J. L. Phillips Enterprises

National Labor Relations Board - Board Decisions

Jan 4, 1993

310 N.L.R.B. 11 (N.L.R.B. 1993)

11
310 NLRB No. 4
J. L. PHILLIPS ENTERPRISES
1 The General Counsel excepted to the judge’s finding in fn. 2 of
his decision that the complaint failed to name Albert Mancini as one
of the alleged discriminatees. We note that the General Counsel’s
amendment to the complaint and notice of hearing, dated August 5,
1992, added the name Albert Mancini to the list of alleged
discriminatees contained in par. VII of the complaint. This inad-
vertent error does not affect the outcome of the case because the
judge included Mancini in the remedy and recommended Order on
the basis that his conduct was fully and fairly litigated.
1 Unless indicated otherwise, all dates referred to herein relate to
the year 1992.
2 The complaint fails to name Albert Mancini as one of the alleged
discriminatees at par. VII. Because Mancini testified that he was one
of the union members present at the meeting with Phillips (as will
be discussed more fully below) and as his participation was fully
and fairly litigated, and as General Counsel’s brief makes clear that
Mancini is one of the alleged discriminatees, I find that his exclusion
from the complaint was inadvertent, and he will be included as one
of the alleged discriminatees.
Jimmy L. Phillips, d/b/a J. L. Phillips Enterprises
and Laborers’ International Union of North
America, AFL–CIO, Local 7. Case 3–CA–16923
January 4, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On October 30, 1992, Administrative Law Judge
Joel P. Biblowitz issued the attached decision. The
General Counsel filed an exception to the decision.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exception and has decided to af-
firm the judge’s rulings, findings,1 and conclusions 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, Jimmy L. Phillips, d/b/a J.
L. Phillips Enterprises, Binghamton, New York, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the Order.
Alfred M. Norek, Esq., for the General Counsel.
Jimmy L. Phillips, pro se, for the Respondent.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me on September 8, 1992, in Binghamton,
New York. The complaint and notice of hearing, which
issued on March 23, 1992,1 was based on an unfair labor
practice charge filed on March 2 by Laborers’ International
Union of North America, AFL–CIO, Local 7 (the Union).
The complaint alleges that on about February 17, Jimmy L.
Phillips, the proprietor, agent, and representative of J. L.
Phillips Enterprises (Respondent), informed Bruce Knapp,
Michael Zarelli, Leroy Brown, Jacob Fissel, Edward Hrehor,
and Richard DeRose2 that they were ineligible to be hired by
Respondent because they were members of the Union, and
thereafter, Respondent refused to hire these individuals, in
violation of Section 8(a)(1)and(3) of the Act.
On the entire record, including my observation of the wit-
nesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a sole proprietorship owned by Jimmy L.
Phillips and doing business as J. L. Phillips Enterprises. Re-
spondent’s principal office is in Jacksonville, Arkansas, as
well as various jobsites throughout the United States, includ-
ing a baseball stadium that had been under construction in
Binghamton, New York (the jobsite), where it was engaged
in the installation of public seating for the stadium. During
the 12-month period preceding March 23, Respondent pur-
chased and received at its Arkansas facility goods valued in
excess of $50,000 directly from points outside the State of
Arkansas, and during the same period it performed services
valued in excess of $50,000 in States other than the State of
Arkansas. Respondent admits, and I find, that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION STATUS
Respondent admits, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
III. FACTS AND ANALYSIS
General Counsel called as witnesses six of the seven al-
leged discriminatees who testified about the events of Feb-
ruary 17, as well as Joseph McKay, the Union’s business
manager. Jimmy Phillips, the owner and proprietor of Re-
spondent, testified on its behalf.
McKay testified that, as part of his job, he is generally fa-
miliar with construction projects in the Binghamton area, and
he was aware of the construction of the jobsite, a multipur-
pose stadium (principally for baseball) in Binghamton. Work
on the project began in about August 1991; the general con-
tractor was Garbade Construction. In about January McKay
visited the jobsite and saw that they were starting to do some
of the preparation for the installation of the seats at the sta-
dium. He asked an employee who was in charge of the seat-
ing, and was directed to Phillips, who was at the jobsite.
McKay introduced himself and asked Phillips how he oper-
ated, and whether he normally hired union employees and
Phillips said that he did. McKay asked him when he thought
the seats might be in, and Phillips answered that he thought
they would be installed about March 1. McKay asked what
‘‘his intentions were’’ as far as unloading and distributing
the seats, and Phillips said that he would have to discuss that
with the Garbade superintendent. McKay told Phillips that,
historically, unloading and distribution were Laborers work.
