Laborers Local 373 (Arrow Enterprises)

National Labor Relations Board - Board Decisions

Dec 2, 1986

282 N.L.R.B. 347 (N.L.R.B. 1986)

LABORERS LOCAL 373 (ARROW ENTERPRISES) 347
Laborers' International Union of North America,
Local No. 373, AFL-CIO (Arrow Enterprises)
and Charles G. Grodes. Case -6-CB-7014
2 December 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 6 August 1986 Administrative Law Judge
James L. Rose issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filled an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to, a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings," and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Laborers'
International - Union of North America, Local No.
373, AFL-CIO, Pittsburgh, Pennsylvania, its offi-
cers, agents, and representatives, shall take the
action set forth in the Order.
1 The Respondent has excepted to some of the judge 's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge 's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products, 91 NLRB 544 (1950), eafd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
There is an ambiguity in the first sentence in sec. II,B, of the judge's
decision. It is more accurate to state that in the absence of a lawful exclu-
sive hiring hall , agreement, there is little question that when a labor orga-
nization causes or attempts to cause an employer not to hire an employee
because of conduct protected by Sec, 7 of the Act, it violates Sec.
8(b)(2).
Michael Poprik Esq., for the General Counsel.
Stephen M. Schmerin, Esq., of Pittsburgh, Pennsylvania,
for Respondent Local 373.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. This
matter was tried before me on 9 June 1986, at Pittsburgh,
Pennsylvania, on the General Counsel's complaint which
alleged that the Respondent labor organization engaged
in violations of Section 8(b)(l)(A) and (2) of the Labor
Management Relations Act, 29 U.S.C. § 151 et seq., by
attempting to cause and causing Arrow Enterprises to
refuse employment to Charles G. Grodes, t the Charging
Party, for reasons proscribed by the Act.
The Respondent generally denied the allegations in the
complaint and contends that none of its officers or agents
engaged in any conduct violative of the Act with regard
to the employment, of Grodes for Arrow Enterprises,
On the record as a whole,2 including my observation
of the witnesses, briefs, and arguments of counsel, I issue
the following
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. JURISDICTION
Arrow Enterprises (Arrow, the Employer, or the
Company) is a partnership owned jointly by Stan R. and
Bernadine Kraly. Arrow is engaged in the construction
industry principally performing demolition, sandblasting,
painting, excavation, and the like. Until 1 June 1985,
Arrow had its principal office and place of business in
Pennsylvania, but since that date has operated out of
Stewart, Florida. Arrow continues to perform services in
the construction industry in Pennsylvania and Massachu-
setts.
The undisputed evidence of record shows that Arrow
performed services under a subcontract with Na-Con
Services, Inc. of Norcross, Georgia, from July through
October 1985 in the amount of '$52,178, at a project in
Massachusetts. Further, the evidence shows, among
other things, that Arrow performed services from Janu-
ary through March 1986 in the amount of $90,000, under
a subcontract from Tedco Construction Company of
Carnegie, Pennsylvania, to do demolition work in Brid-
geville, Pennsylvania (the project at which the events in-
volved in this dispute occurred).
The undisputed evidence in this matter establishes that
Arrow Enterprises is an employer engaged in interstate
commerce in that , at a minimum, it performed services in
excess of $50,000 per annum directly in States other than
the State of its principal office. I therefore find and con-
clude that Arrow Enterprises is an employer engaged in
interstate commerce within the meaning of Section 2(6)
and (7) of the Act.
Laborers' International Union of North America,
Local No. 373, AFL-CIO (the Respondent or, the
Union), is admitted to be, and I find is,, a labor organiza-
tion within the meaning of Section 2(5) of the Act.. The
evidence further establishes that in 1986, at least, mem-
bers of the Union worked for Arrow Enterprises, and in
connection with such employment were represented by
the Union. Accordingly, I conclude that the Union is,
for purposes of this case, a labor organization represent-
ing employees engaged in interstate commerce, and that
the Board has jurisdiction over the alleged unfair labor
practices.
1 The caption is amended to reflect an amendment to the complaint
made at the hearing deleting any reference to One-Way Welding.
2 Counsel for the General Counsel moved to correct the transcript.
Without objection, the transcript is corrected as indicated at Appendix B
[omitted from publication].
282 NLRB No. 53
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
In late January 1986,3 Arrow began work as a subcon-
tractor for Tedco in Bridgeville, Pennsylvania, to do
demolition work. The project lasted about 6 weeks.
