Star Drywall Co.

National Labor Relations Board - Board Decisions

Aug 27, 1991

304 N.L.R.B. 687 (N.L.R.B. 1991)

687
304 NLRB No. 86
STAR DRYWALL CO.
1 The General Counsel 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), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing the findings.
We correct the judge’s inadvertent error in the eighth paragraph of the
‘‘Conclusions’’ section in the supplemental decision: the date of the walkout
was May 10, 1989, not March 10, 1989. Additionally, the record reflects that,
contrary to the judge’s statement in the first sentence of the paragraph entitled
‘‘(2) Duclersaint’s Knowledge of Charon’s Union Activity’’ in the supple-
mental decision, Duclersaint was aware that employees Quigley and Charon
talked to the Union on Wednesday, May 10, 1989, during the walkout.
2 We agree with the judge’s conclusion that there is no violation. Assuming
arguendo that the General Counsel established a prima face case, we find that
the Respondent met its burden under Wright Line, 251 NLRB 1083 (1980).
Thus, the Respondent established that Charon had been warned in the past for
his poor work performance. When Charon was warned again on May 22,
1989, for his poor work performance and his failure to bring proper tools to
the job, he responded by arguing and raising his voice and eventually chal-
lenging Duclersaint, the Respondent’s owner, to terminate him. Under these
circumstances, the Respondent has established that even in the absence of
Charon’s union activity, the Respondent would have terminated Charon.
1 All dates herein are in 1989.
2 The General has also under date of December 11, moved to reopen the
hearing and receive an addition to the formal exhibits here. In view of my
disposition of this case, I do not feel it is necessary to reopen the hearing or
receive the proffered exhibits. The motion, therefore, is denied.
Star Drywall, Plaster & Painting Company and
Painters District Council No. 35, International
Brotherhood of Painters and Allied Trades,
AFL–CIO. Case 1–CA–26402
August 27, 1991
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On April 5, 1990, Administrative Law Judge George
F. McInerny issued the attached decision. The General
Counsel filed exceptions and a supporting brief. On
September 25, 1990, the Board, in an unpublished
Order, remanded the case to the judge for further con-
sideration of factual matters not addressed in the deci-
sion and for analysis of the 8(a)(3) allegation of the
complaint. The judge was instructed to make additional
findings, conclusions of law, and a recommended
Order based on those findings and conclusions.
On January 28, 1991, the judge issued the attached
supplemental decision. The General Counsel filed ex-
ceptions and a supporting brief.
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 sup-
plemental decision and the record in light of the excep-
tions and briefs and has decided to affirm the judge’s
rulings, findings,1 and conclusions2 and to adopt the
recommended Order.
ORDER
The recommended Order of the administrative law
judge in his decision and supplemental decision is
adopted and the complaint is dismissed.
Benjamin Smith, Esq., for the General Counsel.
Mr. Arnold Duclersaint, of Somerville, Massachusetts, pro
se, for the Respondent.
Mr. William F. Murphy, of Dorchester, Massachusetts, Orga-
nizer, for the Charging Party.
DECISION
GEORGE F. MCINERNY, Administrative Law Judge. Based
upon a charge filed on May 23, 1989,1 by Painters District
Council No. 35 (the Union), the Regional Director for the
Region 1 of the National Labor Relations Board (the Board)
issued a complaint on July 25, alleging that Star Drywall,
Plaster & Painting Company (Respondent), had violated Sec-
tion 8(a)(1) and (3) of the National Labor Relations Act (the
Act) by discharging its employee, Robert Charon. The Re-
spondent filed an answer in which it denied the commission
of any unfair labor practices.
Pursuant to notice contained in the complaint a hearing
was held before me at Boston, Massachusetts, on October 12,
at which time the owner of the Respondent, Arnold
Duclersaint, represented himself, William F. Murphy, an offi-
cial with the Charging Union, represented the Union, and the
General Counsel was represented by counsel.
At the hearing all parties had the opportunity to present
testimony and documentary evidence, to examine and cross-
examine witnesses, and to argue orally. After the conclusion
of the hearing the General Counsel submitted a brief, which
has been carefully considered.2
Based on the entire record in this case, including my ob-
servation of the witnesses, and their demeanor, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent here is a sole proprietorship owned by
Arnold Duclersaint with his office and place of business in
Somerville, Massachusetts, from whence he is engaged in the
construction industry as a subcontractor. The Respondent an-
nually purchases goods valued at over $50,000 from the
Robert Karp Company, which in turn is engaged in interstate
commerce by reason of its purchase of goods shipped di-
rectly from points outside the Commonwealth of Massachu-
setts and valued at more than $50,000.