That was the extent of the conversation. It should be noted
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that it is the Union’s position that unloading the seats from
the truck and distributing them to their eventual location was
union work, while drilling the holes for the seats and their
installation was carpenters’ work. Phillips testified that the
Laborers jurisdiction ends (and the Carpenters begins) after
the seats are brought to their eventual location.
Brown, a union member for 34 years, testified that he
went to the jobsite on February 17 with Zarelli, Fissel,
Hrehor, Knapp, DeRose, and Mancini; earlier that day they
met with Mckay, who told them that he thought that the
seats might be ready for installation that day. Brown, who
was the spokesman for the group, asked where he could find
Phillips, and was directed to an area where he saw Phillips
unloading a tractor-trailer with a forklift and two helpers.
They approached Phillips and Brown asked him if he was
going to be hiring laborers and Phillips said that he was.
Brown handed him the list of the seven men who were there
and Phillips looked at it, put the list in his pocket and asked
if Brown belonged to the Union. Brown said that he did and
Phillips said: ‘‘I can’t hire you because of an agreement I
have with Garbade Construction.’’ That was the extent of the
conversation and he and the other six individuals left the job-
site. He testified that Phillips never mentioned any wage rate,
nor did Phillips say that he couldn’t hire union men because
he was only paying $5 an hour. Phillips also never told them
that he could hire them if they cleared it with the Union to
work for less than the union rate.
Knapp, a union member for 25 years, testified that he went
to the jobsite on February 17 with the other individuals.
They saw Phillips on the forklift and Brown handed him a
list containing their names and asked if he was hiring; he
said that he was. Phillips then asked if they belonged to a
union and Brown said that they were members of the Union.
Phillips said: ‘‘Well, you’ll have to go through Garbade.’’
Phillips never said that he couldn’t hire them because he was
only paying $5 an hour, nor did he mention any wage rate.
Phillips also never said that he would hire them if they
cleared it with the Union to receive a lower wage rate than
provided by the Union.
Mancini, a union member for 30 years, testified that
Brown asked Phillips if he was hiring laborers to unload the
truck. Brown handed Phillips the list with the names and
Phillips looked at the list and asked if they were members
of the Union and they said that they were. Phillips said: ‘‘I
can’t hire you because I have a special contract with
Garbade,’’ although he did not explain further. Phillips did
not mention a wage rate, say that he would hire them if they
were willing to work for $5 an hour or say that he would
hire them if they cleared it with the Union.
Fissel, who has been a member of the Union for 19 years,
testified that Brown asked Phillips if he needed any help and
whether he was hiring laborers and he answered yes. Brown
handed him the list and Phillips asked whether they were
members of the Union and they said that they were. Phillips
said: ‘‘Well, I can’t hire you because I have a special ar-
rangement with Garbade Construction.’’ They all left. He
also testified that Phillips never said that he couldn’t hire
union men because he was only paying $5 an hour, he never
mentioned any wage rate, and never said that he would hire
them if they cleared it with the Union to work for lower than
the union scale. Phillips also never told them to go directly
to Garbade for work at the jobsite.
Hrehor, a union member for 32 years, testified that when
they were at the jobsite that morning Brown asked Phillips
if he was hiring laborers and Phillips said that he was.
Brown then gave him the list of the out-of-work union mem-
bers and Phillips said that he had a special agreement with
Garbade, and that they would have to see Garbade about
working at the jobsite. Phillips never mentioned a wage rate,
nor did he say that he could not hire union men because he
was only paying $5 an hour. Additionally, Phillips never said
that he would hire them if they would clear it with the Union
to work for less than the union rate.
Zarelli, a union member for 23 years, testified that when
they saw Phillips that morning Brown asked him if he was
going to hire any laborers and Phillips answered yes. Phillips
then asked if they were members of the Union and they an-
swered yes. Phillips then said that due to a special agreement
with Garbade, he couldn’t hire them and they left. Phillips
never said what wage rate he was paying, that he couldn’t
hire them because he was only paying a $5 an hour rate, or
that he would hire them if they would clear it with the Union
to work for less than the Union’s rate.
Phillips was Respondent’s sole witness. He testified as fol-
lows: Respondent installs stadium seating throughout the
country, providing the labor and expertise, but not the seats
themselves. His operation unloads the seats from the trucks,
brings the seats to their eventual location, and bolts them in.
Respondent performs both union and nonunion installations.
