Pile Foundation Construction Co.

National Labor Relations Board - Board Decisions

Mar 10, 1981

254 N.L.R.B. 1305 (N.L.R.B. 1981)

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PILE FOUNDATION CONSTRUCTION
WE NOT refuse to recall from layoff
Edward H. Case 29-CA-7589 our employees because they engage in concert-
ed activity for their mutual aid or protection
March 10, 1981 as is their right under Section 7 of the Nation-
DECISION AND ORDER al Labor Relations Act.
Pile Foundation Construction Company, Inc.
On September 25, 1980, Administrative Law
Judge James L. Rose issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and counsel for
General Counsel filed an exception to the Adminis-
trative Law Judge's Decision.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings,
and conclusions of the Administrative Law Judge
and to adopt his recommended
ORDER
Pursuant to Section 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 Respondent, Pile Founda-
tion Construction Company, Inc., New York, New
York, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order, except that the attached notice is
substituted for that of the Administrative Law
Judge.
The Charging name appears as amended at the hearing.
Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
an administrative law judge's resolutions with respect to
unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are Incorrect. Standard Dry Wall Products,
91 NLRB 544 enfd. 188 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
for General Counsel excepts to the Administrative Law
Judge's failure to include in the notice to employees a provision that
cease and desist from "threatening employees with discharge
they engage in activity on behalf of the Union or other protected
activity." We find merit in this exception. Inasmuch as the above lan-
guage is included in the recommended Order, it appears that the failure
include it in the proposed notice was Accordingly, we
modify the proposed notice to include the above-quoted language.
APPENDIX