The parties agreed, and I find, that Star Drywall, Plaster
& Painting Company is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The parties agreed, and I find that Painters District Coun-
cil No. 35, International Brotherhood of Painters and Allied
Trades, AFL–CIO is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Star Drywall was acting as a drywall subcontractor on a
job in Marshfield, Massachusetts, in the spring of 1989. The
688 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Massachusetts General Laws, Ch. 149, Sec. 26 et. seq.
4 Ibid., Sec. 27.
5 The carpenters measured, cut, and put up the drywall panels, the tapers
applied tape to the joints and applied a skim coat and finish coats of plaster
to the material.
6 William F. Murphy, who testified here, was not involved in Charon’s al-
leged meetings with Union Business Representative Ralph Harriman, nor with
any conversation between Charon and Duclersaint. Harriman did not testify.
7 None of the other employes mentioned in Charon’s testimony as being on
the job with him, Quigley, Wilson, or Kenball testified. The only employee
witness who did testify, Carl Smith, testified only about Charon’s work, cor-
roborating Duclersaint’s testimony in that regard.
8 Duclersaint said the amount was $100, later changing the figure to $125.
The check which Duclersaint used to pay Charon on May 12 was for #328.12,
representing 21 hours’ work. This figure amounts to $15,62 per hour, or just
about $125 per day (actually $124.96. To get $125 a day you would have to
increase the hourly rate by $.005). Charon denied that this arrangement was
made, but, as noted above, I do not credit his denial, Quigley, who apparently
was present, and who settled for $8 per hour, did not testify.
9 This check was not submitted in evidence here. I infer, from that failure,
that Duclersaint’s testimony that the check was based on the $19.45 prevailing
rate, is correct.
project involved the remodeling of a former school building
into elderly housing, and was financed by the Common-
wealth of Massachusetts. As in all state-financed projects, the
State furnished the general contractor with predetermined
wage rates derived from wages paid to laborers and mechan-
ics in the area where the job was located.3 The rates as de-
termined by the State’s Commissioner of Labor and Indus-
tries,4 were applicable to all laborers and mechanics em-
ployed on the job by the general contractor and all sub-
contractors.
The record is not clear on this point, but I think I can rea-
sonably infer that Star Drywall had two categories of em-
ployees on this job, carpenters and drywall finishers, the lat-
ter referred to in the record here as ‘‘tapers.’’ For reasons
not explained in the record, the carpenters were members of
a union, the tapers were not.5
During the first week or so in May, Star’s owner, Arnold
Duclersaint, needed more tapers to complete his subcontract.
Duclersaint was shopping at Robert Karp, in Boston, a store
which carried drywall supplies and tools. There he ran into
Robert Charon, a taper who was unemployed at the time.
Duclersaint asked Charon if he could come to work for him
at the Marshfield job and Charon agreed. Charon was a
member of the Union, District 35, and had, in his words, 3
years of school and 4 years’ experience on-the-job training
as a taper. However, there was no discussion of unions or
wages at that time.
Charon reported to the job on May 10, accompanied by
another taper named Quigley.
From this point the record is very confusing. I believe
there is enough credible evidence for me to make findings
of fact, however, I think it appropriate to make certain credi-
bility findings before going on to further findings of fact. I
find Robert Charon to be almost totally incredible. Aside
from his demeanor, which I found to be shifty and defensive,
and the total lack of corroboration for any of his critical tes-
timony, from the officers of the Union,6 or from his fellow
employees, I find his testimony about his reporting to work
without knowing what his wages would be, and his testi-
mony about his later discussions with Duclersaint about
wages to be obviously an attempt to justify his actions to the
Union as well as to the Board. I found him to be a com-
pletely untrustworthy witness.