He received a telephone call in January offering him the con-
tract to install the seats at the jobsite, but that it ‘‘was a non-
union installation. I was told that if I took the contract, that
I possibly could have certain complications with the union,
but that Garbade would stand behind us.’’ He accepted the
contract. His work was to begin on January 27, and on that
date he arrived at the jobsite for the first time, at which time
he met the ‘‘business agent,’’ presumably McKay, behind
home plate at the facility. All he could recollect of the con-
versation was that he told McKay that he could not hire
union laborers or carpenters because he had a nonunion con-
tract with Garbade; whereas union contracts allow for $18 to
$25 an hour, nonunion contracts range from $5 to $7 an
hour. He also told McKay that he has employed union labor-
ers when he ‘‘carried a union contract.’’ He told him that he
would ask Garbade to ‘‘subsidize’’ the difference in the pay,
or make some other arrangements with the factory or their
contractor to cover the difference between union and non-
union wages. When Phillips later asked this of Garbade, the
request was refused.
It took Respondent about 3 weeks to complete its prelimi-
nary work of layout, drilling, and caulking anchors with the
six employees who traveled with Phillips to the jobsite. At
this stage, Respondent would normally leave for about 3
weeks, when the seats would ordinarily be scheduled to ar-
rive. However, on this occasion, Phillips received a call that
the general contractor wanted the job rushed, so if Respond-
ent would remain at the jobsite, the factory would expedite
the delivery of the seats. They agreed to do so, and Respond-
ent remained. On about February 10, McKay returned to the
jobsite (according to Phillips’ testimony) and Phillips told
him that Garbade had refused to make any adjustment in his
contract, it was still a nonunion contract, which meant that
he could not afford to pay union laborers. He said that he
was caught in the middle, and there wasn’t anything that he
13J. L. PHILLIPS ENTERPRISES
could do. That was the last time he spoke to McKay, and
his last involvement with the Union except for his meeting
with the members, about a week later.
The first truck carrying the seats arrived at the jobsite on
February 13 or 14; Phillips and his two employees unloaded
it. The second truck arrived about 3 days later; it was while
they were unloading this truck that he was approached by
Brown and the others. Phillips testified:
When the gentlemen came up to me . . . I explained
to them that I had an agreement with Garbade that—
I had a non-union installation. In my contract I could
not hire laborers. I told those gentlemen that if they
wanted employment, if they would speak to Garbade,
that I knew Garbade was hiring . . . that would be the
only route I knew. They left without saying anything
else.
Phillips was asked if he would have hired these individuals
if he reached an agreement with them on a wage rate. He
answered: ‘‘If the gentlemen could have worked for me for
the wage, then I would not have had a problem hiring
them.’’
Phillips testified further that in about midday on February
17 he ordered temporary help from a local office of Olsten
Temporary Help. The employees from Olsten numbered from
7 to 10 and began working on the morning of February 19.
These employees worked with Respondent’s regular employ-
ees opening the boxes and distributing the seat components
to where they would eventually be bolted. In addition, they
put the seat components in place and loosely bolted the seats;
Respondent’s regular employees tightened the connections
and completed the work. The work was completed 6 to 7
weeks later.
McKay testified that Phillips never told him that he had
a nonunion contract and that if he wanted to hire union la-
borers, he would have to ask Garbade to subsidize the dif-
ference, nor did he (McKay) ever say that he would talk to
Garbade about the situation. McKay also testified that the
January meeting at the jobsite was the only time that he
spoke to Phillips and that there was no discussion of wage
rates at this meeting. Fissel, Hrehor and Zarelli each testified
that when they went to the jobsite on February 17 they were
not aware that Respondent’s subcontract was nonunion;
Brown, Knapp and Mancini were not questioned about this.
Phillips, of course, had an opportunity to cross-examine
each of General Counsel’s witnesses. On those occasions, he
asked Brown, Mancini, Fissel, and Zarelli whether, during
their meeting on February 17, he told them to contact, or
speak to, Garbade to obtain employment at the jobsite. Each
answered that he did not say that to them.
The credibility determination herein is not an easy one.
Phillips was not an obviously incredible witness and his tes-
timony is not so inconceivable as to be hastily discredited.
