E. L. Wagner Co.

National Labor Relations Board - Board Decisions

Apr 18, 1991

302 N.L.R.B. 601 (N.L.R.B. 1991)

601
302 NLRB No. 102
E. L. WAGNER CO.
1 The parties have excepted to some of the judge’s credibility findings. The
Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
2 The General Counsel excepts to the judge’s recommendation that interest
on this backpay award be computed in accordance with Flordia Steel Corp.,
231 NLRB 651 (1977), and New Horizons for the Retarded, 283 NLRB 1173
(1987). We find merit to this exception.
We shall modify the supplemental order to require the Respondent to pay
additional amounts on the specified fund contributions in accordance with the
procedure set forth in Merryweather Optical Co., 240 NLRB 1213, 1216 fn.
7 (1979).
1 Unless indicated otherwise, all dates referred to relate to the year 1987.
2 Annuity fund payments were not required until May 4, so they are due
only for the period May 4 through 31.
E. L. Wagner Company, Inc. and Local Union No.
146, Laborers International Union of North
America, AFL–CIO. Case 39–CA–3510
April 18, 1991
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On August 3, 1990, Administrative Law Judge Joel
P. Biblowitz issued the attached supplemental decision.
The General Counsel filed exceptions and a brief, and
the Respondent filed exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the supplemental decision
and the record in light of the exceptions and brief and
has decided to affirm the judge’s rulings, findings,1
and conclusions and to adopt the recommended Sup-
plemental Order as modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Supplemental Order of the administrative
law judge and orders that the Respondent, E. L. Wag-
ner Company, Inc., Bridgeport, Connecticut, its offi-
cers, agents, successors, and assigns, shall pay to the
specified funds the amounts set forth (on behalf of the
named employees), plus any additional amounts com-
puted in accordance with the procedure set forth in
Merryweather Optical Co., 240 NLRB 1213, 1216 fn.
7 (1979).
Michael A. Marcionese, Esq., for the General Counsel.
Robert E. Jackson, Esq. (Siegel, O’Connor, Schiff, Zangari
& Kainen, P. C.), for the Respondent.
Robert M. Chevrie, Esq. (Ashcraft & Gerel), for the Charg-
ing Party.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me in Hartford, Connecticut, on March 21 and
April 13, 1990. This supplemental proceeding was initiated
by a compliance specification and notice of hearing, which
issued on August 31, 1989. Respondent filed an amended an-
swer to the specification on November 3, 1989.
In the underlying case, on May 31, 1989, the National
Labor Relations Board (the Board) (at 294 NLRB 493) found
that E. L. Wagner Company, Inc. (Respondent), violated Sec-
tion 8(a)(1) and (5) of the Act by failing to make the con-
tractually required benefit fund contributions for employees
who were not members of Local Union No. 146, Laborers
International Union of North America, AFL–CIO (the
Union), for the period from December 8, 1986, to May 31,
1987,1 the date the contract and their 8(f) bargaining rela-
tionship ended. The Board also found that Respondent vio-
lated Section 8(a)(1) and (5) of the Act by withdrawing rec-
ognition from the Union on April 30, 1 month before the
contract expired, but that finding is not relevant to the deter-
minations. In its Order, the Board states that Respondent
shall:
(a) Make whole unit employees by making all fringe
benefit contributions, as provided in the applicable col-
lective-bargaining agreement, which were not paid from
December 8, 1986, to May 31, 1987, and which would
have been paid in the absence of the Respondent’s uni-
lateral discontinuance of contributions, and by reim-
bursing unit employees for any expenses ensuing from
the Respondent’s failure to make those contributions.
Thus, the period in question is from December 8, 1986,
through May 31. The funds2 alleged to be involved, and ad-
mitted by Respondent, together with the hourly contributions,
are as follows:
Health Fund $1.15 an hour
Pension Fund $1.50 an hour
Training Fund $ .20 an hour
Legal Services Fund $ .05 an hour
Annuity Funds $ .30 an hour
The sole issue is who Respondent must make these payments
for, i.e., what nonunion employees did it employ between
December 8, 1986, and May 31 who were laborers. The
specification (as amended) lists the following as laborer em-
ployees of Respondent during this period and, therefore, em-
ployees on behalf of whom it had to make the required pay-
ments to the Union:
D. Escaleira H. Costa
Mario Granata J. Ruggiero
Luis Munoz T. Underhill
Albino Pinto Matthew Cuccaro
John Portela Freddy Feldman
John Biasetti Joseph Reda
Respondent admits that pursuant to the Board’s Decision
and Order, it is obligated to make these payments on behalf
of the first five individuals named above; however, Respond-
ent denies that the remaining seven individuals were laborers
whom it employed during the period, and therefore denies
602 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 It is not surprising that the Agreement was not ‘‘tailormade’’ to Respond-
ent’s operation as Respondent and the Union did not negotiate their contracts,
historically. Rather, Respondent has simply executed acceptance agreements
agreeing to be bound by the Union’s contract with the CCIA.
that it is obligated to make these payments to the Union on
their behalf.
