Edward L. Nezelek, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 616 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Edward L. Nezelek, Inc. and Daryl L. Burgess,
John D. Gelin, and Gary J. Dobson.
Carpenters Local Union 655 and Daryl L. Burgess,
John D. Gelin, and Gary J. Dobson. Cases 12-
CA-8495, 12-CA-8616-1, 12-CA-8616-2, 12-
CB-2058, 12-CB-2092-1, and 12-CB-2092-2
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On June 5, 1980, Administrative Law Judge
Julius Cohn issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
Carpenters Local Union 655 and Respondent
Edward L. Nezelek, Inc., filed answering briefs in
support of the Administrative Law Judge's Deci-
sion.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that Respondent
Edward L. Nezelek, Inc., Key West, Florida, its
officers, agents, successors, and assigns, and Re-
spondent Carpenters Local Union 655, Key West,
Florida, its officers, agents, and representatives,
shall take the action set forth in the said recom-
mended Order, as so modified:
I The General Counsel has excepted to certain credibility indings
made by the Administrative Law Judge It is the Board's established
policy not to overrule an administrative law judge's resolutions with re-
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect. Standard Dry
Wall Productsi Inc., 91 NLRB 544 (1950). enfd 188 F.2d 362 (3d Cir
1951). We have carefully examined the record and find no basis for re-
versing his findings
2 In his Decision, the Administrative Law Judge correctly found that
Respondent Union's acceptance of the dues of employee Gary Dobson,
remitted to it without checkoff authorization, violated Sec 8(b)(1)(A) of
the Act. In his Conclusions of Law, however, the Administrative Law
Judge inadvertently found that Respondent Union's action also violated
Sec. 8(b)(2) of the Act. We hereby correct the Conclusions of l.aw to
reflect only an 8(b)(l)(A) violation in this action.
252 NLRB No. 70
1. Substitute the following for paragraph B, 1,
(b):
'(b) In any like or related manner restraining or
coercing employees of Edward L. Nezelek, Inc., in
the exercise of the rights guaranteed them by Sec-
tion 7 of the Act."
2. 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
WE WILL NOT withhold from the pay of our
employees any union dues without authoriza-
tion from such employees.
WE WILL NOT in any way or in any manner
contribute financial or other support to Car-
penters Local Union 655.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the National Labor Rela-
tions Act, as amended.
WE WILL, together with Carpenters Local
Union 655, refund to Gary Dobson money
which has already been deducted for union
dues, with interest.
EDWARD L. NEZELEK, INC.
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT accept or receive any union
dues deducted from the pay of employees of
Edward L. Nezelek, Inc., without authoriza-
tion.
WE WILL NOT in any like or related manner
restrain or coerce employees of Edward L.
Nezelek, Inc., in the exercise of the rights
guaranteed them by Section 7 of the Nation
Labor Relatins Act, as amended.
WE WILL, along with Edward L. Nezelek,
Inc., refund to Gary Dobson the money which
has already been deducted for union dues, to-
gether with interest.
CARPENTERS LOCAL UNION 655
616
EDWARD L. NEZELEK, INC.
DECISION
S'IATI MI NtI OF1: HI CASE
JULIUS COHN, Administrative Law Judge: This case
was heard before me in Coral Gables, Florida, on July
16, 17, and 18, 1979. Upon charges filed and served on
February 7, 1979, by Daryl L. Burgess, the Regional Di-
rector for Region 12 issued an order consolidating cases
and complaint on March 19, 1979, alleging that Edward
L. Nezelek, Inc., herein called the Company, violated
Section 8(a)(1) and (3) of the Act, and that Carpenters
Local Union 655, herein called the Union, violated Sec-
tion 8(b)(l)(A) and (2) of the Act. Thereafter, upon
charges filed and served on May 2 by John D. Gelin;
and charges filed and served on May 7 by Gary J.
Dobson; the Regional Director issued an order consoli-
dating cases and complaint on May 21, 1979, alleging
that the Company further violated Section 8(a)(1), (2),
and (3) and that the Union violated Section 8(b)(1)(A)
and (2) of the Act. On June 7, 1979, the Regional Direc-
tor then issued an order consolidating for hearing all of
the above noted cases.
