James H. Boyle & Son, Inc.

National Labor Relations Board - Board Decisions

Jul 25, 1978

237 N.L.R.B. 135 (N.L.R.B. 1978)

James H. Boyle & Son, Inc. and Richard Dolan. Case
I-CA-13029
July 25. 1978
DECISION AND ORDER
BY CHAIRMAN FANNING ANL) MtM 1B RS PtNI-l I (
AND TRUIFSDAI I
On May 4, 1978, Administrative Law Judge Mi-
chael O. Miller issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and the Respondent
filed a brief in support of the Administrative Law
Judge's Decision.
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, findings.' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
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 and hereby
orders that the complaint be. and it hereby is. dis-
missed in its entirety.
|The General Counsel has excepted to certain credlbilht? findinms made
by the Administrative Law Judge It is the Board', established poliks not to
overrule an Administrative Law Judges, resolurtons with respect to credi-
hilit) unless the clear preponderance of all of Ihe relevant es idence con nen-
es us that the resolutions are Incorrect Shtndard Drv S1 all Prodai nt In, 91
NLRB 544 i1950). enfd 188 F.2d 362 (C A 3 1951) We hate csrefull'
examined the record and find no basis for reversing hit findings
DECISION
STATEMENT OF t (HE CASF
MICHAEL O. MILLER. Administrative Law Judge: This
case was heard on January 25 and 26, 1978. in Boston.
Massachusetts, upon a charge filed by Richard Dolan. an
individual, on April 25. 1977, and a complaint issued by
the Regional Director for Region I of the National Labor
Relations Board on June 8, 1977. The complaint, as
amended, alleged that James H. Boyle & Son, Inc., herein
the Respondent, violated Section 8(a)(3) and (I) of the Na-
tional Labor Relations Act, as amended, herein the Act. by
terminating three employees because they were union offi-
JAMES H. BOYLE & SON. INC
cers and had concertedlN refused to work under conditions
other than those specified in the governing collective-bar-
gaining agreement and by so informing the employees. Re-
spondent's timel\ filed answer denied the commission of
any unfair labor practices.
All parties were given full opportunity to participate, to
introduce relevant evidence. to examine and cross-examine
witnesses, and to argue orally. General Counsel and Re-
spondent filed briefs which have been carefully considered.
Upon the entire record, including my careful observa-
tion of the witnesses and their demeanor. I make the fol-
lowing:
FINDINCS OF FA( I
I IHE RESPONDEN FS BUSINESS AND YHE IONION'S l ABOR
ORGANIZATiON STATrUS CONCIUIISIONS OF l.AW
Respondent is a Massachusetts corporation engaged in
the building and construction industry. Its principal office
and place of business is in Everett., Massachusetts. The
complaint alleged facts establishing. Respondent admitted,
and I find and conclude that Respondent is an employer
engaged in commerce and in an industry affecting com-
merce within the meaning of Section 2(2), (6). and (7) of
the Act.
The complaint alleged, Respondent admitted, and I find
and conclude that Wood. Wire and Metal Lathers Union.
Local No. 72 (herein the Union) is a labor organization
within the meaning of Section 2(5) of the Act.
II tHe- Al I F1n t NFAIR LABOR PRA(TICFS
Respondent was the subcontractor for drywall installa-
tion at the South Shore Hospital in Weymouth, Massachu-
setts. It had a collective-bargaining relationship with the
Union and. pursuant to that relationship. two different
contracts. One was a standard written agreement covering
those employees engaged in the traditional work of erect-
ing iron or metal lathing over which plaster was applied
(by members of another craft) to form a wall. Due to tech-
nological changes in the industry. the Union had also
agreed to separate. less costly terms for those of its mem-
bers engaged in the erection of drywall. Like the standard
agreement. the special agreement provided for an hourly
rate for work performed and made no provision for an
incentive or piece rate.