Facts and Analysis
The contract involved was between Connecticut Construc-
tion Industries, Inc. (CCIA), and Connecticut Laborers’ Dis-
trict Council of the Laborer International Union of North
America, (the District Council), effective April 1, 1984,
through May 31. This shall be referred to as the Agreement.
The Agreement states that the District Council is acting for,
and on behalf of, a number of its affiliated locals, including
the Union. The briefs of counsel for General Counsel and
counsel for the Charging Party argue that the Agreement sup-
ports their contention that the seven employees were laborers
during the period in question. The Agreement defines the
work of unit employees in a few places: the first is subdivi-
sion A entitled: ‘‘Heavy and Highway Construction Indus-
tries,’’ which begins: ‘‘The terms of this Subdivision shall
apply to the following work when performed in connection
with the Heavy and Highway Construction Industries.’’ The
Agreement then lists about one page worth of operations,
none of which can be analogized to Respondent’s operation.
However, this subdivision does state: ‘‘and further including
all types of work as defined in the Laborers jurisdiction as
set forth in Appendix A.’’ A few pages later, the Agreement
contains a subdivision B entitled: ‘‘Tunnels and Shafts in
Free or Compressed Air,’’ stating: ‘‘The provisions of Sub-
division B . . . shall apply to all work performed in the con-
struction of both tunnels and shafts. . . .’’ This, also, would
clearly not encompass Respondent’s work.3 More to the
point, the Agreement contains an eight-page Appendix A en-
titled: ‘‘Incorporated by Reference.’’ This appendix begins:
‘‘Craft jurisdictional claims of the Laborers International
Union of North America define the work as set forth, and
shall be assigned and performed by members of the bargain-
ing unit.’’ Included in Appendix A is the following: Under
the caption: ‘‘Concrete, Bituminous Concrete and Aggre-
gates,’’ the Agreement states, inter alia:
Mixing, handling, conveying, pouring vibrating,
gunniting and otherwise placing concrete or aggregates,
whether done by hand or other process . . . Placing of
concrete or aggregates, whether poured, pumped,
gunnited, or placed by any other process. The assembly,
uncoupling of all connections and parts of or to equip-
ment used in mixing or conveying concrete, aggregates
or mortar, including concrete pumping machines and
the handling of all pipes and hoses attached thereto.
Toward the end of this appendix, it states ‘‘General Exca-
vation and Grading: The clearing, excavating, filling, back-
filling, grading and landscaping of all sites for all purposes
and all labor connected therewith.’’ The next to final para-
graph of this appendix states: ‘‘Use of tools: Operation of all
hand, pneumatic, electric, motor, combustion or air-driven
tools or equipment necessary for the performance of work
described herein.’’
The decision of the administrative law judge and the Deci-
sion and Order of the Board is of little assistance in deter-
mining the work performed by Respondent’s laborers; that
was not an issue in the underlying matter and, in fact, these
decisions never discuss any other classifications of employ-
ees employed by Respondent. However, the decision of the
administrative law judge does specifically state that Underhill
and Biasetti were among the 14 named individuals Respond-
ent rehired for the new season and that Respondent did not
make contributions to the Union on their behalf, or on behalf
of 4 other named employees.
On May 22, Respondent filed an election petition with the
Board regarding its laborer employees, with a supporting af-
fidavit of Respondent’s president, John Gedney. The affidavit
states, inter alia:
8. From a total of sixteen laborers currently employed
by E. L. Wagner Co., Inc.., nine laborer employees do
not belong to the Laborers’ Union. (A copy of the cur-
rent list of E. L. Wagner Co., Inc., laborer employees
is attached hereto as Exhibit 3). This list identifies the
Union and non-Union members.