The principal issues framed by the pleadings are
whether the Company violated Section 8(a)(1) of the Act
by threatening to discharge employees unless their dues
were paid to the Union; whether the Company dis-
charged Burgess, Gelin, and Dobson because of their
nonmembership in the Union; and whether the Company
also violated Section 8(a)(2) of the Act by deducting
dues from the pay of Dobson without authorization.
With regard to the allegations against the Union, the
issues are whether the Union violated Section 8(b)(1)(A)
and (2) of the Act by requesting the Company to dis-
charge Burgess, Gelin, and Dobson because of their non-
membership in the Union; whether the Union further
violated Section 8(b)(1)(A) of the Act by threatening to
strike or cease work if the Company continued to
employ Burgess, Gelin, and Dobson, and further by ac-
cepting dues which had been deducted from the pay of
Dobson without authorization.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. The
General Counsel, the Company, and the Union submitted
briefs which have been carefully considered.
Upon the entire record in this case and from my obser-
vation of the witnesses and their demeanor, I make the
following:
FINDINGS OF FACT
I. JURISDICTION
The Company, a New York corporation, has a princi-
pal office and place of business in Fort Lauderdale, Flor-
ida, where it is engaged in the construction industry as a
general contractor. During the 12 months immediately
preceding the issuance of the complaint, the Company
purchased and received goods and materials valued in
excess of $50,000, which were shipped directly to it from
points located outside the State of Florida. The com-
plaint alleges, Respondents admit, and I find that the
Company is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE I ABOR ORGANIZATION INVOI V.)
Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act.
Ill. THE Al I.E(GiI) UNFAIR ABOR PRACTICES
A. Background
The Company, since February 1978, has been the gen-
eral contractor at a U.S. Department of Agriculture job-
site in the Key West, Florida, area. As such, it hired car-
penters to do form work, pour concrete forms, hang
doors, install sheet rock, dry walls, and other types of
carpentry work. The Company has a collective-bargain-
ing agreement with Carpenters' District Council of
Miami, Florida and Vicinity. However, the signature
page of the agreement also contains the name of Local
655, Marathon, Florida, and is signed by Earnest L.
Morris, as business agent of Local 655, the Union herein.
While the agreement defines the usual trade jurisdiction
of the carpenters, it does not contain a union-security
clause nor does the Union operate an exclusive hiring
hall. It is undisputed that at the jobsite involved, there
were both union and nonunion employees among the 21
carpenters employed at the time of the events to be de-
scribed.
The three Charging Parties in this proceeding were all
laid off on January 17, 1979, by the Company. Daryl
Burgess had originally been employed by the Company
in 1977 as a laborer but left shortly to obtain employ-
ment as a carpenter. Subsequently, he returned to the
Company and was employed by it as a carpenter, and
soon after he was asked by the then steward on the job
to join the Union. Burgess went to Marathon, where the
union office is located, spoke to Morris, and filled out
applications to join the Union. He was told that the initi-
ation fee was $250, which he could pay out of his pay-
checks. Burgess made two payments: one on May 2,
1978, of $25 for his initiation fee and $4 for a work
permit, a total of $29; and then on June 5, an additional
payment of $50 toward initiation fees and $8 for a work
permit. He made no further payments on account of initi-
ation fees nor did he obtain further work permits after
June 1978. Consequently, Burgess never became a
member of the Union.
John Gelin was employed in August 1978 as a jour-
neyman carpenter. Gelin is a member of Carpenters
Local 105 in Cleveland, Ohio. As a union member, Gelin
was aware that he had to obtain a work permit from the
local union in the area that he was working. He states
that he purchased a work permit from Morris about 1-1/
2 months after he commenced his employment for the
Company, and then purchased a permit on a monthly
basis until November 1978, which was the last one he
bought.
