Nelcorp

National Labor Relations Board - Board Decisions

Feb 28, 1995

316 N.L.R.B. 625 (N.L.R.B. 1995)

625
316 NLRB No. 108
NELCORP
1 All dates are 1993 unless otherwise indicated.
2 The General Counsel’s request that G.C. Exh. 9, a purported par-
tial transcript of G.C. Exh. 10 which is a tape recording, be entered
into the record is denied. G.C. Exh. 10 is the best evidence. The
General Counsel’s motion to correct the record in several respects
is granted.
3 Respondent admits Rypkema is its supervisor and agent within
the meaning of Sec. 2(11) and (13) of the Act.
Nelson Electrical Contracting Corp., d/b/a Nelcorp
and International Brotherhood of Electrical
Workers, Local Union No. 325, AFL–CIO.
Cases 3–CA–18202 and 3–CA–18297
February 28, 1995
DECISION AND ORDER
BY MEMBERS BROWNING, COHEN, AND
TRUESDALE
On September 21, 1994, Administrative Law Judge
Claude R. Wolfe issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed cross-exceptions and a
brief in support of its exceptions and in opposition to
the General Counsel’s exceptions.
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 exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, 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, Nelson Electrical Contract-
ing Corp., d/b/a Nelcorp, Union, New York, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order.
Thomas J. Sheridan, Esq., for the General Counsel.
Jeffery A. Tait, Esq., for the Respondent.
Richard M. McPherson, Organizer, for the Union.
DECISION
STATEMENT OF THE CASE
CLAUDE R. WOLFE, Administrative Law Judge. This con-
solidated proceeding was litigated before me at Binghamton,
New York, on August 8 and 9, 1994, pursuant to charges
filed by the International Brotherhood of Electrical Workers,
Local Union No. 325 (the Union) on November 1 and De-
cember 22, 1993,1 and a consolidated complaint issued Feb-
ruary 8, 1994, alleging Nelson Electrical Contracting Corp.,
d/b/a Nelcorp (the Respondent) has violated Section 8(a)(1)
of the National Labor Relations Act (the Act) by: (1) threat-
ening a union agent with civil and criminal charges because
he visited Respondent’s jobsites and there engaged in legiti-
mate union activities; and (2) instructing an employee to re-
move union insignia; and further alleging the layoff of David
A. Harageones on November 30 because he engaged in pro-
tected union activity and Respondent’s subsequent refusal to
recall him, thereby discouraging its employees from engaging
in union activities, violated Section 8(a)(3) and (1) of the
Act. Respondent denies it has so violated the Act.
Upon the entire record in this case,2 and after considering
the comparative testimonial demeanor of the witnesses ap-
pearing before me and the posttrial briefs of the parties, I
make the following
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, the Respondent admits, and I find
that, at all times material to this proceeding, the Respondent,
a New York corporation with its principal office and place
of business located in the town of Union and the State of
New York, has been engaged from that place of business in
the building and construction industry as an electrical con-
tractor at various jobsites, and that during the 12 months pre-
ceding the issuance of the consolidated complaint, Respond-
ent, in conducting these business operations, provided serv-
ices from this facility valued in excess of $50,000 to other
enterprises directly engaged in interstate commerce, and has
been engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
At all material times, the Union has been a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Chronology
Harageones, a union member, was requested by Richard
M. McPherson, a union organizer, to seek employment with
the Respondent, a nonunion employer, for the purpose of en-
couraging Respondent’s electricians to become union adher-
ents. Harageones, a licensed electrician, acceded to
McPherson’s request, applied for employment with the Re-
spondent, and was hired and commenced work for Respond-
ent on October 4 at an hourly wage rate of $14. On hire,
Harageones was told by Dean Rypkema, Respondent’s vice
president and overseer of its construction work,3 that Re-
spondent needed a licensed electrician on its project at a re-
tail strip center (Price Chopper job), in Endicott, New York.
Garbade Construction Corporation (Garbade) was the general
contractor on this project, and subcontracted the electrical
work at shops on the strip to the Respondent.
