E. R. Steubner, Inc.

National Labor Relations Board - Board Decisions

Nov 24, 1993

313 N.L.R.B. 459 (N.L.R.B. 1993)

459
313 NLRB No. 61
E. R. STEUBNER, INC.
1 The Board’s Order is not included in bound volumes.
2 The General Counsel has excepted to some of the judge’s credi-
bility 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 evidence 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 examined the record
and find no basis for reversing the findings.
In affirming the judge’s discrediting of the testimony of employee
Keary Bortz, we find it unnecessary to rely on Bortz’ dating of the
Pagoda jobsite discussion with Construction Coordinator James
Radwanski.
3 See John Deklewa & Sons, 282 NLRB 1375 (1987), enfd. 843
F.2d 770 (3d Cir. 1988).
4 Contrary to the judge’s finding, the potential difficulty in identi-
fying the beneficiaries of a make-whole order is not a basis for dis-
missing the complaint. As the Ninth Circuit stated in an analogous
context, ‘‘In short, we do not think that the difficulties that the Gen-
eral Counsel may have in identifying discriminatees makes an award
of backpay any less appropriate. Such a matter merely affects the
scope of the remedy and not the nature of the violation.’’ NLRB v.
Iron Workers Local 433, 600 F.2d 770, 779 (9th Cir. 1979). We
shall leave to the compliance stage of this proceeding the identifica-
tion of the carpenters who would have received the Grafika project
work but for the Respondent’s unlawful subcontract assignment.
E. R. Steubner, Inc. and Laborers Local No. 471,
District Council of Eastern PA and Local 492,
United Brotherhood of Carpenters and Joiners
of America. Cases 4–CA–19750 and 4–CA–
19750–2
November 24, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On September 24, 1992, Administrative Law Judge
Thomas R. Wilks issued a decision finding that the
Respondent did not violate Section 8(a)(5), (3), and (1)
as alleged in the complaint and an order dismissing the
complaint. The General Counsel filed exceptions and a
supporting brief. The Respondent filed an answering
brief. On January 29, 1993, the National Labor Rela-
tions Board issued an Order remanding the case to the
judge to make further credibility findings and to recon-
sider certain complaint allegations in light of the credi-
bility findings.1 On February 17, 1993, the judge
issued the attached supplemental decision making
credibility findings and adhering to his original find-
ings and recommendations. The General Counsel filed
exceptions and a supporting brief.
The National Labor Relations Board has considered
the decisions and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings,2 and conclusions to the extent consistent
with this Decision and Order.
The complaint alleges that the Respondent violated
Section 8(a)(5) of the Act by subcontracting drywall
installation in violation of its contract with Local 492,
United Brotherhood of Carpenters and Joiners of
America (the Union). The judge declined to find a vio-
lation, stating that it would be impossible to formulate
a make-whole remedy because the carpenters who
might have received the subcontracted Grafika project
work cannot be identified. The General Counsel has
excepted. We agree with the General Counsel.
The parties’ 8(f) contract, which expired on April
30, 1991, contained a clause that is valid under the
proviso of Section 8(e) of the Act. The clause provides
that drywall subcontracting would be performed by
employers signatory to a collective-bargaining agree-
ment with the Union. The Respondent admits that, be-
tween February and April 1991, it subcontracted about
10 days’ worth of drywall work on its Grafika jobsite
to a nonunion company in violation of this provision.
Thus, unless the Union waived its rights under the
contract, the Respondent’s admitted action violates
Section 8(a)(5).3
The waiver of a statutory right must be clear and
unmistakable. Metropolitan Edison Co. v. NLRB, 460
U.S. 693, 708 (1983). Further, a union’s past practice
of permitting unilateral changes or contract modifica-
tions does not constitute a waiver of the union’s right
to bargain over such changes or to insist upon adher-
ence to the contract. NLRB v. Miller Brewing Co., 408
F.2d 12 (9th Cir. 1969); Owens-Corning Fiberglas,
282 NLRB 609 (1987).
In this case, there is no evidence that the Union con-
sented to the Respondent’s violation of the contract’s
subcontracting provision. On the contrary, the Union
protested the Respondent’s action before bargaining for
a new contract began and decided to address the matter
during the upcoming negotiations. That the parties
failed to resolve the matter during negotiations does
not constitute a waiver.