Gary Dobson commenced working on September 26,
1978, as an apprentice carpenter. He states that initially
no one said anything about the Union or asked him to
become a member. Sometime thereafter, during a visit by
617
DECISIONS OF NATIONAL LABOR RELATIONS BO)ARD
Morris to the jobsite, he asked Dobson about joining the
Union, and requested that he come to the union office to
fill out the applications. Dobson testified that he took off
from work I day and went to the union office, arriving
sometime between I and 2 p.m., and Morris was not
there. According to Morris, he had told Dobson to come
to his office early in the morning so that he would not
lose too much time from work. Morris customarily re-
mained in his office until noon each day when his re-
sponsibilities required that he visit jobsites and take care
of other union business outside the office. In any case,
Dobson never did file application for membership nor
did he make any payments to the Union.
However, it is conceded that the Company was de-
ducting 10-cent-a-week dues from Dobson's paycheck,
despite the fact that he had not executed any checkoff
authorization for such deduction. The collective-bargain-
ing agreement provided for certain payments to be made
by the Company to an administrative organization which
in turn remitted them to the trustees of the District
Council's Health and Welfare Fund and Pension Fund.
In addition, the agreement provided for the deduction of
a 10-cent dues, upon a checkoff authorization being ex-
ecuted by an employee, which the administrator remitted
directly to the Carpenters District Council of Miami.
B. The January 16 Gathering at the Jobsire
Morris visited the jobsite on January 16, partly in
order to bring the application papers for Dobson, and
also because he heard that Gelin was back on the job
without a work permit. In addition, it was customary for
Morris, when visiting the site, to attempt to collect dues
from his members. There is considerable conflict in the
testimony of the parties and witnesses concerning what
transpired that afternoon.
Gelin testified that he was working with Dobson when
Morris came up, asked his name, and said he had not
purchased his work permit. Gelin replied that he did not
intend to purchase another one and would not pay for
the kind of representation he was receiving on the job.
Gelin stated that Morris said if he did not buy a permit,
he would not be working the next day. According to
Gelin, Morris then asked Dobson where he had been and
Dobson replied he had tried to purchase a card, that he
had gone to Marathon once, but Morris had not kept the
appointment. Dobson then told Morris that he did not
want to become a member because there had been no
representation. After some words, Morris informed
Dobson that he would not be on the job the next day.
Gelin's version continues that he heard Morris call for
the steward and instruct him to get the men together. As
the carpenters were gathering, he argued with Morris
about poor representation, and other complaints about
the job. Gelin said at that point, Kocenko, the job super-
intendent came up and Gelin told him he should not be
there because this was a union matter. Kocenko protest-
ed that he did have an interest because the men are his
men and he is running this job and they should be work-
ing. Finally, Gelin testified that Morris, calling out the
I There is no explanation in the record for this unauthorized deduction
from Dobson's pay.
names of Burgess, Dobson, and Gelin, told the steward if
those three men were on the job tomorrow, he was to
pull the job. Gelin then said that the meeting was dis-
persed when Kocenko said, "Enough of this bullshit you
guys, if you want to belong to the Union, you pay your
dues or you can't work."
Oddly enough on cross-examination, Gelin admitted
that his affidavit, given in the course of the investigation
of this case, said nothing about Morris telling him if he
does not buy a permit, he cannot work the next day, or
that Morris said the job would be pulled if the three
named people were on the jobsite the following day. Nor
did his affidavit contain any reference to Morris telling
Dobson, in Gelin's presence, that he could not work the
next day. In addition, his affidavit contained other dis-
crepancies with respect to his oral testimony. Most im-
portant, Gelin was the only witness, including the Gen-
eral Counsel's other witnesses, who averred that Superin-
tendent Kocenko told the employees they had to pay
their dues to the Union or they could not work. In sum,
I find Gelin not to be a credible witness.
Dobson testified that on the day before his layoff, he
had been in front of the building where he and Gelin
were working when Morris came along and told him he
was annoyed because Dobson had not shown up at the
office. Dobson then told Morris he was not going to join
the Union; and the latter replied that if he did not join
the Union, he could not work on the job. Dobson stated
that a little later there was a meeting of the carpenters at
which Morris pointed to Burgess, Gelin, and himself and
told the steward and Kocenko, who was there, that he
did not want these three people on the job the following
day. There followed discussion at which Gelin and Bur-
gess complained to Morris about various things. As to
Kocenko, Dobson said he was there at the beginning of
the gathering, but then changed his testimony to say Ko-
cenko came up after the discussions had started. He said
Kocenko wanted to know what was going on and that
he was tired of everybody standing around and wanted
them to go back to work. Kocenko wrote something on
a piece of paper, according to Dobson, and asked him
for his name. Dobson was the only witness who testified
that Kocenko wrote anything down on a piece of paper.