When Harageones started working at the Price Chopper
job, he was supervised by Mark Schabel. On or about Octo-
ber 13, Schabel was transferred to another job, thereby leav-
ing Harageones as the only electrician at the site. Harageones
was then given a wage increase to $15 an hour. He worked
alone until on or about October 20, when electricians Gowen
and Spafford were recalled from layoff and assigned to work
with Harageones at the Price Chopper job. There is no per-
626 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Harageones, a believable and more credible witness than
Rypkema, an occasionally evasive witness, is credited where his tes-
timony conflicts with that of Rypkema.
suasive evidence that Harageones supervised these two men,
who were subsequently laid off on November 1. On or about
that date, Rypkema told Harageones that when the Price
Chopper work was completed he would send Harageones to
another of Respondent’s projects.4
On November 22, Rypkema told Harageones that he hoped
Respondent’s work at the Price Chopper location would be
completed by November 24, and that when it was finished
he would send Harageones to another job or have him do
some work at Rypkema’s home.
On November 24, Harageones, armed with a concealed
tape recorder which Union Organizer McPherson had sup-
plied him, went to Respondent’s shop to secure materials
from Donn Weber, who was then Respondent’s purchasing
agent but has not been shown to have been a supervisor of
Respondent at the time, though he later was elevated to the
position of corporate treasurer, which he held at the time of
the hearing before me. That day, Harageones had, apparently
for the first time, worn a cap bearing the Union’s logo and
a T-shirt similarly imprinted. He was wearing a coat over the
T-shirt, and I find the printing thereon was covered by the
coat and was not visible to Weber or Rypkema, who entered
while Harageones was dealing with Weber. Upon seeing
Harageones’ cap bearing the Union’s logo, Rypkema handed
him a company cap and told him to wear it. Rypkema added
to this adjuration the comment ‘‘You don’t work for the
IBEW.’’ When Harageones replied that he had received the
cap from a friend, Rypkema stated the Company was not
union and the Union harassed Respondent all the time.
Harageones complied with Rypkema’s suggestion, doffed the
union cap, and donned the company cap.
On that same day, after the cap incident, Rypkema told
Harageones he would be assigned another job. No one
worked the next 4 days.
On November 29, Harageones was assigned to work on
another project at Sayre, Pennsylvania, for 1 day. That
evening, Rypkema directed him to return to the Price Chop-
per job on November 30 to complete it. Harageones com-
plied. On the afternoon of November 30, Rypkema, who was
out of town on vacation, called Weber and told him to lay
Harageones off for lack of work. Accordingly, Harageones
was laid off on November 30. On several days thereafter,
Harageones unsuccessfully called Respondent’s office in an
effort to contact Rypkema to request recall to work.
Rypkema was not available while he was on vacation, until
December 6. According to the credible testimony of Holly
Moseley, a secretary and receptionist for the Respondent,
Harageones, prior to making these calls, talked to her on No-
vember 30 after he was advised of his layoff, asked to talk
to Rypkema, who was not there, asked if there was any work
available, and said that although Rypkema had told him the
job was temporary, Harageones needed more work to provide
him with the funds to purchase Christmas presents for his
children.
In late March or early April 1994, Harageones called
Rypkema and asked if he could come back to work.
Rypkema told Harageones to come in and talk to him.
Harageones, who by then had been named in the complaint
as an alleged discriminatee, did not do so. Harageones had
not been recalled to work when he testified before me.
Throughout his employment with the Respondent,
Harageones, at McPherson’s request, kept daily logs detailing
various conversations with other employees and Rypkema,
including the above-described November 24 cap incident.
There is no evidence Respondent knew the logs existed or
suspected Harageones was a union adherent, until
Harageones wore the union cap on November 24.
Respondent was aware, however, that Union Organizer
McPherson had been visiting its jobsites at Price Chopper
and other locations and, in an effort to curb these visits,
caused its attorney to send the following letter to McPherson
on October 27:
Dear Mr. McPherson:
We are writing to you on behalf of our client,
Nelcorp (Nelson Electrical Contracting, Inc.).