Prior to the start of the South Shore Hospital project,
one or more meetings were held between Respondent and
the Union, represented by Henry Sheerin, its business
agent. According to Peter Bifano, the job superintendent
and son of Respondent's owner, Sheerin agreed to provide
men pursuant to the drywall agreement. When Peter Bifa-
no asked him to provide men who would look toward per-
forming the job on an incentive basis, Sheerin told him "if
we can work out an incentive plan with the men, that it was
perfectly all right."
Sheerln denied agreeing to the performance of this job on an incentlse
basis As Peter Bilfano's testilins does 1nol atirlhute such an agreement to
Sheerin. but at hbest lai.ri tentatlxt e .pprox;al sublect to the agleenlellt of
the emplosees, which agreerrent .u; neler forthcoming, nl ciedlbilitt, Ii-le
requiring resolution exists
237 NLRB No. 20
135
DELCISIONS OF NATIONAL LABOR RELATIONS BOARD
The first two employees sent by the Union to the South
Shore Hospital, in mid-March 1977 2 were Emanuel Pau-
kovitz, who became the foreman, and Kenneth McDo-
nough. They worked as a team. A second team, consisting
of Paul Flaherty and Richard Dolan. began work on
March 30. All four were members of the Union: McDo-
nough, Flaherty, and Dolan were also members of its exec-
utive hoard. The parties stipulated that Paukovitz, as fore-
man, was a statutory supervisor.
After the four individuals began working at the site, Re-
spondent again raised the question of their performing the
work on an incentive basis. In the beginning of April, Peter
Kazmier. Respondent's outside superintendent, was in-
structed to try to get the employees to agree to an incentive
basis. Kazmeir related the request to Paukovitz and asked
him to speak to the men and see what they thought of it.
He told Paukovitz that the men were each supposed to be
averaging 100 feet of partition per day. Paukovitz, in turn,
related the request to the employees, who rejected it, and
he so reported to Kazmeir.
Although Kazmeir testified that he spoke only once to
Paukovitz about an incentive system, Paukovitz and Mc-
Donough had a number of conversations on the subject.
The first was as described above. The second was similar,
except that Paukovitz mentioned Peter Bifano's name.3 Fi-
nally, according to McDonough, Paukovitz told him that a
lot of pressure was being put upon him about piecework
on the job, that the job was not going well enough for the
Employer and that, for that reason, they wanted it done on
a piecework basis. McDonough told Paukovitz that he and
his fellow employees were members of the Union's execu-
tive board and were not going to work piecework because
it was contrary to the Union's constitution and bylaws 4
and their collective-bargaining agreement. This latter con-
versation was around April 17, about 3 days before Re-
spondent terminated McDonough, Flaherty, and Dolan.
On April 20, about 1:30 or 2 p.m., Kazmeir spoke with
Thomas Hickey, a lather hired on April 18 at the South
Shore Hospital. He told Hickey that they would be better
off working piecework. Hickey said that he could not do
anything until he spoke with Sheerin and that he could not
go against union regulations.
Similarly, at another of Respondent's jobsites, the Bow-
doin School Annex, Peter Bifano had several times ap-
proached the lathers and proposed that they perform their
work on some form of an incentive or piecework basis.
They never agreed to do so.
About 3 p.m. on April 20, a payday, McDonough, Flah-
erty, and Dolan were laid off. Kazmeir spoke to each of
them individually and gave them their checks. According
to both Dolan and Flaherty, Kazmeir only told them that
he could see no other reason for their terminations except
that the sixth floor, on which they had been working, was
not completed in time. He accepted some of the blame for
that himself.
2 All dates hereinafter are 1977.
Peter Bifano testified that he held a connsersation with Paukovitz. Mc-
Donough, and Sheerin, at thejobsite, "herein he suggested that the emplo>-
ees perform the job at an agreed rate per floor
4The record does not establish what pro, isions of the IUn ion's cionstilu-
tion or bylaws piecework would contravene
According to McDonough, however, Kazmeir said that
"he couldn't see any other reason for the layoffs, other
than we were on the executive board, and we wouldn't
work piecework." Kazmeir did not remember his conversa-
tion with McDonough exactly but specifically denied tell-
ing McDonough that he was being laid off because of his
position on the executive board. He further denied saying
anything abthout piecework. I credit Kazmeir. 5
In response to the Commonwealth of Massachusetts Di-
vision of Employment Security "Request for Separation
and Wage Information." Respondent stated that the three
employees were laid off for lack of work. Peter Bifano
credibly explained that it was Respondent's policy to lay
men off in such a way as to allow them to collect unem-
ployment benefits. Several days after the three men were
terminated. Respondent hired approximately four more
lathers. union members, through the union hall.