Burgess testified that as the carpenters were gathering
for the meeting, Morris asked who was Burgess. The
latter was standing a few feet away and said he was Bur-
gess. He stated that by this time Dobson and Gelin were
present, and Morris pointed out the three of them and
said these men are off the job. Morris told him that he
was so far behind that he could not work unless he was
part of the Union. Burgess said he then left saying that
he could not take this. He noticed Kocenko standing
about 40 feet away talking to some electricians, and told
him that he had better listen at the meeting because there
was a lot of bologna going on. According to Burgess,
Kocenko went over to the group with him, and Morris
repeated that Burgess, Gelin, and Dobson were not to
return to the job. Morris said Gelin was a troublemaker
and there followed a lot of arguing, talking, and profan-
ity. Burgess also stated that the meeting took about 15
minutes after he went to get Kocenko, who was there all
618
EDWARD L.. NEZELEK. INC.
of that time. According to Burgess, Kocenko told them
he was tired of their battling with the Union; that they
were slowing down his job; that they had to get straight-
ened out with Morris, and if they could not, that was it.
Burgess said that Morris also pointed out the three of
them to the steward, instructing him that if they showed
up at the job, he was to close the job down.
There were a number of conflicts in Burgess' testimo-
ny. For example, on direct examination, he testified that
Morris did not ask him anything about payments on initi-
ation or work permit fees. On cross-examination howev-
er, he claimed that Morris told all three of them that
they were not in good standing and could not work any-
more because of dues payments. At one point, Burgess
testified that he did not believe the job was winding
down during the period from October 1978 to January
1979. However in his affidavit, he stated that in the 4
months there was a 50-percent cut in the carpenters em-
ployed and he estimated that the job would have been
finished by April 1979. In addition, in other areas Bur-
gess was less than a candid witness. For example, al-
though he had submitted a lengthy statement during the
course of the investigation, he claimed he never looked
at it after he signed it. In addition, I find incredulous his
statement that he never discussed these cases with Gelin
and Dobson, despite the fact that they were terminated
on the same day, and thereafter saw each other socially.
Morris testified that on January 16 he arrived at the
jobsite and met Gelin and Dobson. He asked Dobson if
he had a permit and whether he intended to buy one, at
which Gelin began berating him and the Union so that
Morris walked away. Dobson also had told him before
he walked away, that he did not want to join the Union.
Gelin followed him and continued his tirade, and then
the carpenters began to gather around. Contrary to the
testimony of Gelin and Dobson, he did not tell the ste-
ward, Ted Beerbower, to round up the carpenters. How-
ever when Beerbower came over, Morris did tell him
that if Gelin did not have a current work permit the fol-
lowing morning, he was to let Morris know. There was
further talk among the carpenters who had questions.
During this discussion Gelin brought up his complaint
about carpenters not receiving pay for working higher
up.
Morris further testified that he had asked the steward
to advise him the following morning about Gelin having
a work permit because it was his intention to bring inter-
nal union charges against Gelin if he failed to obtain a
permit. He insisted that since Gelin was a member, the
question of his work permit was therefore an internal
union matter. Finally, Morris stated that while walking
away with the steward, Beerbower asked him privately
what he should do about Dobson and Burgess. He told
the steward that since they were not union members, a
man did not have to work in the same crew with a non-
union employee, and arrangements could be made to
have them work with someone else. Morris denied tell-
ing anyone that if Burgess, Dobson, and Gelin showed
up at the jobsite the next day, the men were to walk off
or that those employees could not work without paying
dues. Nor did he have any conversation with Kocenko
about laying them off. He said that Kocenko had been at
the gathering very briefly, and they said nothing directly
to one another, and, as a matter of fact. he only heard
Kocenko say something about not holding up work at
the site.
