903 on April 23. 1 also attach no
significance to the fact James Kyle, another laborer who was added as a
discriminatee to the charge in Case 22-CA-6903 when it was first amended
on April 15, was rehired by Dews and subsequently informed the Regional
Office he no longer desired to participate in the case.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brown. There is nothing to indicate Schneider blamed
Brown because the investigation had revealed the truth
about his operations and cost Dews $25,000. Once again,
the scale tips in Dews' favor, causing me to find the
General Counsel has not proved by a preponderance of the
evidence on the record considered as a whole that Dews
laid off H. C. Brown, Jr., on March 23, 1976, for engaging
in protected concerted activities. Since Schneider's remark
to Brown that he should not have told Wage and Hour he
did not get overtime was not coercive, given the nature of
the conversation in which it was made, I also find
Respondent did not commit an independent 8(a)(1)
violation by interrogating its employees concerning their
"concerted and protected activity; namely," their partici-
pation in the Wage and Hour investigation.
The allegations of the complaint which grow out of the
April events are another matter. There, Brown's credited
testimony as to his dealings with Schneider in April clearly
proves Schneider tried to entice Brown into repudiating the
Labor Board case in which he had become involved,
promising to rehire Browns if he did so. When Brown
failed to do what Schneider wanted him to do, Schneider
reneged on his promise. I find, therefore, Dews violated
Section 8(a)(4) and (1) of the Act by refusing to hire H. C.
Brown, Jr., on April 19, 1976, because an unfair labor
practice charge had been filed on his behalf under the Act.
I also find Respondent committed an independent 8(aXl)
violation of the Act when Schneider coerced Brown on
April 14 by conditioning an offer to hire him on a
repudiation of his rights under the Act.
B. The Case Against Dews and East Star
i. Facts
In January 1975, when Ezekiel Davis signed his first
contract with Dews, Elliott Schneider, Dews' president,
told him the job was nonunion. Davis agreed to take the
contract on that basis even though he is himself a member
in good standing of the Brotherhood of Painters, Decora-
tors and Paper Hangers of America, AFL-CIO, after
getting the approval of his business agent. (Davis incorpo-
rated his business under the East Star name in January
1976 so that he could work for the corporation as an
employee and thus retain his membership in the Painters
Union.)
In May 1976, Local 1027 began handbilling the Dews
project on which Davis was working. Davis told Schneider
that Local 1027 was trying to organize his employees.
Schneider told Davis to run his own business.
Davis was working with two employees at that time,
Eddie Harris and Norris Holmes. Harris was also a
* The complaint characterizes what happened to Brown on April 19 as a
discharge. It is undisputed that Dews hires at the gate only and has a high
turnover of employees. There is no basis for a finding that the March 23
layoff was anything other than permanent or that any of the I I men let go
had any expectation of recall. Therefore, Brown was not an employee of
Dews on April 19 and not susceptible to discharge. However, Schneider
could, and did, discriminate against him at that time by refusing to hire him.
6 This finding, crucial to the question of Dews' liability for Holmes'
transfer, is based on Davis' testimony. I do not credit his assertion that
Webb was only joking. Webb initially denied the conversation, then said he
might have made such a remark in jest, and finally fell back to a "don't
remember" position.
member of the Painters Union. Holmes was not. He joined
Local 1027 sometime prior to Wednesday, May 12. That
evening Harris and Holmes attended a meeting held by
Local 1027. On Friday, Richard Webb, Dews' superinten-
dent, told Davis that Harris and Holmes had been at the
meeting. Webb said, "You better remember how your
contract was written."6
Davis went to Harris and Holmes. He asked them if they
had attended the meeting. They said yes. Davis said his
boss, Schneider, did not like the fact that they had gone to
the meeting. He said one of them would have to be laid off.
On Monday morning, May 17, Davis called Harris and
Holmes down from the scaffold on which they were
working to talk to Schneider. Schneider refused to talk to
the men. Instead, he took Davis out of earshot and talked
to him.7 When that conversation ended, Davis told Harris
and Holmes that Schneider had decreed one of them must
be laid off.8 Davis added that he had selected Holmes
(Harris had worked for Davis longer than Holmes) but that
he would try to find other work for Holmes. Holmes did
not work for Davis on any Dews projects thereafter.