NOTICE TO EMPLOYEES

POSTED BY OF THE

National Labor Relations Board

An Agency of the United States Government

After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
254 NLRB No. 177
WE WILL NOT threaten employees with dis-
charge should they engage in activity on
behalf of the Union or other protected activi-
ty.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL offer immediate reinstatement to
Edward Sudbrink and Walter Degen to their
former jobs or, if those jobs no longer exist, to
substantially equivalent positions of employ-
ment and WE WILL make them whole for any
losses they may have suffered as a result of
our refusal to recall them, with interest.
DECISION
JAMES L. ROSE, Administrative Law Judge: This
matter was heard before me on July 14 and 15, 1980, at
Brooklyn, New York, upon the General Counsel's com-
plaint which alleges principally that on November 5,
1979, the Respondent laid off and refused to recall two
of its employees in violation of Section and (1) of
the National Labor Relations Act, as amended, 29 U.S.C.
et seq.
The Respondent generally denies the substantive alle-
gations of the complaint although admitting that on Oc-
tober 30, 1979, it did lay off the two employees in ques-
tion. It contends, however, that neither the layoffs nor
the failure to recall these two employees was in any way
violative of the Act, and that in any event the Respond-
ent's business does not meet the Board's jurisdictional
standards.
Upon the record as a whole, including my observation
of the witnesses, and the briefs and arguments of counsel,
I hereby make the following:
FINDINGS OF FACT A N D CONCLUSIONS OF LAW
I . JURISDICTION
The Respondent is a New York corporation engaged
in the business of providing and performing pile driving
and related services at various construction projects,
principally in and around the New York City area.
In 1979, the Respondent purchased through Davidson
Pipe Supply, Inc., a distributor of pipe valves and fit-
tings, worth of pipe and pipe fittings manufac-
tured either in Ohio or Pennsylvania. This material was
shipped directly from either Ohio or Pennsylvania to the
106 1)ECISIONS LABOK HOARD
Ilavidson
delivered
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$50,000.
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I OF NATIONAL RELATIONS
warehouse in New York City and was in turn
by Davrdson to the Respondent. It is unknown,
however, when the pipe was actually delivered to
vidson inasmuch as it came out of inventory. Prior to de-
livery, Davidson did some welding on the pile thus in-
creasing its value, to an extent unknown from this
record. Nevertheless, the best estimate is that the value
of material shipped from out of State to the Respondent
in 1979 exceeded
In addition, in 1979, the Respondent purchased
through Browne Bryant Lumber Company, a whole-
sale lumber dealer, $163,952.41 worth of treated wood
piling which was shipped directly to the Respondent
from a treating plant in Hainesport, New Jersey.
Although there is some question concerning how
much the Respondent paid for the items it purchased and
received in 1979, it is clear that the Respondent did
order and receive directly from points outside the State
of New York materials valued in excess of $50,000. In
addition, it received indirectly from outside the State of
New York materials valued in excess of Accord-
ingly, I conclude that the Respondent does meet the
Board's jurisdictional standards for both direct and indi-
rect inflow and I conclude that the Respondent was at
all times material herein an employer engaged in inter-
state commerce within the meaning of Section
and (7) of the Act.
THE LABOR ORGANIZATION INVOLVED
Dockbuilders Local 1456, United Brotherhood of Car-
penters and Joiners of America, AFL-CIO, is an organi-
zation which admits to membership individuals who
work in the construction industry as dockbuilders (pile-
drivers), some of whom work for the Respondent and
have for many years. The Union represents these em-
ployees and in fact has, through the District Council of
Carpenters, negotiated successive collective-bargaining
agreements with the General Contractors Association of
New York; members of the General Contractors Associ-
ation, including the Respondent, have become parties to
those contracts, the time of the events litigated in this
matter. I therefore conclude that the Union is, and all
times material herein has been, a labor organization
within the meaning of Section of the Act.
THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Robert E. Stuhler is the sole owner and president of
the Respondent. In addition to Stuhler, the Respondent
employs on a permanent basis an clerk and "more
or less one or another foreman." The Respondent is a
pile driving contractor; when it has jobs to perform, it
hires a crew of dockbuilders as well as a crane operator
and oiler. Stuhler testified that his jobs average about 2
or 3 days; however, he occasionally has a large job, such
as the KLM terminal at the John F. Kennedy airport
which lasted about 2- months.
A work crew traditionally consists of a working fore-
man, who is in charge of the Respondent's operation at
the and four crewmembers. At the times material
herein, John Rosati was the foreman. He was hired by
the Respondent in July or August and became the fore-
man in September. During the times material the crew
consisted of the two alleged discriminatees, Edward
brink and Walter Degen, as well as James McHugh and
George Mitchell. Although Stuhler testified that during
1979 he employed between 30 and 40 dockbuilders and
had apparently the only employees from at least Septem-
ber through November.
It also appears that, at least during the times material,
the Respondent did not have work to keep a
full crew employed hours each week. For instance,
during the 4 weeks between the payroll period ending
September 24 to October 15, Sudbrink worked only 7
days, and in 1 week had no work at all. In this respect, i t
might be noted, Sudbrink testified that he was laid off
for a month from late September to late October, which
substantially corresponds to Stuhler's testimony from his
records.
Sudbrink was appointed shop steward by the vice
president and business agent of the Union.
During October the Respondent had four small jobs.
While there is some dispute about the manning require-
ments when rigging the crane and when the piledriver is
in operation, the parties agree that on these jobs
brink complained that the Respondent was not following
the contract. On one occasion Degen refused to cut piles
when told to do so by Foreman Rosati because such
would have left the crew short one man. On two occa-
sions, Sudbrink called Arthur the union business
representative, who later came to the project in question.
Rosati and Stuhler agreed that complaints about short
manning were made by Sudbrink.
In late October, the yard" job ended and
brink and Degen were sent back to the Fink's Bakery
project to cut tops off piles (which had not been done
because of the manning dispute). They then,
apparently, were going to go on to the KLM project at
Kennedy airport. However, start of that project was de-
layed by the Government (presumably the FAA). Thus,
on the evening of November 1, they were told by Rosati
not to report to Kennedy. And on Sunday, November 4,
Rosati called them to say that the project had been post-
poned indefinitely and they would be laid off.
The FAA apparently reversed its position to allow the
construction equipment to be moved onto the project.
Thus Stuhler testified that on Monday, November 5, he
instructed Rosati to hire a new crew. They rehired