Although it could be said that all of the witnesses in
this proceeding were interested parties, perhaps the least
interested or biased was Ted Beerbower, who was an
employee but also the steward at the jobsite. Beerbower
had been a member of the Union only since June 1978,
and was apparently the last of a series of stewards at this
site. I found him to be forthright, not at all evasive, the
most candid of the witnesses, and I credit his version of
the gathering at the jobsite on January 16. Beerbower
testified that he had been working some distance from
where the carpenters had gathered around Morris, and
when he walked up to that location, most of them were
already there. He affirmed that he had not been told by
Morris to round up people. He restated that he heard
some discussion among the carpenters, including Gelin,
who was saying that people were not being treated right
by the Union and not getting anything from it. He also
heard Morris say at one point that he would bring
charges against Gelin; and Gelin replied that he would
also bring charges against Morris. Beerbower said he
was not told by Morris, that if Gelin, Dobson, and Bur-
gess came the next day, he was to pull the job; but he
did say that Morris told him if Gelin showed up without
a work permit, he was to let Morris know. According to
Beerbower, Morris did not say that the Union was not to
work, nor did he make any reference to anyone not
paying dues. In that regard he noted that Dobson was
not a member, and did not owe any dues.
Beerbower also affirmed that after the meeting he had
asked Morris what to do about Dobson and Burgess.
Morris told him that he did not have to work with them
if he did not want to. Beerbower said he did not tell this
to other employees, and when work started the follow-
ing day at 7:30 a.m., he did not tell anyone not to work.
On the contrary, the work went on without incident.
As to Kocenko, Beerbower said he was there a very
short time and as he walked up to the gathering, he
asked what was going on and Gelin told him it was none
of his business, it was a union matter. Kocenko then said
that this affected his job and it did matter that they
should break up the meeting and go back to work. Beer-
bower said that this was when the meeting began to
break up. He also said that as soon as Kocenko made his
remark, he turned and started walking away. Kocenko
did not say that people would be laid off if they did not
pay their dues.
Kocenko, himself, testified that he was present at the
gathering hardly a minute, that he was upset at the
goings on, and gave the carpenters an order to get back
to work. He said on occasion Morris asked for an oppor-
tunity to collect some dues, and on this date may have
said he was having some trouble about dues. He became
aware of this later when carpenters told him they were
being forced to pay dues, and he told them this was none
of his business.
As I have indicated above, I do not credit the testimo-
ny of the Charging Parties. At some points, their testi-
619
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mony was in conflict with their own affidavits, there
were variations between direct and cross-examination,
and with regard to some matters, they differed with one
another. On the other hand, for the reasons stated above,
I do credit the testimony of BIccrbower concerning his
account of the January 16 gathering at the jobsite. But
prior to his arrival on the scene, Morris had a conversa-
tion with Gelin and Dobson, and I credit his statement
that he merely asked Gelin if he intended to purchase a
permit and did not respond to Dobson who said he was
not going to join the Union. I find, therefore, that Morris
did not tell Gelin he would not be working the next day
if he failed to purchase a permit, nor did he tell Dobson
he could not work if he did not join the Union.
On the basis of Beerbower's credited testimony, I find
Morris did not tell Burgess, a nonmember, that he could
not continue working because he was behind in his dues,
that Morris did not tell Kocenko that Burgess, Gelin,
and Dobson were not to return to the jobsite the follow-
ing day, and if they came to work, he would close down
the job. Nor did Kocenko tell the carpenters that they
should pay their dues or they could not work. The Gen-
eral Counsel has not shown by a preponderance of the
credible evidence that the above statements attributed to
Morris and Kocenko had indeed been made at the Janu-
ary 16 gathering at the jobsite.
C. The LayojiA
On January 17, the Charging Parties reported to the
jobsite for work as usual. There was no work interrup-
tion by the Union members or any other similar incident.
After about 2 hours of work, Kocenko laid off Burgess,
Gelin and Dobson, telling them that there was a lack of
work, and that the job was winding down. There is gen-
eral agreement that as of January 1979, the job indeed
was winding down. This is confirmed even by the testi-
mony of Burgess who had stated in his affidavit that
there had been a 50-percent cut in carpenters and that
the job would be finished, in his opinion, by April 1979.
