F.G. Lieb Construction Co.

National Labor Relations Board - Board Decisions

Aug 31, 1995

318 N.L.R.B. 914 (N.L.R.B. 1995)

914
318 NLRB No. 69
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
Member Cohen finds it unnecessary to pass on the judge’s alter-
native conclusion that, assuming Brown, Tracey, and Suarez are su-
pervisors, the Respondent is nonetheless liable for the payments to
the union funds on their behalf because they would be covered by
the collective-bargaining agreement as working foremen.
1 At the hearing, counsel for the General Counsel amended the
compliance specification to exclude three employees, Andrew J.
Hull, James Knott, and Ronald Smith.
2 Unless indicated otherwise, all dates referred to here relate to the
year 1991.
F. G. Lieb Construction Co. and Laborers’ Local
17, Laborers’ International Union of North
America, AFL–CIO. Case 3–CA–17033
August 31, 1995
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS BROWNING, COHEN, AND
TRUESDALE
On May 31, 1995, Administrative Law Judge Joel P.
Biblowitz issued the attached supplemental decision.
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 has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, F. G. Lieb Construction
Co., Cincinnatus, New York, its officers, agents, suc-
cessors, and assigns shall take the action set forth in
the Order.
Alfred M. Norek, Esq., for the General Counsel.
Jerold C. Feuerstein, Esq. (Jason & Nesson), for the Re-
spondent.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This mat-
ter was heard by me on April 5, 1995, in Albany, New York.
The Board issued its Decision and Order in the underlying
matter on May 28, 1993, at 311 NLRB 810. On January 28,
1994, the United States Court of Appeals for the Second Cir-
cuit entered a consent judgment enforcing in full the provi-
sions of the Board’s Decision and Order. A dispute having
arisen over the amount due under the Board’s Decision and
Order, the Region issued a compliance specification dated
September 27, 1994.
In the underlying case, the Board found that F. G. Lieb
Construction Company (Respondent) violated Section 8(a)(1)
and (5) of the Act by failing to continue in force and effect
certain terms and conditions of employment contained in the
collective-bargaining agreement that Respondent entered into
with Laborers’ Local 17, Laborers’ International Union of
North America, AFL–CIO (the Union). More particularly, it
was found that Respondent had failed to make the contrac-
tually required contributions to the Union’s Health Benefit
Fund, Pension Fund, Training/Education Fund, Laborers-Em-
ployers Cooperation and Education Trust Fund (the
L.E.C.E.T. Fund), and the Savings Fund, all of which, at
times, shall collectively be referred to as the funds, for cer-
tain of its employees at a large job that it was performing
in Napanoch, New York (the jobsite), for Westinghouse En-
vironmental (Westinghouse). There is no disagreement herein
on the backpay period, the funds involved, or the amount due
to the funds for each employee. The only dispute is for
which employees these amounts are due. The compliance
specification, as amended at the hearing,1 alleges that con-
tributions should have been, but were not, made for the fol-
lowing employees: Tracey Brown, Travis Brown, Norman
Durand, Fred Eaton, Shannon Eaton, Kevin Livemore,
Homer Lum, Tommy Lum, Joe Randall, Michael D. Rice,
Erik Roos, John Sinesi, Michael Stafford, Carl Suarez, and
Wendell Tracey. Respondent objects to the inclusion of three
of these individuals, Tracey Brown, Carl Suarez, and Wen-
dell Tracey, all, allegedly, because they are supervisors with-
in the meaning of the Act. As Respondent bears the burden
of minimizing its backpay obligations and has introduced no
evidence bearing on the remaining 12 employees, it is found
that they were covered by the contract applicable to the work
at the facility, and that Respondent is obligated to make the
designated payments to the funds for them for the periods
specified in the compliance specification.
Respondent’s Operation at the Facility
On August 15, 1991,2 Respondent, by Gina Lieb, its
owner, executed an agreement to be bound by the terms of
a collective-bargaining agreement between the Union and
Associated General Contractors of America and Construction
Industry Council (the Agreement), which was effective for
the period June 1, 1990, through April 30, 1993. Gina Lieb’s
signature to be bound by the agreement states that it shall
only apply to Respondent for work performed at the jobsite.