Davis put Holmes to work painting Davis' sister's house
the following week. Holmes worked intermittently for
Davis on various jobs until July 2, when he quit. Davis
reimbursed Holmes for each of these periods of employ-
ment on a flat fee basis rather than the hourly basis utilized
when Holmes worked on Dews projects.
2. Analysis and conclusions
The complaint alleges Dews caused East Star to lay off
Norris Holmes. Davis takes the position he did not lay off
Holmes but merely transferred him to another job. In a
more highly structured company than East Star the
distinction might be a valid one. Here it is not. Davis does
not formally lay off employees and then formally recall
them any more than Dews does. It is clear Davis did not
intend permanently to end Holmes' employment relation-
ship with East Star on May 17; thus, what happened to
Holmes at that time cannot be characterized as a
discharge. Whether each of the periods between the various
jobs Holmes worked on after May 17 and before July 2 is
characterized as layoff and recall or as hiatuses between
jobs to which Davis transferred Holmes in sequence, the
result is the same. Davis interrupted Holmes' employment
on May 17 and thereby reduced his earnings between that
date and the day when Holmes decided to end his
employment relationship with East Star because of
Holmes' union activities. I find, therefore, that East Star
violated Section 8(a)(3) and (1) of the Act on May 17, 1976,
by transferring Norris Holmes. I also find it committed
independent 8(a)(1) violations on May 14, 1976, when
7 Both Davis and Schneider denied Schneider ordered Davis to get
Holmes off the Dews project. While the record is unclear, Davis' version of
this conversation is apparently that Schneider took the position he could not
talk to Davis about the threat posed to East Star by Local 1027's activities.
8 The finding that Davis said Schneider ordered one of the men laid off is
based on Holmes' credited testimony. Davis admitted he took Holmes off
Dews projects because of his union activity but claimed all the blame for
himself. In light of his economic dependence on Dews and Schneider, it was
an understandable position for Davis to take.
188
DEWS CONSTRUCTION CORP.
Davis interrogated employees about their union activities
and threatened them with layoff.
The only real issue in this phase of this proceeding is
whether Dews caused Davis to transfer Holmes. It
obviously did. The fact Davis only was permitted to work
for Dews on a nonunion basis coupled with Webb's
reminder to Davis of that fact when Local 1027 began
organizing activities at a Dews project add up to an
irrefutable case. Only an admission by either Davis or
Schneider that Schneider expressly ordered Davis to get rid
of Holmes could make it any stronger. I find, therefore,
that Dews violated Section 8(aX 3) and (1) of the Act by
causing East Star to transfer Norris Holmes on May 17,
1976, for engaging in union activities.
Upon the foregoing findings of fact, and upon the entire
record in this proceeding, I make the following:
CONCLUSIONS OF LAW
1. Dews Construction Corp., a subsidiary of The Aspin
Group, Inc., and East Star Painting Corp. are employers
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Federation of Employees Union Local 1027 is a
labor organization within the meaning of Section 2(5) of
the Act.
3. By conditioning an offer to hire an employee on a
repudiation of his rights under the Act, Respondent Dews
has violated Section 8 (aXl) of the Act.
4. By causing Respondent East Star to transfer Norris
Holmes from a Dews project on May 17, 1976, for
engaging in union activities, Respondent Dews has violated
Section 8(a)(3) and (1) of the Act.
5. By refusing to hire H. C. Brown, Jr., on April 19,
1976, because an unfair labor practice charge had been
filed on his behalf under the Act, Respondent Dews has
violated Section 8(a)(4) and (1) of the Act.
6. By interrogating employees about their union activi-
ties and by threatening them with layoff for engaging in
union activities, Respondent East Star has violated Section
8(a)(1) of the Act.
7. By transferring Norris Holmes on May 17, 1976, for
engaging in union activities, Respondent East Star has
violated Section 8(a)(3) and (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
9. The allegations of the complaint that Respondent
Dews violated Section 8(a)() of the Act by warning its
employees they would be discharged for filing a Wage and
Hour complaint, by informing its employees it had kept
their protected concerted activities under surveillance, by
interrogating its employees about their protected concerted
activities, by discharging Arnold Moody on March 22,
1976, for engaging in protected concerted activities, and by
laying off H. C. Brown, Jr., on March 23, 1976, for
engaging in protected concerted activities have not been
sustained.