Duclersaint’s demeanor was more candid, but his memory
was poor. His story was corroborated by Carl Smith, another
of his employees and, with respect to the times of a meetings
on May 12, by Union Organizer William Murphy. My recon-
struction of the facts, then, is based primarily on
Duclersaint’s version of events.7
When Charon reported to the jobsite on May 10, he told
Duclersaint that he wanted $125 a day, under the table, with
no taxes or other deductions taken out.8
Charon and Quigley then went to work, where they joined
two other tapers, Kimball and Wilson. About 2 hours’ later,
Wilson and Kimball had talked to a union carpenter on the
job who told them the job was union. Wilson and Kimball
became upset and walked off the job. Charon and Quigley
joined them. Duclersaint, calmed Wilson and Kimball, but
Charon and Quigley left and went some where, then returned
about 2 hours’ later and asked to go back to work.
Duclersaint agreed, and they resumed working.
On May 12, Charon was paid $328.12 for 21 hours’ work.
He then protested that he should be paid union scale.
Duclersaint told him that this was the arrangement they had
made, but that, if he would rather, he would be paid at the
rate fixed by the State for painters in this job, or $19.45.
Charon consulted with Harriman, who advised him to return
to work on Monday.
There were no incidents involving money the next week.
On payday, however, Charon again raised an argument that
he should have been paid union scale. Duclersaint explained
that the paycheck reflected the prevailing rate of $19.45 with
appropriate deductions. According to Duclersaint, Charon
‘‘wasn’t happy when he left that job site because he didn’t
go home with the cash he thought he was going to go home
with.’’9
From this, it seems clear that, in some way or another,
Charon thought the job was union, although he had been told
it was not, and there is no indication that he talked to anyone
about this (except possibly Harriman) or tried to persuade
other employees to join the Union. His gripe was only with
his own salary.
Duclersaint testified that he had criticized Charon’s work
on Thursday, May 18. Charon denied that his work had ever
been criticized, but I credit Duclersaint’s version that, on that
day, he had assigned Charon to the finishing stage of the job.
He was not performing acceptably and Duclersaint told him
so.
On Monday, May 22, Charon reported to work without a
‘‘hawk’’ or mortar carrier. He was working on a window
frame when Duclersaint again criticized the speed and the
quality of his work. Charon began to argue and to raise his
voice. Duclersaint testified that Charon was ‘‘slapping [mor-
tar] all over the the place, and told him he couldn’t work like
that. Charon then said ‘Well, are you going to let me go?’
like he was forcing me to fire him. I said: ‘Well, yes, okay.’
So that was the story.’’
I find, based on Duclersaint’s credited testimony, that
Charon was fired, but almost at his own request, for poor
workmanship, on May 22. I find that he had been warned
before, on May 18, about his workmanship, and that he had
reported to work on the May 22. I find that he had been
689STAR DRYWALL CO.
10 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 objec-
tions to them shall be deemed waived for all purposes.
1 Duclersaint testified that Harriman had come in the week before to ask
him to ‘‘sign up with the union.’’ He had replied that he did not know at
that time what he would do.
2 These statements are not accurate, except perhaps, for the last sentence.
Murphy was not involved and did not know how or why Charon was hired,
but there is no question that Charon was not initially sent to the job by the
Union. Nor did Murphy know that Duclersaint was not paying the prevailing
wages, because the purpose of the Harriman and Murphy visit was to find out
about the charge by Charon that those rates were not being paid.
warned before, on May 18, about his workmanship, and that
he had reported to work on May 22 without the proper tools
to do his job. I find, further, that the fact that he complained
about his wages on May 12 and 19 had nothing to do with
his discharge. Charon had begun his employment by entering
into an employment agreement with Duclersaint under which
not only would he not be paid the union scale, but not the
predetermined prevailing rate required by law. Moreover, the
agreement also called for no deductions for Federal and state
income taxes, or social security. Both parties bear respon-
sibility for whatever illegal conduct was involved in that bar-
gain. After that, Duclersaint did pay the prevailing rate with
proper deductions. According to his testimony, Charon was
still unhappy, but there is no indication that Duclersaint bore
any grudge toward Charon. As the former stated, ‘‘I didn’t
want to fire him. Why do I need to fire the guy because the
guy needs people to do the job. It was him and another guy
on the job that day.’’
In the light of these findings, I do not find that the Gen-
eral Counsel has presented a prima facie case for a violation
of Section 8(a)(1) and (3) of the Act. Wright Line, 251
NLRB 1083 (1980).
CONCLUSIONS OF LAW
1. The Employer, Star Drywall, Plaster & Painting Com-
pany, is an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
2. The Union, Painters District Council No. 35, Inter-
national Brotherhood of Painters and Allied Trades, AFL–
CIO is a labor organization within the meaning of Section
2(5) of the Act.