In addition, I found somewhat surprising McKay’s testimony
that he was unaware that Phillips’ contract was a low rate,
nonunion contract. I would have thought that the head of the
Union would have been aware of the terms of the contracts
given out for such a high profile construction project in a
city the size of Binghamton. Further, General Counsel’s wit-
nesses were not in agreement on what Phillips said to them
on February 17, although this is not unusual. In fact, it
would have been suspicious if each of the six witnesses testi-
fied in an identical manner. Overall, I found Brown,
Mancini, Fissel, and Zarelli to be the most credible and be-
lievable of the witnesses, and their testimony matches fairly
well: Phillips asked them if they belonged to the Union and,
when they answered that they did, he said that he couldn’t
hire them because of an ‘‘agreement’’ that he had with
Garbade (Brown), he couldn’t hire them because of a ‘‘spe-
cial contract’’ that he had with Garbade (Mancini), he
couldn’t hire them because of a ‘‘special arrangement’’ he
had with Garbade (Fissel), and he couldn’t hire them because
of a ‘‘special agreement’’ that he had with Garbade (Zarelli).
There is little significance to the differences in these versions
of what Brown said, and I find that, after asking them if they
belonged to the Union, Phillips told them that he couldn’t
hire them because of a special arrangement that he had with
Garbade.
This is not the usual fact pattern in an 8(a)(3) case. I cred-
it Phillips’ uncontradicted testimony that sometimes he works
with union employees and at other times he doesn’t. Al-
though he refers to these situations as dependent upon his
obtaining a union or nonunion subcontract, what he actually
means is the determining factor is whether the subcontract he
receives has a high enough dollar figure for him to afford
to pay union wages. According to his testimony, the dif-
ference can range from $5 to $7 an hour for nonunion con-
tracts to $18 to $25 for union contracts, and he has worked
under both of these situations. Unfortunately (for Respond-
ent), the subcontract at the jobsite was for the former low
rate situation and Phillips, apparently, felt that union mem-
bers would not accept $5 to $7 an hour to work for him at
the jobsite. If he told them of these facts, and they refused
to work at what they considered an hourly rate that was too
low to be acceptable, there would obviously be no violation
herein. However, that is not what occurred herein. After
learning that they were union members, Phillips simply told
them that he couldn’t hire them because of a special arrange-
ment that he had with Garbade. Whether he said this because
he assumed that they wouldn’t accept work at such a low
hourly rate, or for another reason, the fact remains that he
told them that he could not hire them because of their union
membership and refused to hire them because of their union
membership, which violates Section 8(a)(1) and (3) of the
Act, and I so find.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by in-
forming Jacob Fissel, Leroy Brown, Michael Zarelli, Edward
Hrehor, Bruce Knapp, Richard DeRose, and Al Mancini that
he could not hire them because they were members of the
Union.
4. Respondent violated Section 8(a)(1) and (3) of the Act
by refusing to hire Brown, Zarelli, Fissel, Hrehor, Knapp,
DeRose, and Mancini because of their membership in the
Union.
14 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.
4 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.’’
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, it will be recommended that it cease and
desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act. While I would normally
recommend that Respondent offer jobs to Fissel, Brown,
Zarelli, Hrehor, Knapp, DeRose, and Mancini, because its
subcontract at the jobsite is long over, and Respondent is out
of the Binghamton area, there are obviously no jobs to offer.
However, it is recommended that Respondent be ordered to
make these individuals whole for any loss they suffered as
a result of the discrimination against them. This will be de-
termined at a subsequent supplemental hearing to determine
what backpay, if any, they are owed. Backpay shall be com-
puted in accordance with New Horizons for the Retarded,
283 NLRB 1172 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The Respondent, Jimmy L. Phillips d/b/a J. L. Phillips En-
terprises, Binghamton, New York, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Informing job applicants that they cannot be hired be-
cause they were members of the Union.
(b) Failing and refusing to hire job applicants because they
were union members.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make whole, with interest, Brown, Zarelli, Fissel,
Hrehor, Knapp, DeRose, and Mancini in the manner set forth
above in the remedy section of the decision.
(b) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(c) Mail to each of the discriminatees and post at its prin-
cipal office in Jacksonville, Arkansas, copies of the attached
notice marked ‘‘Appendix.’’4 Copies of the notice, on forms
provided by the Regional Director for Region 3, after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT inform job applicants that they are not eligi-
ble for hire because they are members of Laborers’ Inter-
national Union of North America, AFL–CIO, Local 7 (the
Union) or any other labor organization.
WE WILL NOT refuse to hire any job applicant because he
is a member of the Union or any other labor organization.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL make whole, with interest, Leroy Brown, Albert
Mancini, Jacob Fissel, Edward Hrehor, Bruce Knapp, Rich-
ard DeRose, and Michael Zarelli for any loss of earnings
they suffered as a result of our discrimination against them.
JIMMY L. PHILLIPS, D/B/A J. L. PHILLIPS EN-
TERPRISES