Laborers’ Payroll as of 5/21/87:
Laborers (Union) Laborers (Nonunion)
Manuel Cerqueira John Portella
Frank Cerra Joseph Reda
Anthony Colacicco Ted Underhill
Thomas George John Biasetti
M. Granata (retired) Matthew Cuccaro
Ilidio Teixeira Dominick Escaleira
Jose Teixeira Fredy Feldman
Luis Munoz
Albino Pinto
In addition, at the hearing in the underlying matter in Jan-
uary 1988, Gedney was shown Respondent’s payroll records,
for the period December 1986 through April, for its laborer
employees who were not members of the Union and testified
as follows:
Q. Looking through that, were there employees on
your payroll working as laborers from December, 1986
through April 30th, 1987, who were not union members
on that payroll list?
A. Yes.
Q. Okay. Could you identify them as you go through
that?
A. John Biasetti, Ted Underhill, D. Eacalpira, A.
Pinto, L. Munoz, John—
Q. Just going through April 30th of 1987. Not after
that. But there were others after that date as well? Em-
ployed after that date?
A. After what date?
Q. April 30th of 1987?
A. Did I have employees after that? Yes.
Q. But at least those that you named previously, they
were there during the period from December, 1986
through April 30th, 1987; correct?
A. Yes.
Q. And you made no contributions to the Union
health and welfare, pension, legal services funds or any
603E. L. WAGNER CO.
other fringe benefit funds on behalf of those employ-
ees?
A. To the best of my recollection; no.
Q. And the sole reason why no contributions were
made on their behalf is because they are not members
of the Union?
A. That is correct.
Q. Now, it was your testimony that these employees
were all employed as laborers. What were they doing?
Were they working on construction of swimming
pools?
A. That is correct.
At the hearing, Gedney testified differently as to the em-
ployees in dispute. He testified that, over a long period of
time, any employees hired by Respondent to perform manual
work, or who worked in the field, was termed a laborer and
listed in that manner on its payroll. He testified: ‘‘I looked
at it as a generic category, they were just termed laborers
and have always been termed that way. . . . Everybody that
worked in the construction area we assumed were laborers.
We just referred to them as laborers.’’ At one time, Respond-
ent had collective-bargaining agreements with the Bricklayers
and Masons Union covering its masons; during that period
some of its manual employees were classified as masons, in
addition to the laborer classification. However, shortly there-
after, in answer to a question of counsel for General Counsel,
Gedney testified that during the period in question here, he
had a contract with the Bricklayers and Masons Union and
made contributions to the union for his employees classified
as masons. Admittedly, he had contracts with no other union
during the period in question. Gedney testified that the real
work of laborers in his operation is excavation work on the
pool, hand grading, steel work, and form work, and the seven
individuals here in dispute did not perform that work.
Gedney also testified that the difference between a laborer’s
work and a mason’s work is that a mason’s work is highly
skilled, requiring a knowledge of concrete, and how to apply
it, as well as stonework. Only his masons do cement finish-
ing, as well as coping and tiling of, and around the pool. He
also testified that Reda was Respondent’s truckdriver who
drove its heavy rack truck; to his knowledge, no laborer ever
drove that truck.
Anthony Barbero, the Union’s business manager, testified
that for many of his 17 years with the Union he has observed
Respondent’s operation by visiting the jobsites. He observed
the laborers on these jobs: ‘‘They basically did everything.
They were multicraft type of company where they all inter-
mingled and did every aspect of building a pool.’’ He has
observed Respondent’s laborers driving Respondent’s trucks,
including the rack truck. They drive them from the yard to
the jobsite and between jobsites. He has also observed Re-
spondent’s laborers operating a bobcat (an earth moving ve-
hicle) although, with other employers, this machine is oper-
ated by Operating Engineers.
Respondent constructs gunnite pools: this is the concrete
‘‘shell’’ of the pool. Unlike street paving where concrete is
poured out of a truck, gunnite is ‘‘shot’’ out of a hose (at-
tached to a truck) to the sides and bottom of the pool at
which time it is shaped or smoothed by members of the
crew. Gedney testified that Biasetti ran this crew and held
the hose, which is a mason’s job—’’a skilled job, a highly
skilled job.’’ Laborers are on the gunnite crew, but they do
not shoot the gunnite. Barbero testified that the gunnite oper-
ation is within the Union’s jurisdiction and he has observed
Respondent’s laborers performing this work.
Biasetti began working for Respondent in about 1967;
about 12 years later, he left Respondent’s employ, returning
in 1986. He was employed there at the time of the hearing.