9 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions. and recommended Order herein shall, as provided in Sec.
THE REMEDY
In addition to the usual cease-and-desist order and
notice running to each Respondent, an order requiring
Respondent Dews to appoint H. C. Brown, Jr., to the
position he would occupy if it had hired him on April 19,
1976, and make him whole is necessary to effectuate the
policies of the Act. In the case of Norris Holmes, an order
requiring Respondent East Star to reinstate him is not
required since he voluntarily terminated his employment
with East Star on July 2, 1976. However, it is necessary that
he be made whole for the earnings he lost between May 17
and July 2, 1976. That sum, for which East Star and Dews
are jointly and severally liable, is the amount Holmes
would have earned in hourly wages and fringe benefits as
an employee of East Star on Dews projects, less the $800
East Star paid to Holmes for work on otherjobs during this
period. In both Brown's and Holmes' cases, backpay will
be 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). Finally, to effectuate the policies of the
Act it is necessary that Dews be required to notify East
Star, in writing, with a copy to Holmes, that it has no
objection to East Star hiring Holmes to work on Dews
projects.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record in this proceed-
ing, and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
ORDER 9
A. Dews Construction Corp., a subsidiary of The Aspin
Group, Inc., Newark, New Jersey, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Conditioning offers to hire employees on repudiation
of their rights under the Act.
(b) Causing other employers to transfer employees from
their projects for engaging in union activities.
(c) Refusing to hire employees because unfair labor
practice charges have been filed on their behalf under the
Act.
(d) In any other manner interfering with or attempting to
restrain or coerce employees in the exercise of rights
guaranteed in Section 7 of the Act.
2. Take the following action necessary to effectuate the
policies of the Act:
(a) Jointly and severally with East Star Painting Corp.,
make Norris Holmes whole for any earnings he lost, plus
interest, as a result of his transfer by East Star from a Dews
project on May 17, 1976.
(b) Inform East Star Painting Corp., in writing, with a
copy to Norris Holmes, that it has no objection to East Star
hiring Holmes to work on its projects.
(c) Offer H. C. Brown, Jr., immediate and full appoint-
ment to the job for which it would have hired him on April
19, 1976, but for its discrimination against him or, if that
102.48 of the Rules and Regulations., be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
189
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
job no longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights or
privileges, and make him whole for any earnings he lost,
plus interest, as a result of its refusal to hire him on that
date.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this recommended Order.
(e) Post at all its jobsites copies of the attached notice
marked "Appendix A." ' 0 Copies of said notice, on forms
provided by the Regional Director for Region 22, after
being duly signed by Respondent Dews' authorized
representative, shall be posted by Respondent Dews
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent Dews to insure that said notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 22, in
writing, within 20 days from the date of this Order, what
steps Respondent Dews has taken to comply herewith.
B. East Star Painting Corp., Newark, New Jersey, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees about their union activities.
(b) Threatening employees with layoff for engaging in
union activities.
(c) Transferring employees for engaging in union
activities.
(d) In any other manner interfering with or attempting to
restrain or coerce employees in the exercise of rights
guaranteed in Section 7 of the Act.
"I In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
2. Take the following action necessary to effectuate the
policies of the Act:
(a) Jointly and severally with Dews Construction Corp.,
a subsidiary of The Aspin Group, Inc., make Norris
Holmes whole for any earnings he lost, plus interest, as a
result of his transfer from a Dews project on May 17, 1976.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this recommended Order.
(c) Post at all its jobsites copies of the attached notice
marked "Appendix B." I Copies of said notice, on forms
provided by the Regional Director for Region 22, after
being duly signed by Respondent East Star's authorized
representative, shall be posted by Respondent East Star
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent East Star to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 22, in
writing, within 20 days from the date of this Order, what
steps Respondent East Star has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges Respondent Dews violated Section
8(a)(1) of the Act by warning its employees they would be
discharged for filing a Wage and Hour complaint, by
informing its employees it had kept their protected
concerted activities under surveillance, by interrogating its
employees about their protected concerted activities, by
discharging Arnold Moody on March 22, 1976, for
engaging in protected concerted activities, and by laying
off H. C. Brown, Jr., on March 23, 1976, for engaging in
protected concerted activities.
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
II See fn. IO, supra.
190