In the past, the Respondent has violated the contract
provision and the Union has protested. Each time the
parties have managed to settle the dispute. We do not
believe the Union’s past practice constitutes acquies-
cence to the Respondent’s violation of the contract
provision. In any event, as Board precedent makes
clear, a union’s acquiescence in previous unilateral
conduct does not necessarily operate in futuro as a
waiver of its statutory rights under Section 8(a)(5).
In sum, the General Counsel has established a viola-
tion of Section 8(a)(5) in this case.4
REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order it to cease
and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.
The Respondent, having unlawfully subcontracted
work in violation of its collective-bargaining agree-
ment with the Union, shall make whole the employees
deprived of the work for any loss of earnings and other
460 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
benefits, plus interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, E. R. Steubner, Inc., Reading, Pennsyl-
vania, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Subcontracting work in violation of its collec-
tive-bargaining agreement with the Union.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make whole employees deprived of work by the
unlawful contracting out of the drywall work at
Grafika Printing, in the manner set forth in the remedy
section of this Decision and Order.
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(c) Post at its facility in Reading, Pennsylvania, cop-
ies of the attached notice marked ‘‘Appendix.’’5 Cop-
ies of the notice, on forms provided by the Regional
Director for Region 4, after being signed by the Re-
spondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(d) Sign and return to the Regional Director suffi-
cient copies of the notice for posting by Local 492,
United Brotherhood of Carpenters and Joiners of
America, if willing, at its union hall and at all other
places where notices to members are customarily post-
ed.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges violations not found here.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT subcontract work in violation of our
collective-bargaining agreement with the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL make whole employees, deprived of work
by our unlawful contracting out of the drywall work at
Grafika Printing, for any loss of wages and benefits,
plus interest.
E. R. STEUBNER, INC.
Richard P. Heller, Esq., for the General Counsel.
Thomas R. Davies, Esq. (Harmon & Davies), of Lancaster,
Pennsylvania, for the Respondent.
Bruce E. Endy, Esq. (Spear, Wilderman, Borish, Endy,
Brownine & Spear), of Philadelphia, Pennsylvania, for La-
borers Local No. 471.
Leon Ehrlich, Esq. (Ehrlich & Ehrlich), of Reading, Pennsyl-
vania, for Carpenters Local 492.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
THOMAS R. WILKS, Administrative Law Judge. On Sep-
tember 24, 1992, I issued a decision in this case wherein dis-
missal of the entire complaint was recommended, inclusive
of all allegations of Section 8(a)(1), (3), and (5) of the Act.
On January 29, 1993, the Board issued an order remanding
this case to me for the limited purpose of making specific,
explicit credibility resolutions with respect to the issue of the
alleged coercive interrogations and promise of benefit by Re-
spondent Agent James Radwanski directed at Carpenters em-
ployee Keary Bortz on April 17, 1991, at the Pogoda jobsite,
as discussed at pages 7 and 8 of my decision. The Board
noted that although I made preliminary credibility findings,
I deferred evaluation of the probative value of Bortz’ testi-
mony. Subsequent to my discussion of Bortz’ credibility, I
considered, seriatim, the evidence adduced in support of
461E. R. STEUBNER, INC.
other allegations of 8(a)(1) violations of the Act, and made
specific findings.
On page 27 of my decision, I found that the testimonial
evidence of all coercion adduced by the General Counsel was
not credible for reasons delineated therein, and I rec-
ommended dismissal of all allegations of 8(a)(1) violations,
inclusive of unlawful interrogation and promises of benefits.
Those conclusions and underlying reasons were intended to
encompass the testimony of Bortz, but, unfortunately, his tes-
timony was not explicitly alluded to by me in that analysis.