He testified: ‘‘Well, a mason does mason work. You can’t
get a laborer to do . . . mason work because most laborers
don’t know how to do it . . . it takes experience and time
. . . to learn or to be a mason. A laborer, you can grab any-
body and do it.’’ He testified: ‘‘When you’re a laborer, there
is nothing specific. You just labor. They tell you to pick up
a plank, you pick up a plank. If they tell you to dig a ditch,
you dig a ditch. . . . Whatever they tell you to do, you do
it.’’ Masons build sidewalks, put down flagstone, coping
stone and tile; laborers do ‘‘labor work,’’ like mixing ce-
ment. Respondent’s laborers do not operate the bobcat, ‘‘be-
cause it takes a certain skill to operate.’’ Reda (and, occa-
sionally Underhill) operate Respondent’s bobcat and he has
never observed one of Respondent’s laborers operating it.
Reda also drove Respondent’s large rack truck; laborers
couldn’t drive that truck because it requires a special license.
However, laborers have driven Respondent’s smaller trucks.
The other witness at this proceeding was Theodore
Underhill, who was employed by Respondent until the spring
of 1987. He testified that Respondent’s laborers drive its rack
trucks and vans. He testified that laborers ‘‘assist’’; for ex-
ample, his job, principally, was to shoot the gunnite—’’You
got a guy that would have to be behind me dragging hose.
You got other guys . . . spreading the concrete, cutting it.’’
Laborers also assist others in putting in tile; in doing every-
thing from mixing the mortars, to carrying the tiles and set-
ting them up.
John Biasetti
As stated, supra, Biasetti worked for Respondent from
about 1967 to 1979, and returned to Respondent’s employ in
1986. During the first period, he was a laborer who, among
other things, was on the gunnite crew; when Gedney rehired
him in 1986, he told him that it would be strictly for mason
work. Since returning, ‘‘I was strictly a mason.’’ He per-
formed tile work, stone and concrete work, and finishing
work. He also shoots the gunnite—’’It’s not something that
you just pick up and do. It takes many years of experience
and you have to be qualified to do that.’’ The gunnite crew
contains five or six men; three masons and three laborers
who carry planks and dig ditches. Gedney testified that when
he rehired Biasetti in 1986, he hired him specifically to
‘‘run’’ the gunnite crew and do the gunnite work on all their
pools. He was given the title—gunnite foreman. Due to his
ability as a gunnite man and a mason, he was paid $20 an
hour—’’Well above everybody else.’’ When not doing
gunnite work, he was performing masonry jobs, such as fin-
ishing decks and putting tile and coping around pools. He
was ‘‘strictly a mason.’’ As stated, supra, Gedney’s affidavit
and his testimony at the underlying hearing lists Biasetti as
a laborer.
There is also an issue of whether Biasetti is a supervisor
within the meaning of the Act. As stated, supra, he was re-
hired in 1986 as the gunnite foreman ‘‘to run the crew.’’ He
was paid hourly, at the highest rate—$20 an hour. Gedney
604 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Costa, and the employees listed below, did not testify.
testified that he (Gedney) did the hiring for Respondent, but
Biasetti could have brought somebody who was looking for
a job to meet with him, but Gedney made the decision
whether to hire him. Gedney answered the following ques-
tions from counsel for Respondent:
Q. You mentioned, Mr. Biasetti would bring to you
people he wanted to hire?
A. Yes; he’s done that.
Q. Would he effectively recommend the hiring of
these people?
A. Yes.
Q. Have you followed his recommendation in the
past?
A. Yes
Q. Has Mr. Biasetti ever sent somebody home from
the job?
A. Not to my knowledge, but he had that ability to
do it.
Q. Did he have the authority to send somebody
home, in your absence, from a job?
A. Sure.
Q. If somebody had to leave the job, for whatever
reason, did he have authority to let them go?
A. Yes.
Gedney testified that he visits Respondent’s worksites ev-
eryday; Respondent has a number of worksites at any given
time during its construction season, and it is not clear from
Gedney’s testimony whether he visits every site every day.
Biasetti testified that he runs the job—‘‘I have control of the
men that I have with me. . . . I’m responsible for the job.’’
He does not have authority to fire an employee— ‘‘If I have
a problem, I just tell the boss.’’ He won’t send an employee
home; rather, if he is having trouble with an employee, he
will talk to him first and later tell Gedney of the situation.