3. The Employer has not violated Section 8(a)(1) and (3)
of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended10
ORDER
That the complaint be, and it is, dismissed.
SUPPLEMENTAL DECISION
GEORGE F. MCINERNY, Administrative Law Judge. On
April 5, 1990, I issued a decision in this matter. On Septem-
ber 25, 1990, the National Labor Relations Board issued an
order remanding the proceeding to me for additional factual
findings and to consider factual findings already made.
In particular, I have been directed to consider: (1) ‘‘The
uncontracted testimony of Union Representative William
Murphy regarding the jobsite conversation between Murphy,
Business Representative Harriman and [Respondent]
Duclersaint, including Duclersaint’s statements to the union
representatives and Murphy’s statements to Duclersaint that
Charon was a union member sent to work for the Respondent
to procure the prevailing wage for all the employees on the
job. The effect of this testimony on the issues of the Re-
spondent’s anti-union animus and the Respondent’s union ac-
tivity.’’
(2) ‘‘Duclersaint’s testimony that he was aware that Char-
on and Quigley had gone to the union during the May 10
walkout and had asked for ‘$26 something an hour’ on their
return. The effect of this testimony on the Respondent’s
knowledge of Charon’s union activity should be considered.’’
(3) ‘‘The testimony of Duclersaint that under his system
of discipline he rarely discharged any employee and those
employees he did discharge were first given two or three
warnings and, usually, an opportunity to perform a task that
they could do adequately. The effect of this testimony on the
issue of the reason for discharge should be considered.’’
A. The May 12 Meeting
As I noted in my April 5, 1990 decision, the record, from
the point when Robert Charon reported to work as a drywall
taper at Respondent’s job in Marshfield, Massachusetts, was
very confusing. I do think it was clearly established that
Charon and Duclersaint, at the former’s urging, entered into
an arrangement whereby Charon would be paid $125 per 8-
hour day with no deductions or withholdings for state or
local taxes. There is no dispute that Charon was hired not
through the Union, but because of a chance meeting between
him and Duclersaint early in May.
Duclersaint employed carpenters and drywall tapers on the
Marshfield job. The carpenters’ part of the job was union,
but the tapers’ part was not. On May 10, when Charon had
been on the job for about 2 hours, two other tapers, Wilson
and Kimball, heard from a union carpenter that the job was
union. Thereupon Wilson and Kimball, together with Charon,
and a helper named Quigley walked off the job. In my prior
decision, not really giving credit to Charon’s story that after
walking off the job he went to see Harriman of the Union,
I found that Charon had gone ‘‘somewhere.’’ Reviewing the
record, particularly the testimony of William Murphy, I now
find that Charon did contact the Union during the brief walk-
out on May 10.
Murphy further testified that he talked to Business Rep-
resentative Ralph Harriman on the morning of May 12; that
Harriman told him that Charon was working at Duclersaint’s
job in Marshfield, a prevailing rate job; that Charon had told
him that the prevailing rate was not being paid; and that Har-
riman wanted Murphy to accompany him to the job to check
on the payment of prevailing wages on this job.
When Harriman and Murphy met with Duclersaint that
day, Duclersaint, accused them of having caused the walkout
on May 10.1 They denied this and Murphy told Duclersaint
that ‘‘Bob Charon is a union member, and we sent him here
to work for you because we know you are not paying the
prevailing wage. And we told Bob to stay here and work for
you and to get the prevailing wage for himself and every-
body else who is working here.’’2 There ensued an argument,
with Duclersaint threatening to call the police.
This testimony by Murphy, while uncontradicted, was
based upon misinformation, or facts, which Murphy knew
690 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
only through his conversations with Harriman. Despite this,
based on Murphy’s testimony of what he said to Duclersaint,
I would be justified in finding that Duclersaint was told that
Charon had been sent there by the Union and was asked to
stay there by the Union to secure the proper wage rate for
himself and all the rest of Duclersaint’s employees.
Charon, however, testified that at the end of that day, Fri-
day, May 12, he received his check and Quigley’s check
from Duclersaint. Charon’s check was in the amount of
$328.12, which, as I have found in my prior decision, works
out to just about $125 per day. According to Charon, he did
protest the failure to pay the prevailing rate, but he took the
check, brought it to the union hall, and discussed the matter
with Harriman, who advised him to report for work the next
week. There is no indication in the record that Charon told
Harriman about the ‘‘under the table’’ deal he had made with
Duclersaint.