Nelcorp officials have reported to us several docu-
mented instances where you have trespassed on private
job sites on which Nelcorp is working. These job sites
include Elizabeth Church Manor in the Town of Dick-
inson, Chesapeake Packaging in the Town of Conklin
and Price Chopper Plaza in the Village of Endicott.
This letter is to advise you that you do not have per-
mission to enter these or any other Nelcorp job sites.
If you do enter these, or any other Nelcorp job sites,
Nelcorp will pursue both civil and criminal charges
against you and your employer.
Your conduct is both dangerous and disruptive. Your
interference with work at the job sites poses a risk of
injury to our employees as well as to you. We are very
attentive to safety on our job sites. Your actions inter-
fere with safety on these job sites.
We appreciate your anticipated cooperation in this
matter.
The Respondent was an electrical subcontractor at the
three jobsites referenced in the letter, not a general contrac-
tor. McPherson visited all three projects and sought and re-
ceived permission from the general contractor at each site to
enter the project grounds. He credibly relates that he visited
Gleason Electric (Gleason) twice a week at the Price Chop-
per site, and that he also talked to Harageones and two more
of Respondent’s employees for a few minutes when he vis-
ited that site (Gleason has a collective-bargaining agreement
with the Union that contains a proviso that the Union’s rep-
resentative ‘‘shall’’ be allowed access at any reasonable time
where employees covered by the agreement are working).
After visiting that jobsite, McPherson called the local code
enforcement agency, who then removed several electricians
from the job. At the Elizabeth Church Manor project, he re-
ceived permission from the general contractor to enter and
make sure Respondent was paying the prevailing wage rate.
While there, he asked Bob Fox, an employee of Respondent,
if he knew what the prevailing wage rate was. At the Chesa-
peake Packaging site, he asked John Nelson, an employee of
Respondent, to join the Union. He wore a hardhat and safety
glasses while on the jobsites. There is no evidence he inter-
fered with work or created a safety hazard on any of the
jobs.
Earlier, in September 1992, McPherson had visited a job-
site where employees of Respondent were working and gave
627NELCORP
5 Two electricians senior to Harageones are still laid off.
Harageones’ testimony is credited that he had worn several caps
bearing logos or messages unlike Respondent’s caps on several occa-
sions prior to November 24 and had not been admonished not to
wear them. Accordingly, I concluded the singling out of the union
cap for adverse commentary and banishment constituted disparate
treatment, and the Respondent violated Sec. 8(a)(1) of the Act by
prohibiting Harageones from wearing a hat bearing the Union’s logo.
Sears Roebuck & Co., 300 NLRB 804 (1990).
6 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.
7 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
Continued
union literature to the Respondent’s foreman. He also met
with Mark Nelson, Respondent’s president, in September
1992 and told Nelson he was now a union organizer and was
interested in Respondent becoming a union company.
B. Discussion and conclusions
The Respondent was aware as early as September 1992
that McPherson was intent on organizing its employees. Its
efforts to exclude McPherson from jobsites, over which Re-
spondent as a mere subcontractor had no overall authority,
for purported dangerous and disruptive conduct, which has
not been shown to have existed, combined with Rypkema’s
conduct on November 24 when he observed the union hat
worn by Harageones, displays Respondent’s continuing antip-
athy toward union activity. Rypkema’s observance of
Harageones on November 24 wearing a cap with the Union’s
logo on it clearly gave him reason to suspect Harageones
was a union adherent. This combination of Respondent’s
antiunion sentiment and its sudden discovery that Harageones
wore a union cap, together with the fact Rypkema had prom-
ised Harageones continued employment at another jobsite or
Rypkema’s home as late as November 22 but did not provide
such employment after the hat incident, are reasons sufficient
to support an inference Harageones’ known or suspected
union sympathies played a part in his layoff and the failure
to reassign him other work as promised.
On the other hand, the Respondent’s records show
Harageones was Respondent’s least senior electrician when
he was laid off. Four senior journeyman electricians were
laid off before Harageones was laid off. One of these four
was recalled for 2 weeks in December 1993 and January
1994, and then again laid off and never recalled. Another
was never recalled. A third was recalled in late April 1994.