There is another supervisor—Travis—between him and
Gedney. Biasetti reports directly to him. Travis visits the job-
site everyday; Gedney visits the jobsites, but not everyday.
His crew contains from 3 to 10 employees; he works ‘‘just
like everybody else,’’ and, if anybody is having difficulty
with the work, he will show him how to do it.
Theodore Underhill
Underhill began his employment with Respondent in 1982
after being sent by the Union. When he commenced employ-
ment with Respondent, he worked on the gunnite crew, ini-
tially, holding the hose; later, he advanced to spraying the
gunnite from the nozzle. In July 1986, he left Respondent’s
employ after being injured. Later in 1986, he returned to Re-
spondent’s employ for 2 months prior to the winter layoff;
during this period he was spraying the nozzle on a gunnite
crew. He returned in about April, again, spraying the nozzle
on the gunnite crew. During his employment at Respondent,
he also did some backfilling, jackhammering, and stripping
forms, as well as working on the gunnite crew. Underhill
was asked (by counsel for the Union) whether laborers did
tile work while employed by Respondent. He answered that
some laborers did it.
Q. And do you recall which laborers would put in
tile?
A. Well, whatever—we would assist like another guy
to help put up tile and stuff like that.
Q. Okay.
A. Like mix the mortar—you know, for the tiles to
be put on. You know, carry the tiles around the pool
and set them up.
Respondent’s records established that it ceased making
fund contributions to the Union on Underhill’s behalf in June
1985. Like Biasetti, Gedney, in his affidavit and earlier testi-
mony, names Underhill as a laborer.
Gedney testified that Underhill was a finisher on the
gunnite crew (something that only he and Biasetti did) which
was mason’s work and he would occasionally drive the bob-
cat. Underhill testified that he drove the bobcat for Respond-
ent for about a year in 1985. Biasetti testified that Underhill
held the nozzle for the gunnite operation—which he
(Biasetti) considers to be mason’s work.
Humberto Costa4
Respondent’s records establish that, at least, through Janu-
ary 1986, Respondent made fund contributions to the Union
on behalf of Costa. Gedney testified that Costa was a plumb-
er who did the piping on the pools and the filtration systems,
although he did not have a plumber’s license; he also testi-
fied that laborers sometimes performed plumbing work. Re-
spondent has not had a contract with the Plumbers Union for
many years. Biasetti and Underhill each also testified that
Costa does the plumbing work on the jobs; Biasetti testified
that laborers can’t do plumbing jobs.
Joseph Ruggiero
Respondent’s payroll records established that Respondent
made fund contributions to the Union on Ruggiero’s behalf,
at least, until January 1986. Gedney testified that Ruggiero
(who is no longer employed by Respondent) was a plumber
who performed the plumbing work on the pools and filter
systems. Ruggiero also did not have a plumber’s license. Al-
though laborers might do some plumbing work within the
pool, Ruggiero performed plumbing outside the pool and on
the filter, which laborers didn’t do. Biasetti also testified that
Ruggiero was a plumber, who did not perform laborer’s
work.
Matthew Cuccaro
Cuccaro was one of the employees listed as one of the
nonunion laborers in Gedney’s affidavit of May 21 in sup-
port of Respondent’s petition. The only testimony regarding
Cuccaro is from Gedney, who testified that Cuccaro’s only
job is to drive Respondent’s heavy rack truck, for which he
has a proper license. He has never performed laborer’s duties
and could not do so because of an asthmatic condition. Al-
though Respondent’s payroll records indicate that he per-
forms yard work, he testified that is a ‘‘general term.’’ He
didn’t even load and unload his truck; he would sit in the
yard while it was loaded and unloaded. That was the yard
work referred to in the payroll records.
605E. L. WAGNER CO.
5 I have placed little credence on the following testimony of Gedney because
it is unsupported by any specific testimony.
Q. Would he effectively recommend the hiring of these people?
A. Yes.
Q. Have you followed his recommendation in the past?
A. Yes
Fredy Feldman
Gedney testified that Feldman (who is also listed as a non-
union laborer in Gedney’s May 21 affidavit) does masonry
repairs on existing pools; this involves repairing cracks in the
pools or repairing tiles that may have broken. Feldman also
performs tile and coping work on new pool construction.
Biasetti testified that Feldman ‘‘was strickly a mason. He did
tile, flagstone, coping stone.’’ He did not perform laborer’s
work. Underhill testified that Feldman was a mason who
worked on the gunnite crew with him on a couple of occa-
sions doing the same work as he did.