B. Duclersaint’s Knowledge of Charon’s Union Activity
Duclersaint testified that he was aware that Quigley and
Charon had talked to the Union on Friday, May 12. Later
that day, when Duclersaint gave Charon his check and
Quigley’s check Charon said to him that the job paid ‘‘$26
something an hour and I want to make my prevailing wage.’’
The prevailing rate for tapers on this job was $19.45 per
hour. There is nothing in the record here to show where the
$26 figure came from, but considering his union affiliations
and his contacts with Harriman, I find that this figure used
by Charon was probably based on the current union scale for
tapers. I will discuss this later, but at this point I certainly
can find that as of May 12, Duclersaint knew that Charon
had something to do with the Union in spite of his previous
denials that he was a union member.
C. Duclersaint’s Disciplinary System
Duclersaint testified that his policy on dealing with em-
ployee problems involved personal efforts to help employees.
He indicated that he would reassign employees and warn
them two or three times before discharging them. He further
stated that he had fired as few as 10 people during his 10
years in business.
There was no dispute about this testimony. So I find that
Duclersaint’s policy was as he stated.
Conclusions
In considering Murphy’s testimony about the meeting be-
tween himself, Harriman, and Duclersaint on May 12, and
Duclersaint’s testimony that Charon returned from going to
the Union on May 10 asking for ‘‘$26 something an hour’’
Duclersaint was aware as early as May 10, and certainly by
May 12, that Charon was engaged in union activities. I am
not so sure what these activities were. Murphy mentioned
that Harriman said on May 12 that Charon was on the job
under his instructions. Murphy also said that when he and
Harriman met Charon on the morning of May 12 he told
them he had talked to two other tapers, but that he did not
recognize them. Here we have Charon quoted by Murphy but
this incident, or even this meeting, was not mentioned by
Charon in his testimony, nor corroborated by any other em-
ployee, and, perhaps most importantly, not by Harriman.
There was no reason given why Harriman was not available
to testify. His testimony would have been important, if not
critical, in regard to his meetings with Charon, and the nature
of his assignments to Charon, as well as his meetings with
Duclersaint. I did not in my original decision make any ad-
verse inferences based upon Harriman’s failure to testify, but
in a case like this which depends almost entirely on infer-
ences for the conclusion the General Counsel seeks, I must
decline to draw inferences in support of the General Coun-
sel’s theories in areas where Harriman’s testimony would
have been pertinent.
Since I do not credit much of what Charon said, I cannot
find that his statement as reported by Murphy, was accurate.
There are no other references to Charon’s contacts with any
other employees during his short tenure on the job, after
Quigley left on May 11. Therefore, I cannot find, or infer,
that Charon engaged in any union activities on the job after
May 11, except for the question of his own wages.
There is no question here that the prevailing wage rate was
$19.45 per hour. The table of rates predetermined for this job
by the state were supposed to be posted on the job. Charon
denied that the rates were posted, finally admitted that
Duclersaint had shown him a sheet with rates on it, but
claimed that the rates on there were wrong, that the real rate
was ‘‘$27 or something, because at his first meeting with
Harriman on May 10 Charon made an assumption that the
prevailing rate was $27. The reason for this assumption were
not given by Charon, and, of course, not by Harriman. In
these circumstances I felt when I wrote my original decision,
and I still believe, that Charon’s insistence on the $27 (ore
$26) rate, without consultation on that rate, as opposed to the
actual prevailing rate, showed that Charon was in fact acting
solely on his own behalf. My original views, based on
Duclersaint’s testimony and Charon’s shifting and equivocal
testimony about the prevailing wage rate schedule, are not al-
tered by Murphy’s testimony. That testimony shows that
Duclersaint was told that Charon was on the job to represent
the interests of the Union. The extent of that agency, in the
absence of any testimony from Harriman, is unclear. My un-
derstanding of the credible evidence, discounting Murphy’s
report of Charon’s statement that he had talked to other, un-
known, employees about the prevailing rate situation, is that
after receiving his first week’s pay, based on his deal with
Duclersaint, Charon protested that he should be paid at the
$27 rate. In his second week, as I have found in my prior
decision, Charon was paid at the correct prevailing rate of
$19.45. He still protested, again asking for the $27 rate. This
does not sound to me as if Charon was engaged in a mission
for the Union to assure the payment of the prevailing rate
for all employees, but on a solo mission for his own personal
benefit.