and Mitchell but, instead of recalling Sudbrink
and Degen, the Respondent hired two other
builders who, according to Stuhler, had worked for the
Respondent some years in the past and whom Stuhler
to be capable workers.
On Monday, November 5, Sudbrink and Degen went
to the Respondent's yard to get their paychecks and
learned that a new crew was being formed and the KLM
work was going forward. The next day they went to the
project and talked to Rosati, asking him what the prob-
lem was and, stating that they were "claiming" their
jobs. They then contacted the Union and on Wednesday,
went to the KLM project.
PILE
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1307 FOUNDATION CONSTRUCTION
confronted Rosati asking him why the
had not rehired Sudbrink and Degen.
testified, "Well, he [Rosati] says, it comes from the
office-they were troublemakers, he said, but I don't
want to say nothing because I'll get in trouble." This
statement attributed to Rosati by is undenied by
Rosati. Rosati testified that Stuhler had told him to hire
the two new employees and specifically not to hire
brink and Degen. Rosati testified that in response to
kins, asking why they changed the crew, "I said, we
changed because we decided to hire different people."
B. Analysis and Concluding Findings
The refusal to recall
Neither the collective-bargaining agreement, industry
practice, nor the National Labor Relations Act prohibits
the Respondent from hiring whomever it chooses, unless
the determination not to hire a specific individual is mo-
tivated by that individual's having engaged in protected
concerted or union activity. If a company in fact dis-
charges, o r refuses to rehire, an individual because he is
engaged in protected activity then such is discrimination
within the meaning of the Act and is violative of Section
and (3). Such I conclude was the case here.
Sudbrink and Degen had worked for the Respondent
several months during which they had been laid off and
recalled. There was no complaint about their work and
both had been journeymen in the industry for more that
10 years.' N o very good reason was given why they
were not recalled on November 5; and no reason at all
was advanced why Mitchell, who was junior in line of
service, was recalled.
Stuhler testified, in an apparent attempt to minimize
the work rule complaint by Sudbrink, that these prob-
lems come up occasionally, although he did state that
there had been only three or four in 1979, three of which
were in late October initiated by Sudbrink.
Stuhler testified that he did not tell Rosati not to
rehire Sudbrink and Degen. Rather, when forming the
new crew, he told Rosati to hire the two new individuals
whom he knew to be out of work and who had been
good workers for him some years in the past.
Although initially agreeing with Stuhler's version,
Rosati subsequently testified that Stuhler affirmatively
told him not to rehire Sudbrink and Degen. In any
event, how it came about that Sudbrink and Degen were
not recalled is more a matter of emphasis than substance.
They had been working for the Respondent, had been
laid off in the past and recalled, and this time were not.
T o replace them is, of course, permissible unless motivat-
ed by their union or other activity protected by the Act.
Nor is the Company required to act rationally o r consist-
ently. However, where the Respondent does not d o so
such may raise the inference that the true motive is un-
lawful. Mining Corporation v. L.R. B.,
Stuhler testified that the general contractor of the Fink's Bakery pro-
ject had some kind of criticism of Degen; however, even Schuler testified
that such criticism is common and usually the problem goes away. Thus.
cannot conclude, nor does the Respondent contend, that poor work
performance was a factor in the determination not to recall Sudbrink and
Degen.
362 466 (9th Cir. 1966). In short, Stuhler's self-serv-
ing denial need not be accepted at face value.
The only conceivable explanation for Stuhler's deter-
mination not to recall Sudbrink and Degen, where he
had done so in the recent past, is the fact that Sudbrink
had complained about work rule violations in which
Degen had joined. This inference is supported by direct
evidence.
credible and undenied testimony is that Rosati
told him that Sudbrink and Degen had not been rehired
because they were "troublemakers." The only area of
"troublemaking" was the work rule complaints.
Finally, I specifically discount Stuhler's claim that
"the others were better qualified and better known to
us." They had not worked for the Respondent for some
years. And at best Stuhler's testimony was vague and
conclusionary.
I therefore conclude that, on November 5 when the
Respondent determined to reform a crew for the KLM
project, Stuhler affirmatively determined not to recall
Sudbrink and Degen because of their activity in connec-
tion with crew manning when rigging up or rigging
down the machine and when the machine was in oper-
ation.
It is questionable whether o r not the contract requires
a four-man crew and a foreman at all times while the
machine is being rigged and during some portions of op-
eration. Nevertheless, such is an interpretation of the
contract which not even Stuhler disputed. In any event,
crew manning is certainly a condition of employment
and the employees' activity relating to it certainly was
carried on in a concerted manner.
I therefore conclude that the activity engaged in by
Sudbrink and Degen was protected, concerted activity
within the meaning of Section 7 of the Act. T o discrimi-
nate against them because they engaged in such activity
was violative of Section and, to the extent that it
was also related to the Union and enforcing the contract,
was violative of Section as well. By refusing to
recall Sudbrink and Degen on November 5, because they
had protested the Respondent's manning, the Respondent
violated Section and (3) of the Act.
2. The alleged threats
It is alleged that on October James Brodkin, who is
alleged a professional engineer and supervisor for
the threatened The overwhelm-
ing in this matter is Brodkin was not an
employee of, o r in any way compensated by, the Re-
spondent. At the times material hereto, he was employed
by the owner of the building on which the Respondent
was a subcontractor and was representing the owner's in-
terest. His responsibility was to insure that the Respond-
ent performed correctly. While Brodkin was at the
site and had some general supervisory authority, he
never acted in any agency capacity on behalf of the Re-
spondent. There is no evidence the Respondent did any-
thing which imbued Brodkin with the authority (actual
o r apparent) to act on its behalf; nor is there any evi-
dence that the Respondent acquiesced in the statements
Brodkin made which are the alleged violations. I
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I DECISIONS OF NATIONAL
fore conclude that whatever statements Brodkin may
have made cannot be attributed to the Respondent.
It is similarly alleged that, on October 26, Rosati
threatened employees by stating "that if we kept on
complaining he's going to get rid of us and hire a new
gang." This is from the generally credible testimony of
Degen. While this was apparently denied by Rosati, I
find that Degen's more detailed testimony concerning
this event is more accurate than Rosati's general denial.
Inasmuch as Rosati did have supervisory authority and
was in fact in charge of the project at the time this oc-
curred, I must conclude that such a statement amounts to
a threat of discharge for engaging in protected activity
and is therefore violative of Section of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES

UPON COMMERCE

The unfair labor practices found above, occurring in
connection with the Respondent's business, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce within the meaning of Section
and (7) of the Act.
V . REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I shall recommend that it
cease and desist therefrom and take appropriate
tive action including offering Edward Sudbrink and
Walter Degen reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent po-
sitions of employment, and make them whole for any
wages and other benefits they may have lost as a result
of the discrimination against them in accordance with
the formula set forth in Woolworth Company, 90
NLRB 289 with interest as provided for in Flor-
ida Steel Corporation, 231 NLRB 65
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this matter, and pursuant to
the provisions of Section of the Act, 1 hereby make
the following recommended:
The Respondent, Pile Foundation Construction Com-
pany, Inc., New York, New York, its officers, agents,
successors, and assigns, shall:
See. generally, Plumbing Heating 138 NLRB 716 (1962).
the event no exceptions are filed as provided by 102.46 of the
Rules and Regulations of the National Labor Relations Board, the
conclusions. and recommended Order herein shall, as provided in
LABOR RELATIONS BOARD
1. Cease and desist from:
(a) Refusing to recall from layoff o r otherwise discrim-
inating against employees because they have engaged in
concerted activities protected by Section 7 of the Na-
tional Labor Relations Act o r have engaged in activity
on behalf of the Union.
(b) Threatening employees with discharge should they
engage in activity on behalf of the Union or other pro-
tected activity.
(c) In any like o r related manner interfering with, re-
straining, o r coercing employees in the exercise of the
rights guaranteed them by Section 7 of the
2. Take the following affirmative action:
(a) Reinstate Edward Sudbrink and Walter Degen to
their former jobs or, if those jobs no longer exist, to a
substantially equivalent position of employment, and
make them whole for any wages and other benefits they
may have lost as a result of the discrimination against
them, with interest.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of due
under the terms of this Order.
(c) Post at its New York copies of the attached
notice marked Copies of said notice, on
forms provided by the Regional Director for Region 29,
after being duly signed by the Respondent's authorize
representative, shall be posted by the Resppondent im-
mediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, o r covered by any other material.
(d) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
FURTHER RECOMMENDED that the allegations of
the complaint not specifically found herein are dismissed.
102.48 of the Rules and Regulations, conclusions and Order, and all
objections thereto shall be deemed waived for all purposes.
The acts of the Respondent in this matter do not demonstrate a pro-
clivity to violate the the Act; the narrow injunctive order is appro-
priate 242 NLRB 1357 (1979).

In the event that this Order is enforced by a Judgment of a United

Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read Pursu-
ant to a Judgment of the United States Court of Appeals an
Order of the National Labor Relations Board