Joseph Reda
Reda was also named as a nonunion laborer in Gedney’s
May 21 affidavit. Gedney testified that Reda (together with
Cuccaro) drove Respondent’s large truck (for which he had
a license) delivering materials to the job; he did not perform
laborer’s work. He also drove the bobcat for Respondent.
Biasetti testified that Reda was a truckdriver who drove Re-
spondent’s large rack truck as well as the bobcat. Reda deliv-
ered the bobcat to the jobsite on the large truck and either
he or Underhill operated the bobcat. Underhill testified that
Reda was a truckdriver and the other employee who operated
the bobcat. Prior to 1987, on occasion, he worked with
Underhill on a gunnite crew operating the machine that
pumps the concrete into the pool.
The backpay period is from December 8, 1986, to May 31,
and there is no dispute about that. There is also no dispute
as to funds to be contributed to, and the hourly contribution
for each. The final undisputed matter is that the following
five individuals were employed by Respondent as laborers
during the backpay period: D. Escaleira, Mario Granata, Luis
Munoz, Albino Pinto, and John Portela. The sole issue to be
decided is whether Biasetti, Underhill, Costa, Ruggiero,
Cuccaro, Feldman, and Reda were also laborers in their em-
ployment with Respondent during the backpay period. A
final issue is whether Biasetti was a supervisor within the
meaning of the Act during this period.
In NLRB v. Brown & Root, Inc., 311 F.2d 447 (8th Cir.
1963), the court stated that ‘‘in a backpay proceeding, the
burden is on the General Counsel to show the gross amounts
of back pay due. When that has been done, however, the
burden is on the employer to establish facts which would
negative the existence of liability to a given employee or
which would mitigate that liability.’’ In A & T Mfg. Co., 280
NLRB 916 at 917 (1986), the administrative law judge stat-
ed: ‘‘The burden of proving any mitigation of damages is on
Respondent herein, and any uncertainty is resolved against
the wrongdoer whose conduct made certainty impossible.’’
In making the determination, I take into consideration a
number of items. Principally, of course, is the prior decision
of the administrative law judge and the Decision and Order
of the Board as well as the testimony presented at the hear-
ing. Also clearly relevant (on its own, as well as to Gedney’s
credibility) is Gedney’s testimony at the underlying hearing,
as well as the affidavit he filed with the Board in support
of Respondent’s petition. Respondent’s remittance reports to
the Union’s funds are also relevant even though the most re-
cent one is for January 1986. The most difficult question is
the relevance of the Agreement to the instant matter. Counsel
for the Charging Party, in is brief, uses the Agreement to
support his argument that the employees in question are la-
borers. Counsel for General Counsel, in his brief, initially
cites article IX, section 1 to support his argument and then
stresses the following words from this article: ‘‘and further
including all types of work as defined in the Laborer’s Juris-
diction as set forth in Appendix A, incorporated herein by
reference and annexed to said Agreement.’’ Counsel for Re-
spondent, in his brief, states that the Agreement is not rel-
evant to the instant matter because it never refers to anything
close to Respondent’s operation—constructing and maintain-
ing private swimming pools. I find that articles IX (subdivi-
sion A) and XII (subdivision B) clearly are not relevant to
the instant matter as they involve operations totally dissimilar
to Respondent’s. I also find that the introduction to Appendix
A indicates that it was meant to stand on its own as well
as applying to industries covered by subdivision A. The
terms of this appendix are therefore relevant and will be con-
sidered in determining the court classification of the individ-
uals.
Biasetti is, obviously, an extremely competent and trusted
employee of Respondent. Both he and Gedney described his
work as ‘‘strictly’’ mason work. He does tile work, stone and
concrete work, and finishing work, as well as holding the
hose and shooting the gunnite, which he testified, is ‘‘not
something that you just pick up and do.’’ For all this, he re-
ceives an hourly wage ‘‘well above everybody else.’’ On the
other hand, the administrative law judge in his decision,
named Biasetti as one of the employees (laborers by implica-
tion) whom Respondent hired in March; in that hearing (on
January 21, 1988) Gedney testified that Biasetti was one of
the nonunion laborers employed by Respondent at that time;
and, in an affidavit dated May 21, Gedney listed Biasetti as
one of his nonunion laborers. I find that Respondent has not
satisfied its burden that Biasetti is something other than a la-
borer. Although Biasetti testified credibly that he performed
mason work (tile and stone) he also did a substantial amount
of work on the gunnite crew—laborer’s work pursuant to the
appendix in the Agreement. I find no basis for removing him
from this classification simply because he held the nozzle
and shot the gunnite. Just as persuasive is the judge’s deci-
sion naming Biasetti and Gedney’s testimony and affidavit
naming Biasetti as a laborer. I also find that Biasetti is not
a supervisor within the meaning of the Act. He was hired to
‘‘run the crew’’ and was paid ‘‘well above’’ everybody else.