Be all that as it may, I am constrained to find that Charon,
as the agent of the Union, was engaged in union activities,
and that Duclersaint knew about it.
Having established Charon’s union activity, and the Re-
spondent’s knowledge of that activity, I now address a third
criterion, the Respondent’s attitude toward the Union. The
facts, which are undisputed, show that early in May Har-
riman came to the job and asked Duclersaint to sign up with
the Union. Duclersaint testified that he would not at that
time, because of a problem he was having with the car-
penters’ union, which represented some of his other employ-
ees.
691STAR DRYWALL CO.
3 He mentioned two separate incidents where Harriman came on to the job
and told his employees that they could not work there.
4 Murphy denied the accusation by Duclersaint in their conversation on May
12, but Murphy could have known only what Harriman told him about the
latter’s prior encounters with Duclersaint or the Marshfield job. Again the ab-
sence of testimony from Harriman and other employees of Duclersaint is criti-
cal.
5 Smith testified that he had left Duclersaint for a ‘‘better job’’ at the end
of May. I think I can properly infer that Smith was not an employee of
Duclersaint at the time of this hearing.
6 Carl Smith, who heard the conversation, did not testify that he heard
Duclersaint actually fire Charon. He did state that he saw the place where
Charon was working and it looked, in his words ‘‘like shit.’’
7I have indicated my finding’s on Duclersaint’s credibility in my prior deci-
sion. I found Smith to be a candid witness. His recollection of the two inci-
dents here comports with Duclersaint’s, and is not inconsistent with Charon’s.
Smith was at the time of the hearing no longer an employee of Duclersaint,
and I find his demeanor to be frank and open. I therefore, credit his testimony
on the May 18 and 22 incidents here.
At the meeting of May 12, Murphy’s testimony shows that
Duclersaint, was angry because he believed that the union
representatives had ‘‘told people not to work for me.’’ Mur-
phy testified that he denied this and stated that the Union had
told Charon to stay on the job and to get the prevailing wage
for himself and others. Then meeting the degenerated into a
shouting match, almost, as Duclersaint said in his testimony,
into a physical confrontation. There was a threat to call the
police, and Murphy saw Duclersaint on the telephone as he
left. Murphy assumed he was calling the police, but there is
no further evidence on that.
I cannot find any substantial evidence in these events to
establish antiunion animus. Duclersaint had another union on
the job, and had a ‘‘problem’’ with that union, but that is
not evidence of a discriminatory motivation toward that
union, or this Union. Duclersaint was angry because he
thought the Union had told employees to leave his job. The
record shows that four employees did leave the job on the
morning of May 10, Charon, Quigley, Wilson, and Kimball.
Of these, the only one who testified was Charon and he of-
fered no real explanation of why they all left. Wilson,
Kimball, and Quigley as well as Harriman did not testify.
Murphy, who by his own testimony did not become involved
in the Marshfield job until the morning of May 12 could not
testify about the events of May 10, and he knew only that
Charon had been sent back to the job.
At the end of the March 10 incident Charon and Quigley
returned to the job and were rehired without question, even
though Duclersaint may well have known at that time that
they were connected with the Union. We do not know why
Kimball and Wilson did not return.
The former filed a complaint with the Massachusetts De-
partment of Labor and Industries around May 26, 1989. This
record contains a reply to that claim by Duclersaint, but no
further information.
On the basis of this record, there is insufficient evidence
upon which I can make a finding that Duclersaint bore any
ill-will against the Union for any reason other than his belief
that union representatives had come on to his job and in-
duced his employees to abandon their jobs.3 There is no evi-
dence that Duclersaint’s beliefs were incorrect.4 The argu-
ment between Duclersaint and Murphy was loud, profane,
and may have involved an invitation to settle the matter with
fists or a threat to call the police, but was certainly not an
unusual occurrence in the course of construction industry
labor relations, or an incident that, without more, would tend
to establish any antiunion attitude on the part of an em-
ployer.