Moreover, the records of Respondent indicate a gradual
reduction in the number of carpenters at the jobsite from
that date on. 2
However, although the layoff of the three on January
17 was due to economic reasons, these three employees
were selected for individual reasons. In this connection,
Kocenko testified that he made his decision on this
before the gathering at the jobsite.
Kocenko stated that Burgess, while not the best, was
one of his better carpenters and the sole reason he was
selected for layoff was his attendance record. According
to Kocenko, Burgess missed many days, a fact that is not
denied. Kocenko stated that he intended to layoff Bur-
gess for absenteeism in December, but had told his fore-
man to warn him about it.
2 There was I week thereafter when Respondent hired a few extra car-
penters One of the reasons that I credit the testimony of Beerbower was
that he had a recollection of this, and candidly stated it. However. none
of the carpenters hired during that week were recalled former employees
as it is apparent that there was a good deal of turnover of employees at
the jobsite and in the Key West area generally In any case. the trend
was a winding down and decrease in the number of employees At the
time of the hearing. Beerbower as the only remaining carpenter.
Kocenko said that he had selected Gelin for layoff
after consultation with Carpenter Foreman Figuile. The
latter had reported to Kocenko that Gelin continually
asked for more money, complained about his pay, that
his work was of poor quality, and that he had trouble
working with other employees. Kocenko further said
that he was additionally upset with Gelin who, after a
brief period of employment, requested and received a I
week vacation, then after obtaining an additional week,
took off some extra days.
With regard to Dobson, an apprentice, Kocenko also
consulted Figuile who had been reporting that he had
problems with Dobson's work, and there also had been
an incident when Dobson, wearing his hard hat, butted
against a broken coke machine.
Kocenko testified that he had decided the previous
day to lay off these three employees, but as their checks
could not be made ready, he brought them in on January
17 for a few hours of work and paid them off. The rea-
sons given for the layoff of all three of these employees
were not seriously contraverted, the General Counsel
contending merely that these were subterfuges and they
were really laid off because of their nonmembership and
failure to pay dues to the Union.
D. Conclusions as to Unfair Labor Practices
The complaint allegations are that the Union threat-
ened to strike if these employees continued to work, that
the Company threatened to discharge employees unless
dues were paid, and that it did discharge these three be-
cause of nonmembership and failure to pay dues at the
request of the Union. Finally, it is further alleged that
the Company unlawfully deducted dues which the Union
accepted from Dobson without authorization.
On the basis of the credited evidence above, I have
found that Kocenko did not threaten to discharge em-
ployees whose dues were not paid, but that his role at
the gathering on January 16 on the jobsite was limited to
a brief appearance in which he, in effect requested that
they get their union business over with as quickly as pos-
sible and get back to work. Accordingly, I shall satisfy
the allegation that the Company violated Section 8(a)(l)
by threatening to discharge the employees. In this con-
nection, it is noted that all parties agreed at the hearing,
including the testimony of the Charging Parties, that
there were carpenters on the jobsite who were not mem-
bers of the Union, as well as union members who were
delinquent in the payment of dues, all of whom contin-
ued to work. Moreover, Burgess and Dobson were not
members of the Union and therefore did not accrue any
obligation to pay dues.
I have found on the credited evidence, particularly
that of Beerbower, that the Union, through Morris, did
not threaten to cease work if the Company continued to
employ Burgess, Gelin, and Dobson, and therefore I
shall dismiss the allegation that the Union had thereby
violated Section 8(b)(1)(A) of the Act.
The principal allegation contained in each of the com-
plaints here is that the Company, at the request of the
Union, laid off Burgess, Gelin and Dobson because of
their nonmembership in the Union. With regard to Gelin,
620
EDWARD L. NEZELEK, INC.