The crew contains from 3 to 10 employees and Biasetti has
‘‘control of the men’’ and is ‘‘responsible for the job.’’
There is nobody above him present at the jobsite all the time,
although Gedney, apparently, visits each jobsite most days
and his superior, Travis, visits the jobsites everyday. Biasetti
cannot hire on his own, but he has brought individuals to
Gedney whom he wanted hired,5 but Gedney made the final
decision. Biasetti cannot fire an employee— ‘‘If I have a
problem, I just tell the boss.’’ He works ‘‘just like everybody
else’’ and assists employees in his crew who are having dif-
ficulty. As the Board stated in Feralloy West Co., 277 NLRB
1083 at 1084 (1985):
606 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 It should be noted that counsel for the Charging Party, in his brief, mis-
states the record when he alleges that Cuccaro did yard work and loaded and
unloaded Respondent’s trucks. In this regard, Gedney testified:
A. Well, usually with Matt for instance, he wasn’t able to do anything
else. If he drove the truck into the yard and was waiting for it to be load-
ed, he’d be sitting around waiting for it to be loaded, and therefore we
would group that as yard or miscellaneous for him.
Q. Would he load or unload the truck?
A. Matt could do all he could to drive the truck.
7 Counsel for the Charging Party, in his brief, states that Reda worked on
the gunnite crew. The only testimony in that regard is from Underhill who
testified that Reda worked with him on the gunnite crew in July 1986 (prior
to the period in question) but never worked with him on the gunnite crew
when he (Underhill) returned to Respondent’s employ in 1987 (the period in
question).
8 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
It is well established that the possession of any one of
the indicia specified in Section 2(11) of the Act is suffi-
cient to confer supervisory status on an employee, pro-
vided that authority is exercised with independent judg-
ment on behalf of management and not in a routine
manner.
Although Biasetti was an experienced employee and the
crew leader, as there is no evidence that he exercised inde-
pendent discretion on a regular basis, or to any significant
degree, I find that he is not a supervisor within the meaning
of Section 2(11) of the Act.
During his employment with Respondent during the period
in question, Underhill worked on the gunnite crew, as well
as backfilling, jackhammering, and stylizing forms. This is
laborer’s work pursuant to the appendix to the Agreement.
In addition, the judge named Underhill as one of the laborers
rehired in March, and Gedney named Underhill as a laborer
in his May 21 affidavit, as well as his January 21, 1988 testi-
mony; Respondent made contributions to the Union’s funds,
on Underhill’s behalf until June 1985 and there is no evi-
dence of any change in his duties since that date. I therefore
find that Underhill was employed by Respondent as a laborer
during the period in question.
There is little testimony regarding most of the remaining
employees. As regards Costa, Gedney testified that he was
a plumber who did the piping on the pools and the filtration
system and prepared the plumbing kits for the following
year’s season. He did not have a plumber’s license. Gedney
also testified that laborers ‘‘sometimes’’ did plumbing work.
Biasetti also testified that Costa was a plumber and that ‘‘la-
borers can’t do plumbing job.’’ Underhill also testified that
Costa was a plumber and that he (Underhill) never performed
plumbing work. Gedney, also testified that Ruggiero was a
plumber (also without a plumber’s license) who performed
no laborer’s work. He worked principally on the pools’ filtra-
tion systems and instructed Respondent’s customers on its
use. Biasetti also testified that Ruggiero was a plumber and
he never saw him perform any other kind of work. The only
evidence supporting the contention that Costa and Ruggiero
were laborers is that they do not possess a plumber’s license
(Respondent does not have a contract with the Plumbers
Union) and that Respondent made fund contributions to the
Union on their behalf, at least, until January 1986. It appears
to me that only the latter item is significant, but cannot over-
come the uncontradicted testimony that they did only plumb-
ing work, work which is distinguishable from laborer’s work
and is work that was not described in the appendix to the
Agreement. I therefore find that Costa and Ruggiero were
not laborers during the period in question and that contribu-
tions need not be made on their behalf.