With respect to Duclersaint’s practice in disciplining em-
ployees, the only evidence we have in this record is
Duclersaint’s own testimony, and the facts of Charon’s dis-
charge. In his testimony Duclersaint said that he tried to
‘‘work with’’ his employees, to help them ‘‘to do the job
right.’’ He said that his practice was to speak to employees
if they were not working properly, at least two or three times
before firing them, and sometimes put them on another job,
‘‘doing something they can do right.’’
As far as Charon was concerned, Duclersaint found no
fault with his work or a taper for the first few days. Then
he was assigned to plastering a second coat on the walls
along with taping, and it was then, on Thursday, May 18,
that Duclersaint spoke to Charon about his work. According
to Carl Smith, a former employee of Duclersaint,5
Duclersaint was trying to help Charon, but did tell him that
his work was not acceptable. Duclersaint himself said that
the work Charon was doing was ‘‘a mess. There is no way
that the architect was going to accept the job.’’ He spoke to
Charon about this, and also said that he was trying to help
him.
On Monday, May 22, Charon came on the job without his
tools. Duclersaint walked into the room where Charon was
working, applying plaster to a window frame, using a piece
of sheetrock in place of a plaster holder, or ‘‘hawk.’’
Duclersaint asked Charon what he was doing, and told him
that he could not work like that. Charon responded by ‘‘ar-
guing and screaming’’ in a display that both Duclersaint and
Carl Smith, who was in an joining area and who testified
that he heard the conversation, called ‘‘disrespectful.’’
Duclersaint told Charon that he had a ‘‘big mouth,’’ but did
not fire him. Instead he walked away and told Charon that
if he wanted to work he had to come with the right tools.
Charon then asked Duclersaint, ‘‘Well, are you going to
let me go?’’ Duclersaint felt that Charon was ‘‘forcing’’ him
to fire Charon, so he said, ‘‘Well, yes, okay.’’ Charon then
left.6
Charon’s version of his discharge is fairly consistent with
this. He stated that he insisted to Duclersaint that his work
was good, but did admit arguing with him, and that
Duclersaint told him he had a big mouth, and to pick up his
tools and leave. But Charon, even after that, knew he was
not discharged because, according to his testimony, he fol-
lowed Duclersaint down the hall, and asked him repeatedly
if he was fired. Duclersaint said for him to leave the build-
ing. Charon replied ‘‘I assume I’m fired,’’ and Duclersaint
‘‘just waved his hand.’’ Charon then got his tools and left.
All of this shows, first, that Duclersaint did follow his stat-
ed policy. On May 22 he spoke to Charon for the second
time about his work. There were real problems with that
work according to the testimony of Duclersaint and Smith.7
But Charon, rather than accepting Duclersaint’s criticism and
accepting his suggestion that he go home and get the proper
tools for the job, sought to take a defensive and
confrontational attitude, becoming ‘‘disrespectful’’ to
Duclersaint. Second, it was this latter reason more than poor
workmanship, that led to Charon’s ultimate discharge. While
the term ‘‘big mouth,’’ along with words like ‘‘uncoopera-
692 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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 objec-
tions to them shall be deemed waived for all purposes.
tive,’’ or ‘‘trouble maker’’ may be a code word indicative
of antiunion motivation, I think, in the present context, the
expression as used by Duclersaint reflected only his resent-
ment over Charon’s intemperate response to his Employer’s
reprimand. Even then, Charon was not discharged until he
further pressed Duclersaint, perhaps not forcing the latter to
utter words of dismissal, but at least to assent with an
‘‘okay’’ or a wave of the hand, to Charon’s requests to say
that he was fired.
In response to the direction of the Board, I have consid-
ered the several areas that they ordered me to consider. I
have also reconsidered my own prior decision. In this last re-
gard, I believe now, as I did then, that Charon’s activities
were entirely individual and selfish, not involving concerted
activity, but only concerned with his own pay. I should have,
of course, considered the question of Charon’s union activi-
ties in that prior decision, and I regret the necessity, as
brought to my attention by the Board, that I rethink this as-
pect of the case. But the facts I have found here convince
me that the General Counsel has not established a key issue
here—antiunion animuls by Duclersaint against either the
Union or against Charon. Nor has the General Counsel estab-
lished that the discharge of Charon was due to any reason
other than his disrespectful and angry response to
Duclersaint’s proper direction to him to go home and come
back with the proper tools.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended8
ORDER
That the complaint be, and it is, dismissed.