The fourth was recalled in May 1994. Yet another senior
electrician was laid off in January 1994 and not recalled until
April 1994. Another was laid off in January 1994 and re-
called in March 1994. Only one new journeyman electrician
has been hired since Harageones was laid off, that being B.
Eccleston, hired on May 31, 1994.
Notwithstanding Rypkema’s intemperate behavior on No-
vember 24, Harageones was given an extra days work at the
Sayre, Pennsylvania project. Respondent’s pattern of continu-
ing and recurrent layoffs of similarly qualified employees
with considerably more employment longevity with Respond-
ent than Harageones is compelling evidence there was no
work for Harageones other than that he might possibly have
performed at Rypkema’s home, which has not been shown
to be other than personal employment by Rypkema. I have
also noted that Harageones elected not to respond to
Rypkema’s offer to meet and discuss employment possibili-
ties with the Respondent, even though Harageones had made
several previous efforts to talk with Rypkema concerning re-
newed employment.
On the whole, by a preponderance of the evidence, I am
of the opinion Respondent has shown that Harageones would
have been laid off and had no reasonable expectancy of re-
call5 even if no union activity had existed. I therefore con-
clude and find the General Counsel has not established by
a preponderance of the credible evidence the layoff and fail-
ure to recall Harageones violated Section 8(a)(3) and (1) of
the Act. In so finding, I have noted Eccleston was not hired,
and Gowen, Nicholas, Olmsted, Spafford, and Peppin (all
electricians senior to Harageones) were not recalled to work
until after Harageones declined to meet with Rypkema even
though Harageones had been seeking such a meeting.
An employer may, absent certain special circumstances,
bar nonemployee organizers from its property. Lechmere,
Inc. v. NLRB, 502 U.S. 527 (1992). An employer may not,
however, bar such access to property that is not the employ-
er’s to control. Payless Drug Stores, 311 NLRB 678 (1993);
Lechmere, Inc., 308 NLRB 1074 (1992); and Johnson &
Hardin Co., 305 NLRB 690 (1991). The Respondent was a
subcontractor on the jobsites from which its lawyers sought
to exclude McPherson. It was itself present at these sites by
virtue of its agreement with the general contractors, who
were there by virtue of their agreement with the property
owners. The effort to bar McPherson is therefore far too
broad. The general contractors gave McPherson express per-
mission to enter the jobsites and act as he did. There is no
evidence his presence created any dangerous or disruptive
conditions or posed a risk of injury to employees or himself.
The effort to bar him from all three jobsites on threat of civil
and criminal prosecution exceeds the Respondent’s authority
because it does not have sufficent control over those prop-
erties to validate its effort to exclude him. Accordingly, I
conclude and find the Respondent’s threat and effort to bar
McPherson violated Section 8(a)(1) of the Act.
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. By prohibiting an employee from wearing a union cap,
Respondent violated Section 8(a)(1) of the Act.
4. By threatening to take civil and criminal action against
a union representative for entrance onto property which it
does not control, the Respondent violated Section 8(a)(1) of
the Act.
5. The above-unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
6. The Respondent did not violate Section 8(a)(3) and (1)
of the Act by laying off and refusing to recall Harageones
as the complaint alleges.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
628 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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.’’
ORDER
The Respondent, Nelson Electrical Contracting Corp.,
d/b/a Nelcorp, Union, New York, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Threatening to bring civil and/or criminal charges
against union representatives for entering onto property it
does not control.
(b) Prohibiting employees from wearing union caps.
(c) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of rights guar-
anteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its Union, New York office and facilities, cop-
ies of the attached notice marked ‘‘Appendix.’’7 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 imme-
diately 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 Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(b) 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 threaten to bring civil and/or criminal
charges against representatives of International Brotherhood
of Electrical Workers, Local Union No. 325, AFL–CIO, or
any other union, for entering onto property we do not con-
trol.
WE WILL NOT prohibit our employees from wearing caps
bearing the Union’s logo.
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.
NELSON ELECTRICAL CONTRACTING CORP.,
D/B/A NELCORP