The first nine pages of the agreement define the Union’s ju-
risdiction. Working foreman are included in the unit pursuant
to the agreement, and article 8 states that from 4 to 15 em-
ployees ‘‘shall be under the direction’’ or ‘‘under the direct
supervision’’ of the labor foreman, the agreement’s term for
a working foreman. Fred Lieb (Lieb), Respondent’s super-
intendent, and the individual who was in charge of Respond-
ent’s operation at the jobsite, testified that at prevailing rate
jobs such as the Westinghouse job involved here, the labor-
ers and the labor foremen receive the same wages. The
agreement, at article 30, provides that Respondent shall make
specified contributions per week to the Health Benefit Fund,
the Pension Fund, the Training/Educational Fund, the
915F. G. LIEB CONSTRUCTION CO.
L.E.C.E.T. fund, and the Savings Fund ‘‘for all employees
covered by this Agreement.’’
The Board’s Regional Office determined the figures in the
compliance specification from Respondent’s payroll records
at the jobsite from August 1991 through September 1992. All
the individuals set forth in the compliance specification ap-
pear on these payroll sheets with the title ‘‘Laborer,’’
‘‘Union Labor,’’ or ‘‘Premium Labor’’ in the column entitled
‘‘Work Classification.’’ Lieb testified that the work classi-
fication of the three individuals being litigated here was list-
ed as laborer ‘‘for administrative reasons. They were all
making the same money and it was just as easy to put la-
borer down.’’ He considered these three individuals to be
foremen and supervisors within the meaning of the Act, not
laborers.
The jobsite was an area of about 10 acres that had pre-
viously been a papermill. The contract had been awarded by
the New York State Environmental Conservation Department
to decontaminate the area. The number of employees that
Respondent maintained at the jobsite (in all job classifica-
tions) ranged from 16 to 52. The job was a hazardous waste
cleanup and Respondent’s employees were to clean the
sludge out of the ponds on the jobsite that had been contami-
nated with PCB. Lieb was in overall charge of the Respond-
ent’s operation at the jobsite. Below him was James Knott,
the project manager, who has ‘‘Premium Labor’’ next to his
name on Respondent’s certified payroll under work classi-
fication; Tracey, Suarez, and Brown are below Knott in the
hierarchy. Below them are the laborers. With the exception
of their first 5 or 6 weeks of employment at the jobsite when
their work classification was listed as laborer, Tracey and
Suarez’ work classifications were listed as premium labor on
Respondent’s payroll. Brown’s work classification is also
usually listed as premium labor.
Pat Galietta, who was employed at the jobsite as a laborer
for about 10 days, and is a union member, testified that he
has occupied the position of working foreman, although not
at the jobsite. In that position, he took direction from either
the superintendent or the general foreman, and was in charge
of a crew of from 5 to 10 employees: ‘‘you would be in
charge of the operation, what they’re going to do for the day;
that you would direct the men, what they had to do.
Lieb testified that they usually began the day with a meet-
ing attended by Westinghouse’s personnel together with he
and his foremen, including Brown, Tracey, and Suarez. At
these meetings, the Westinghouse representatives told Lieb
and his foremen what work they were to perform that day.
The foremen and the employees then had a safety meeting,
at the conclusion of which they went to the de-con trailer,
got dressed, and went to work.
Tracey Brown
Lieb testified that Brown was a building foreman who was
in charge of the crew of two or three employees that was
putting up the metal tents at the jobsite. He had laborers,
ironworkers, and, occasionally, carpenters working for him.
Either Lieb or the Westinghouse employees told him what
had to be done, and Brown’s task was to see to it that his
men did the work. Most of the time, he simply watched to
be sure that the work was being properly performed. He oc-
casionally however performed physical work if he had to ex-
plain something or assist one of the employees. Galietta testi-
fied that Brown directed the work of laborers constructing
the tents at the jobsite. He wore a tool pouch and either
worked with the tools or directed the employees.