According to the credible testimony of Stan R. Kraly,
a co-owner and field superintendent for Arrow, on 22
January Charles G. Grodes called his office and asked
for a job. Kraly told Grodes to come to the project, that
he would talk to him. -Grodes arrived about 11 p.m. that
evening. Kraly interrogated Grodes about his experience
with the kind of work Arrow was doing. Kraly testified
that Grodes gave the right answers , and then,
I said, okay, well, how do you get along with the
union, and John and everyone meaning-I meant
John McManus the Union's, president). And, he
said, well, we've had our problems but everything's
okay. So, as -soon as he said that, I decided I'd
better talk to the union before I hired him.4
Kraly went on to testify that the next morning he
called McManus, telling him that Grodes' had come out
looking for a job and that he would like to hire Grodes.
Kraly testified, "And, John said, no way, no way, he's
problems, he's got charges against the Local."
Although Arrow did not have a contract with the
Union, Kraly nevertheless called the Union, out of cour-
tesy and also because the general contractor stated that
he did not want any union problems. Also, apparently, a
related company owned or operated by Kraly does have
a contract with the Union, -and in the past Kraly has op-
erated union projects and, even,on the project here, paid
union wages.
Kraly testified that he refused to hire Grodes follow-
ing the conversation with McManus because "I was ex-
posing myself to problems if I hired him that I really
didn't feel I, could afford, and the customers wouldn't
tolerate." Thereafter Kraly told Grodes he ,would not be
hired because of problems with the Union, which Grodes
revealed to Kraly as being "some sort of charges."
'Thereafter Kraly in fact hired other laborers. Then on
the 'night of 14 February Grodes came back, asked how
the job was going, and asked if Kraly needed any help
that night-that he was willing to work. The union stew-
ard, James O'Leary, took Kraly aside and "he said, basi-
cally, that I really ought to think twice about it [hiring
Grodes] ° because Grodes is a problem and he gets in
fights on the job and he'll steal things and he's just a
problem."
Although Kraly said at the time that he could not hire
Grodes because he had not brought his checkbook, in
fact he testified that he did not hire Grodes because he
could tell that in the intervening 2 weeks there had been
no change in the Union's attitude toward Grodes.
McManus testified, denying the statement attributed to
him by Kraly, although admitting that Kraly in fact
a All dates are in 1986 unless otherwise indicated.
a Though Grodes' version of this discussion differs in some respects,
such are not material , and in any event , I rely on the testimony of Kraly
in making the findings herein.
called him concerning Grodes. O'Leary similarly denied
the substance of Kraly's testimony concerning Grodes,
but did testify generally to the conversation.
In evidence is a charge, dated 9 December 1985, by
Grodes against McManus in connection with the way
McManus, as president, conducted a union meeting on 3
December 1985.
Although the Union does operate a hiring hall, it is
not exclusive. It is permissible for members to solicit and
obtain their own employment. Grodes was at all times
material a member in good standing of the Union.
B. Analysis and Concluding Findings
There is little question that when a labor organization
causes, or attempts to cause an employer not to hire an
employee, it violates Section 8(`X2) of the Act, absent a
lawful exclusive hiring hall agreement or practice. Car-
penters Local 1066 (Bertram Construction Co.), 272 NLRB
539 (1984). Further, it is clear that dissident intraunion
activity, such as filing charges against a local's president,
is protected by Section 7 of the Act and retaliation by
union officials against a member for having engaged in
such activity is violative of Section 8(b)(1)(A). See, e.g.,
Glenn Machine Works, 277 NLRB 658 (1985).
For the Union to cause, or attempt to cause, an em-
ployer not to hire Grodes was a violation of Section
8(b)(2), and for the Union to have engaged in such activ-
ity in order to retaliate against him because he filed in-
traunion charges necessarily was violative of Section
8(b)(1)(A). These legal principles are well established.
The only question of substance in this case is whether
McManus told Kraly, in effect, not to hire Grodes, and
why. Notwithstanding McManus' disclaimer, I conclude
he suggested to Kraly not to lure Grodes because
Grodes had filed charges.
I found Kraly's demeanor to be positive. His testimony
was straightforward, without evasiveness or equivoca-
tion, and so far as can be determined from this record, he
was a neutral and unbiased witness. Comparing Kraly's
positive demeanor with McManus', I conclude that
Kraly was more believable and that their discussion oc-'
curred in substance as testified to by Kraly. I, specifically
discredit McManus' denial.
Subsequent to the events in this case, Kraly and the
Union had some kind of a dispute involving payments to
a fridge benefit fund. Nevertheless, there is nothing in
the examination of Kraly, or the event, which would
suggest to me that Kraly did not give honest and candid
testimony with regard to the events of this case.
I therefore believe and conclude that about 23 Janu-
ary, on inquiry by Kraly, McManus told him not to hire
Grodes because "he's problems, he's got charges against
the local."