Following the terminations of McDonough, Flaherty.
and Dolan, Respondent continued to seek the institution
of an incentive system on its Bowdoin School Annex proj-
ect. Peter Bifano spoke with employees Peter Burvill and
Thomas Hickey (who had been transferred to that job).
Burvill recalled that he responded to Peter Bifano's request
by stating that he had heard that there had been trouble at
the other site, to which Bifano replied that the three laid-
off employees had not been working properly. Hickey testi-
fied that Bifano asked them if they knew why the three
men were laid off. When Hickey said that he did not, Bifa-
no stated: "Because they belonged to the [executive] board
and thes didn't want to work piece work." The testimony
of Burvill and Hickey is undenied. However, Burvill, al-
though present when Bifano spoke with Hickey, did not
corroborate Hickey's testimony.
The decision to terminate McDonough, Flaherty, and
Dolan was made by Peter and Joe Bifano on the Friday
before the layoffs. They denied that the layoffs were occa-
sioned by the refusal of the three men to agree to an incen-
tive program and attributed their decision to the failure of
the men to perform the job adequately in terms of both the
quantity and quality of the work performed.
Joe Bifano, Respondent's vice president, did the pricing
and estimating on the South Shore Hospital project and
based Respondent's bid on an expected production of 100
linear feet per man-day. Actual production, however, aver-
aged closer to 68 feet per day. Moreover, according to Kaz-
meir, the quality of the work performed was inadequate:
improper materials were used, studs were installed improp-
erly and walls were out of line.
Paukovitz and the employees denied that their work was
slow or improperly performed. According to Paukovitz, the
employees did the best they could. He admitted that there
were complaints about the work but attributed the comp-
laints to the messv condition of the worksite, the lack of
proper materials, such as studs, with which to work, and to
lKaznleil. ihose demeanor I found ito be impressise. was no longer em-
plohed hs Respondent and had less interest in the outcome of this proceed-
ing than McDonough Additionalls. I note that Kazmeir had not directly
discussed the incentive question with any of these employees prior to their
terlnatinions atld did not refer toi their refusal to work on an incentive basis
or itl their executive hboard status when terminating Dolan or Flaherty. I
therefore deeni it inmpohbable that he would haue made such a damaging
dililssion w hen terminating McDonough.
136
JAMES Ht. BOYL F & SON. IN(
the work of other employees. He had been told that Re-
spondent expected 100 feet per man-day and estimated
that they were producing about 60 feet per da\. Kazmeir
spoke to Paukovitz on a daily basis, and regularly told him
that the work was not progressing fast enough.
Kazmeir reported his difficulties on the job to his superi-
ors, Peter and Joe Bifano. He also threatened to quit unless
more proficient employees replaced these. In addition to
voicing his dissatisfaction to his superior. Kazmeir also
spoke with Sheerin. the Union business agent, as did Peter
Bifano. Both complained to Sheerin about the quality and
quantity of work performed. As a result of their calls.
Sheerin went to the jobsite. Sheerin related management's
concerns with the pace of production to the employees. but
told them not to become too excited because such com-
plaints occurred on every job.
McDonough. Flaherty. and Dolan were replaced hb
other employees referred by the U nion. There is no evi-
dence that those replacements were asked to accept ans
piecework or incentive pay system. The replacements were
quickly terminated, allegedly for the same reason. and
were eventually replaced by union carpenters. According
to Joseph Girard, a member of the Carpenter's Union
hired in June to supervise completion of the work. man,
errors were found in the work which had been perfornmed.