Conclusions
The Board has ordered that I make specific findings as to
the probative value of Bortz’ testimony. I find that his testi-
mony was subject to the deficiencies that marked that of
other General Counsel witnesses, i.e., it was ambiguous, gen-
eralized, conclusionary, in part inconsistent, context free and
unconvincing.
More specifically, I find that although there was more to
the conversation than testified to by Radwanski, the testi-
mony of Bortz was of insufficient probative value and not
credible. His demeanor on the witness stand was such as to
convince me that he was narrating a superficial conclusion
as to what was stated by Radwanski. It cannot be ascertained
from his direct examination testimony what turned the con-
versation from business matters to the subject of the
‘‘Union,’’ i.e., was it something suggested by Bortz himself
or by Radwanski? Furthermore, it is not clear from direct ex-
amination whether Radwanski discussed the subject of Bortz’
union membership or whether Radwanski had, as other em-
ployee testimony indicated, referred to Respondent’s inten-
tion to withdraw from its status of an 8(f) employer, and an
inquiry whether Bortz would remain employed for a non-8(f)
employer.
Even according to Bortz, Respondent expressed no animus
toward union members and explicitly stated an intent to uti-
lize union members sent by the union job referral hall. Fur-
thermore, Bortz referred to an expressed desire by
Radwanski for Bortz’ continued employment and to Bortz’
potential to work his way up to foreman status.
Bortz’ testimony is also too unclear and ambiguous to sup-
port a finding that Radwanski coercively interrogated Bortz
as to his intention with respect to financial core membership,
or that Radwanski promised Bortz a foreman’s position on
condition that he became a financial core union member.
Bortz’ testimony regarding the reference to financial core
membership is unreliable. The purported interrogation about
financial core membership by Radwanski is inconsistent,
generalized and conclusionary, i.e., ‘‘[Radwanski] asked me
about core membership.’’ Unanswered is what context gave
rise to that question, just how and in what manner did
Radwanski question Bortz, what was the precise question put
to Bortz, what did Bortz precisely say before and after the
question? In direct examination, Bortz testified that he re-
sponded to Radwanski that he had already been informed
about the nature of financial core membership from prevalent
employee rumors. He testified that he heard rumors of finan-
cial core ‘‘papers’’ being circulated. Yet, inconsistently in
cross-examination, he admitted that those rumors related to
Respondent’s going ‘‘non-union,’’ i.e., withdrawing from an
8(f) contractual status, and did not relate to financial core
membership letters. Bortz testified it was he who asked
Radwanski about Respondent’s intention with respect to its
8(f) contractual status. This admission clouds Bortz’ testi-
mony to the extent that doubt is raised as to whether
Radwanski initiated the interrogation. I therefore find
Radwanski’s testimony credible that the conversation was
initiated by Bortz and consisted, at least in part, of Bortz’
interrogative of Radwanski as to Respondent’s intention to
discontinue its contractual relationship with the Union as an
8(f) employer, and the impact on Bortz’ status as an em-
ployee. I find that Radwanski replied more than ‘‘I have no
idea,’’ and at least assured Bortz of his status of an em-
ployee with foreman potential should he choose to remain
employed by a non-8(f) contractual employer. I find nothing
coercive in such conversations. Therefore, in an unspecified
manner, in a context of a discussion related to Respondent’s
intention regarding its 8(f) contractual relationship with the
Union, according to Bortz, the conversation somehow turned
to the subject of financial core membership for which
Radwanski admittedly did not solicit his written application
then nor thereafter, but rather merely gave a generalized de-
scription of it.
Finally, as noted in the decision, there is no complaint al-
legation of a promise of benefit at the Pogoda jobsite, and
unrefuted evidence discloses that the jobsite had been com-
pleted well before April 17, the date recalled by Bortz.
Because of the deficiencies and the uncertainties in Bortz’
testimony, I cannot find sufficient probative value, nor credi-
bility on which to base a finding that an unlawfully coercive
conversation occurred between Bortz and James Radwanski
on or about April 17, 1991.
[Recommended Order for dismissal omitted from publica-
tion.]