this in itself is not accurate since he was a union member
of another local, who failed to obtain work permits from
the Local Union. However, conceivably the Union could
have requested Gelin's layoff for that reason. I find with
respect to these allegations that the General Counsel has
failed to establish by a preponderance of the evidence
that the Union had indeed requested Respondent to lay
off these employees. There is certainly no direct evi-
dence that Respondent requested or in any other way
demanded that the Company lay off these employees, as
there is no credible testimony of communication between
Morris or any union agent and Kocenko or any other
company official on this subject. Nor is there credited
evidence that the Union in some manner indirectly re-
quested the layoffs. The only threat made by Morris was
directed to Gelin, as a union member, in which Morris
stated that he intended to file internal union charges
against Gelin because of his refusal to follow union dir-
ectives concerning work permits for nonresident mem-
bers. Actually Morris did, the following day, file such
charges, which were eventually dismissed because of
Morris' inability to attend the meeting at which they
were brought up. I find on the basis of the entire record,
that the Union did not request the Company to lay off
these employees because of their nonmembership, and
shall therefore dismiss so much of the complaints as
allege violations of Section 8(b)(2) and (I )(A) for that
reason. 3
There follows that the Company did not violate Sec-
tion 8(a)(1) and (3) of the Act because the General
Counsel has not shown by a preponderance of evidence
that the Union requested or demanded their layoff be-
cause of their nonmembership in the Union.
There remains for consideration the allegation that the
Company violated Section 8(a)(2) by deducting dues
from the pay of Dobson without authorization, and that
the Union violated Section 8(b)(1)(A) by accepting such
dues deductions. The evidence on this is uncontroverted.
The Company deducted a 10-cent a week dues from
Dobson's pay and remitted the same to an administrative
agent for the account of Carpenters' District Council of
Miami, Florida, and Vicinity. Also uncontroverted is
that Dobson did not execute a checkoff authorization for
this deduction.
The Union defends this allegation on the basis that the
dues were remitted to the District Council and not to the
Union, and the District Council is not a party to this
proceeding. The collective-bargaining agreement reveals
on the signature page the names of both Carpenters, Dis-
trict Council of Miami, Florida and Vicinity and Local
655, Marathon, Florida, and the agreement is signed by
Morris, among others, as business agent. In addition
Local 655 is associated with the District Council, and
indeed receives a monthly subsidy from it. I find that di-
rectly or indirectly, the Union does receive a benefit
from the District Council who had been the recipient of
the dues deduction.
I therefore find that the Company violated Section
8(a)(2) of the Act by deducting dues from the pay of
: Unired Brothrhood of Carpenler & Jner% otf .4lmerica. Iocal tUnio
No. 515 (G. E Johnson Contruction Co.. Inc.), 188 NLRH 32 (1971)
Dobson, and that the Union violated Section 8(b)(I)(A)
by accepting those dues, without authorization of
Dobson.4 Although the amount of money involved is not
significant, the violation is clear, and unexplained, and
requires a remedial order.
IV. THE EFFFICT OF THF UNFAIR I.ABOR PRACTICES
UPON COM.MERCE
The activities of Respondents, set forth in section III,
above, occurring in connection with the operations of
the Company described in section 1, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE RLMEDY
Having found that Respondents have engaged in cer-
tain unfair labor practices, I shall recommend that they
be ordered to cease and desist therefrom, and to take
certain affirmative action designed to effectuate the poli-
cies of the Act.
Having found that the Company has checked off dues
from the paychecks of Gary Dobson and paid them over
to Carpenters' District Council of Miami, Florida and
Vicinity, which payments redounded to the benefit of
the Respondent Union, I shall recommend that Respond-
ents be required jointly and severally to refund the dues
which have been checked off, with interest to be com-
puted in the manner prescribed in Florida Steel Corpora-
tion, 231 NLRB 651 (1977).
CONCI.USIONS OF LAW
1. Respondent Edward L. Nezelek, Inc., is an employ-
er engaged in commerce within the meaning of Section
2(5) and (7) of the Act.
2. Respondent Carpenters Local Union 655 is a labor
organization within the meaning of Section 2(5) of the
Act.
3. By deducting union dues from the pay of employee
Gary Dobson, who had not executed a checkoff authori-
zation, the Company violated Section 8(a)(2) and (1) of
the Act.
4. By accepting the remission of dues deducted from
the pay of employee Gary Dobson, without checkoff au-
thorization, the Union violated Section 8(b)(2) and
8(b)(1)(A) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. The General Counsel has not established by a pre-
ponderance of evidence that Respondents have violated
the Act with respect to the allegations in the complaint
in Cases 12-CA-8495 and 12-CB-2058.