He had to assign several employees just to the correction of
improperly performed work. On a separate floor. doing
work essentially identical to that performed b' the alleged
discriminatees, a team consisting of a journes man and an
apprentice carpenter was able to a erage about 130 feet of
partition per man-day. On other floors. the a erage was
approximately 100 to 110 feet per das.
Girard was hourly paid. He neither worked on an incen-
tive basis nor was he asked to do so.
Based upon all the foregoing. I conclude that General
Counsel has failed to sustain his burden of proving that the
terminations of McDonough. FlahertN. and Dolan were
discriminatorily motivated. It is clear that from the very
start of this project, these employees had failed to fulfill
Respondent's expectations in regard to the amount of work
they performed. Complaints to this effect, and in regard to
the quality of their work, were made to both their immedi-
ate supervisor and their union representative, and were
passed on to them. Kazmeir, a thoroughly credible witness,
testified that he threatened to quit unless they were re-
placed. They were replaced only after discussion with the
union representative and were replaced by other union
members. Moreover, the successful performance of this
work by subsequently hired employees indicates that Re-
spondent's dissatisfaction with their work was not without
some merit.
It is equally clear that Respondent sought the institution
of some form of incentive and that these employees refused
to accede to Respondent's requests. However. I cannot
conclude that the employees' refusals motivated their dis-
charges. Thus, I note that Respondent retained Paukovitz.
whom Kazmeir believed was doing his best, even though
Pauko, itz had not indicated an 3 agreement to an incentive
program. and hired more employees from the same source
without attempting to coerce them into any incentive pro-
gram. It did not. so far as this record reveals. repeat its
request to Sheerin for men willing to do incenti,,e work.
I must further conclude that the Gieneral (Counsel has
failed to sustain the burden of proving that Respondent
tiolalted Section X8a)( I) of the Act bs statements to em-
plo ces attributing the discharges to the Union or protect-
ed aLctl\ itles of the dischairged employees. As noted. I have
credited Kaimeir's testimonial denial that he made such a
statement. I further conclude that Hlickev's testimon,. at-
tribuiting to Peter Bifano an admission that the men were
terminated because thes were members of the executive
hoard and would not do piecework. and Burvill's testi-
mon, that Bifano said that the men were discharged for
not working properly. fail to sustain that burden. Hickey
testified that Bur ill was present when this statement was
made. Burvill did not corroborate Hickey. In the absence
of such immediately available corroboration. I cannot
credit Hlicke\'s testimonv. It is true that Peter Bifano did
not specificall\ deny the statement attributed to him: how-
ever, he did dens the unlawful motivation generally. In the
context of this litigation. that failure to specifically deny
Hickee's testimon, would appear to have been a mere
oversight.
The statement hb Peter Bifano to which Burvill testified.
i.e.. that the men were discharged for working improperly.
is saguel,, ambiguous at best.' A strained interpretation is
required to equate "not working properly" with a refusal to
accept an incentive pay plan. particularly where, as here.
there had been frequent complaints by management about
the quantits and qualit) of the work being performed. In-
deed. the more reasonable interpretation of Burvill's testi-
monn tends to support Respondent's defense of the 8(a)(3)
alleigations. rather than making out an independent viola-
tion of the Act. Therefore. I make the following:
CON('I I S()S OF I AW
Respondent has not violated the Act as alleged in the
complaint.
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 follo sing recommended:
ORDER'
The complaint is dismissed in its entirety.
I tie that hiltc (;enler.al ( 'oun,,el specificall) alleged this .itentenl asi
indepenrdentll , rlll t of the Act, he did not so allege the Li.tletne ll airih-
tied to Blfain hi Ihcke
IIn thre etC It i cixccpnonl are filed .is prorided h' Sec 10246 of the
Rules nld Reula.ilo . te N Ihe \.iii l I abor Relaioitns Board. Ihe findings,
(ioIliutlulln. .nIdl r onllllliended Order herein shhall. as provlded in Sec
11)02 48 of the Rule .inid Rcgulailons. he adopied hb Ihe Board and become
its findings. concluiont. and Order. and all oth'ections Ihereto shall he
deenied valted for .ll purposes
137