The uncontradicted testimony (Gedney’s) is that Cuccaro
was a truckdriver who drove Respondent’s heavy rack truck,
for which he had a proper license. He did no other work, not
even loading or unloading his truck.6 The only evidence oth-
erwise is that Cuccaro was one of the employees named as
a laborer in Gedney’s May 21 affidavit in support of its peti-
tion. In this case, I find this is not enough to overcome the
uncontradicted evidence that he did not perform laborer’s
work during the period in question, and was, therefore, not
a laborer.
Gedney testified that Feldman principally performed ma-
sonry repair work, as well as tile and coping work on new
pool construction; Biasetti testified that he was ‘‘strictly a
mason.’’ Underhill testified that he was a mason who worked
with him on the gunnite crew on a couple of occasions. As
Feldman was listed as a laborer in Gedney’s May 21 affida-
vit, worked with the gunnite crews, on occasion, and prin-
cipally did mason repair work, I find that he should be clas-
sified as a laborer during the period in question.
Gedney testified that Reda was a truckdriver who drove
Respondent’s large truck, for which he had a license; he also
operated Respondent’s bobcat. He performed no laborer’s
work.7 Biasetti also testified that Reda drove Respondent’s
large truck and also drove the bobcat to Respondent’s jobsite
and operated the bobcat, along with Underhill. Underhill also
testified that Reda drove the truck and was the other em-
ployee who operated the bobcat. Because Reda operated the
bobcat, which would be covered by the General Excavation
and Grading provision of the appendix to the Agreement, and
was listed as a laborer in Gedney’s May 21 affidavit, I find
that he was a laborer during the period in question, even
though he also was a truckdriver for Respondent.
I therefore find that the following employees were laborers
employed by Respondent during the period December 8,
1986, through May 31: John Biasetti, Theodore Underhill,
Fredy Feldman, Joseph Reda, as well as the uncontested la-
borers, D. Escaleira, Mario Granata, Luis Munoz, Albino
Pinto, and John Portela.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended8
ORDER
The Respondent, E. L. Wagner Company, Inc., Bridgeport,
Connecticut, its officers, agents, successors, and assigns,
shall pay to the funds specified below the amounts set forth
(on behalf of the named employees), plus interest computed
in accordance with Florida Steel Corp., 231 NLRB 651
(1977), and New Horizons for the Retarded, 283 NLRB 1173
(1987):
607E. L. WAGNER CO.
Name Qtr./Yr. # Hrs. Health Fund1.15/Hr.
Pension Fund
1.50/Hr.
Training Fund
.20/Hr.
Service Legal
Fund .05/Hr.
J. Biasetti 4/86 115.5 $132.83 $173.25 $23.10 $5.78
1/87 507.5 583.63 761.25 101.50 25.38
2/87 464.5 534.18 696.75 92.90 23.23
D. Escaleira 2/87 455.5 523.83 683.25 91.10 22.78
M. Granata 2/87 192.5 221.38 288.75 38.50 9.63
L. Munoz 2/87 286.5 329.48 429.75 57.30 14.33
A. Pinto 2/87 280.0 322.00 420.00 56.00 14.00
J. Portela 2/87 220.0 253.00 330.00 44.00 11.00
T. Underhill 4/86 31.5 36.23 47.25 6.30 1.58
1/87 33.0 37.95 49.50 6.60 1.65
2/87 258.5 297.28 387.75 51.70 12.93
F. Feldman 4/86 60.0 69.00 90.00 12.00 3.00
2/87 263 302.45 394.50 52.60 13.15
J. Reda 4/86 121.5 139.73 182.25 24.30 6.08
1/87 116.0 133.40 174.00 23.20 5.80
2/87 428.0 492.20 642.00 85.60 21.40
Total $4,408.57 $5,750.25 $766.70 $199.77
Name Qtr./Yr. # Hrs. Annuity Fund.30/Hr.
J. Biasetti 2/87 235.0 $70.50
D. Escaleira 2/87 236.0 70.80
M. Granata 2/87 192.5 57.75
L. Munoz 2/87 170.5 51.15
A. Pinto 2/87 163.5 49.05
J. Portela 2/87 220.0 66.00
Name Qtr./Yr. # Hrs. Annuity Fund.30/Hr.
T. Underhill 2/87 81.5 24.45
F. Feldman 2/87 48.0 14.40
J. Reda 2/87 123.5 37.05
Total $441.15