In addition, I find that Kraly's version of his conversa-
tion about 14 February with O'Leary, involving hiring
Grodes, was substantially as testified to by Kraly. At the
time, O'Leary was an employee but was also an agent of
the Union in that he was the job steward. Thus, to the
extent O'Leary indicated to Kraly that Grodes should
not be hired, he was acting as an agent for the Union
LABORERS LOCAL 373 (ARROW ENTERPRISES) 349
and at least gave Kraly to believe that the Union's-posi-
tion with regard to Grodes had not changed.
In ,sum, I conclude that when the opportunity arose,
the Union, speaking through its president in the first in-
stance, and subsequently the job steward, attempted to
cause, and in fact did cause Arrow not to hire Charles
Grodes because Grodes had engaged in activity protect-
ed by Section 7 of the Act. I conclude that the activity
engaged in by the Union with regard to the employment
of Grodes in January and February 1986 was violative of
Section 8(bXl)(A) and (2) of the Act, and an appropriate
remedy will be recommended.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices found above, occurring in
connection with the Union 's representation of employees
of employers engaged in interstate commerce, have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States, and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow thereof within- the meaning of
Section 2(6) and (7) of the Act.
IV. THE REMEDY
Having concluded that the Respondent Union attempt-
ed to cause and caused Charles G. Grodes not to be
hired by Arrow Enterprises, I shall recommend that the
Respondent notify Arrow in writing, with a copy to
Grodes, that it has no objection' to the hiring of Grodes
and that it requests Grodes be hired. The Respondent
shall be ordered to make whole Grodes for any loss of
wages or other rights, and benefits he may have suffered
as a result of its action, until Grodes has been hired by
Arrow or obtains substantially equivalent employment
elsewhere, in accordance with the formula set forth in F.
HW Woolworth Co., 90 NLRB 289 (1950), with interest as
provided for in Florida Steel Corp., 231 NLRB 651
(1977). See generally Isis Plumbing Co., 138 NLRB 716
(1962).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed5
have engaged in activity protected by Section 7 of the
Act.
(c) In any like or related manner restraining or coerc-
ing employees in the exercise _ of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessarey to
effectuate the policies of the Act.
(a) Make whole Charles G. Grodes for any losses of
wages or other rights and benefits that he may have suf-
fered as a result of the Respondent's action with refer-
ence to his employment for Arrow Enterprises, com-
mencing 23 January 1986, in the manner set forth in the
remedy section above.
(b) Notify Arrow that it has no objection to its hiring
Charles G. Grodes and requests that Arrow do so.
(c) Post at its Local 373 offices and meeting halls
copies of the attached notice marked "Appendix."6
Copies of the notice, on forms provided by the Regional
Director for Region 6, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(d) Furnish the Regional Director sufficient signed
copies of the attached notice for posting at the premises
and projects of Arrow Enterprises, if it is willing.
(e) Notify the Regional Director for Region 6, in writ-
ing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply. For the pur-
poses of determining or securing compliance with this
Order, the Board, or any of its duly authorized repre-
sentatives, may obtain discovery from the Respondent,
its officers, agents, and representatives, or assigns, or any
other person having knowledge concerning any compli-
ance matter, in the manner provided by the Federal
Rules of Civil Procedure. Such discovery shall be con-
ducted under the supervision of the United States court
of appeals enforcing this Order 'and may be had upon
any matter reasonably related to compliance with this
Order, as enforced by the court.
ORDER
The Respondent, Laborers' International Union of
North America, Local No. 373, AFL-CIO, its officers,
agents, and representatives, shall
1. Cease and desist from
(a) Restraining or coercing employees in the exercise
of the rights guaranteed them by Section 7 of the Act,
which includes the right to file intraunion charges
against officers of the Union.
(b) Causing or attempting to cause any employer to
discriminate against potential employees because they
8 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations , the findings, conclusions, and recommended
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 pur-
poses.
B 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 Nation-
al 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT restrain or coerce our members in the
exercise of rights guaranteed them by Section 7 of the
National Labor Relations Act, including the filing of in-
traunion charges against officers of the Local Union.
WE WILL NOT cause or attempt to cause any employer
not to hire or otherwise discriminate against our mem-
bers because they engage in any activity protected by
Section 7 of the Act.
WE WILL NOT in any like or related manner restrain or
coerce our members in the exercise of the rights guaran-
teed them by Section 7 of the National Labor Relations
Act.
WE WILL make whole Charles G. Grodes for any
losses of wages or other rights and benefits he may have
suffered as a result of our causing Arrow Enterprises not
to hire him on 23 January 1986, with interest, until, he
has been hired by Arrow or obtains substantially equiva-
lent employment elsewhere. -
WE WILL notify Arrow Enterprises, with a copy to
Charles G. Grodes, that we have no objection to its
hiring Charles G. Grodes and we request that it do so.
LABORERS' INTERNATIONAL UNION OF
NORTH AMERICA, LocAL No. 373, AFL-
CIO