Carl Suarez
Lieb testified that Suarez was the foreman for the three or
four employees (laborers and operating engineers) involved
with the assembly of the water treatment plant at the jobsite.
The water treatment plant pumped the water out of the ponds
and filtered and treated the water to an acceptable standard.
He was there to make sure that the job ran smoothly and that
the pipes were not leaking. He told the employees what work
had to be done and when to do it. He would generally assign
laborers to work on the pipes, but, at times, he assisted with
the work.
Wendell Tracey
Lieb testified that Wendell Tracey was also a foreman in
charge of four to six employees at the screening plant at the
jobsite. The contract required that rocks be separated from
the dirt. The dirt went through a large screening plant and
the employees’ job was to watch to be sure that the machine
was properly screening out the rocks; ‘‘there was no physical
labor because the plant did all the work.’’ He testified that
Tracey’ job was to: ‘‘Stand there and make sure it got done.
That’s the way Westinghouse wanted it.’’ Galietta testified
that he worked on this operation with Tracey; he reported to
him in the morning, and Tracey told him what he would be
doing that day.
Analysis
Respondent does not deny its liability to the funds here for
12 named employees. It does deny liability for Brown,
Suarez, and Tracey on the ground that they are supervisors
within the meaning of the Act. Clearly, this is Respondent’s
burden, Health Care & Retirement Corp. of America, 306
NLRB 63 (1992); even more so as this is a backpay hearing
where the burden of mitigating the amount owed falls on Re-
spondent. NLRB v. Brown & Root, 311 F.2d 447, 454 (8th
Cir. 1963).
There was a minimal amount of testimony here that
Brown, Suarez, and Tracey were supervisors within the
meaning of the Act. There was no evidence that they could
hire, fire, or effectively recommend such or, in any way, af-
fect the employment status of the other employees. The only
evidence adduced to establish supervisory status was that
they directed the work of the employees under them, num-
bering from two to six. They told the employees working for
them what work they would be performing, but they are ac-
tually just telling the employees what the Westinghouse rep-
resentatives had told them earlier that morning. It appears to
me that this ‘‘supervisory authority’’ is of a strictly routine
nature and does not involve the use of independent judgment
as is required by Section 2(11) of the Act. Tucson Gas &
Electric Co., 241 NLRB 181 (1979). As the court stated in
NLRB v. Security Guard Service, 384 F.2d 143, 147 (5th Cir.
1967): ‘‘Moreover, the statutory words ‘responsibility to di-
rect’ are not weak or jejune but import active vigor and po-
tential vitality.’’ Although the work being performed by Re-
spondent’s employees at the jobsite involved hazardous ma-
terials and required them to be attentive to safety rules, it re-
916 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
quired little direction. Further, there were three other individ-
uals, Lieb, Hull, and Knott, present at the jobsite to supervise
the work of the employees. I therefore find that Respondent
has failed to establish that Brown, Suarez, and Tracey are su-
pervisors within the meaning of the Act.
Even if I had found that they were supervisors within the
meaning of the Act, Respondent would be liable for the pay-
ments to the funds on their behalf. They were working fore-
men, or labor foremen, and were covered by the agreement
that Respondent agreed to be bound by. As the Board stated
in Gratiot Community Hospital, 312 NLRB 1075 fn. 2
(1993): ‘‘We have held that when parties to a collective-bar-
gaining relationship, as here, have voluntarily agreed to in-
clude supervisors in a unit, the Board will order the applica-
tion of the terms of the collective-bargaining agreement to
those supervisors.’’ As Respondent agreed to be bound by
the terms of the agreement, it is obligated to make the speci-
fied payments to the funds for the working foremen as well
as the other employees.
ORDER3
The Respondent, F. G. Lieb Construction Company,
Cincinnatus, New York, its officers, agents, successors, and
assigns, shall pay to the following funds the amounts set
forth opposite their names, with interest pursuant to
Merryweather Optical Co., 240 NLRB 1213 (1979):
Health Benefit Fund $33,281.46
Pension Fund 37,907.00
Training/Education
Fund 20,612.09
L.E.C.E.T. Fund 757.29
Savings Fund 30,368.00