7. Except as specifically found herein, the General
Counsel has not established by a preponderance of evi-
dence that Respondents have otherwise violated the Act
With respect to the allegations in the complaint in Cases
12-CA-8616-1, -2 and 12-CB-2092-1, -2.
4 IHoward Cretllion. Inc.. 212 NLRB 179 (1974)
621
DECISIONS OF NATIONAL I.ABOR RELATIONS BOARD
Upon the foregoing findings of fact, conclusions of
law, and the entire record and pursuant to Section 10(c)
of the Act. I hereby issue the following recommended:
ORDER 5
The Respondent, Edward L. Nezelek, Inc., Key West,
Florida, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Withholding Union dues from the pay of any of its
employees, and paying to Carpenters' District Council of
Miami and vicinity any dues which have been deducted
from the pay of its employees without authorization.
(b) By any means or in any manner contributing to the
financial support of Carpenters' Local Union 655.
(c) In any like or related maniner interfering with, re-
straining, or coercing its employees in the exercise of
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the purposes and policies of the Act:
(a) Jointly and severally with Carpenters' Local Union
655 reimburse Gary Dobson from whose wages it has
deducted union dues for said Union, together with inter-
est as provided in the section of this Decision entitled
"The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all re-
cords necessary to analyze and compute the amount of
reimbursement to Dobson, which may be due under the
Remedy section of this Order.
(c) Post at its Key West construction site, if still in op-
eration, and its Fort Lauderdale office, and mail to Gary
Dobson, copies of the attached notice marked "Appendix
A."6 Copies of said notice, on forms provided by the Re-
gional Director for Region 12, after being duly signed by
Respondent's representatives, shall be posted by it imme-
diately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
' In the event no exceplions are filed as provided for by Sec 102 46 of
the Rules and Regulations of the National labor Relalions Board, the
findings, conclusions. arid recommended Order herein shall, as provided
in Sec. 102 4 of the Rules and Regulations be adopted hby the Board and
become its findings, conclusions and Order, and all objections thereto
shall be deemed waived fior all purposes
6 In the event that this Order is enforced by a Judgment of the United
Stales Courl of Appeals, he words in the notice reading "Posted by
Order of the Natiotnal I.abor Relations oard" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enfrrcing an
Order of the National Labor Relations Board "
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director for Region 12, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
B. Respondent Carpenters Local Union 655, its offi-
cers, agents, and representatives, shall:
I. Cease and desist from:
(a) Accepting or receiving from Edward L. Nezelek,
Inc., union dues, which have been deducted without au-
thorization from the pay of any of the employees of said
employer.
(b) In any like or related manner interfering with, re-
straining, or coercing employees of Edward L. Nezelek,
Inc., in the exercise of rights guaranteed them by Section
7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the purposes and policies of the Act:
(a) Jointly and severally with Respondent Edward L.
Nezelek, Inc., reimburse Gary Dobson from whose
wages union dues have been deducted by Edward L.
Nezelek, Inc., the amount of such money which has been
deducted and withheld from said employee, together
with interest.
(b) Post at its office copies of the attached notice
marked "Appendix B." 7 Copies of said notice on forms
to be provided by the Regional Director for Region 12,
after being duly signed by said Union, shall be duly
posted by it immediately upon receipt thereof, and be
maintained by it for sixty consecutive days thereafter, in
conspicuous places, including all places where notices to
members are customarily posted. Reasonable steps shall
be taken by Respondent Union to insure that said notices
are not altered, defaced, or covered by any other materi-
al.
(c) Furnish to the Regional Director for Region 12
signed copies of said notice for posting by Respondent
Edward L. Nezelek, Inc., in places where the notices to
employees are directed to be posted above.
(d) Notify the Regional Director for Region 12, in
writing, within 20 days from the date of this Order, what
steps said Union has taken to comply herewith.
I1 IS FURTHER ORDF.REI) that the complaint in Cases
12-CA-8616-1, -2 and 12-CB-2092-1, -2 be dismissed
insofar as it alleges matters not specifically found.
IT IS FURTHE-R OR)FERED that the complaint in Cases
12-CA-8985 and 12-CB-2058 be dismissed in its entire-
ty.
7 See fin , upru.
622