Tower Landscaping

National Labor Relations Board - Board Decisions

Sep 15, 1997

324 N.L.R.B. 347 (N.L.R.B. 1997)

347
324 NLRB No. 69
ELECTRICAL WORKERS IBEW LOCAL 1049 (TOWER LANDSCAPING)
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
1 Unless indicated otherwise, all dates referred to relate to the year
1996.
Local 1049, International Brotherhood of Electrical
Workers, AFL–CIO and Tower Landscaping.
Case 29–CB–9967
September 15, 1997
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
On March 25, 1997, Administrative Law Judge Joel
P. Biblowitz issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and brief and has decided to affirm the judge’s rulings,
findings,1 and conclusions and to adopt the rec-
ommended Order as modified.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Local
1049, International Brotherhood of Electrical Workers,
AFL–CIO, its officers, agents, and representatives,
shall take the action set forth in the Order as modified.
1. Substitute the following for paragraph 1(b):
‘‘(b) In any like or related manner restraining or co-
ercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.’’
2. Substitute the following for paragraph 2(a):
‘‘(a) Within 14 days after service by the Region,
post at its office and at all of its meeting halls, and
at Tower’s principal office, if Tower is willing, copies
of the attached notice marked ‘Appendix.’3 Copies of
the notice, on forms provided by the Regional Director
for Region 29, after being signed by Respondent’s au-
thorized representative, shall be posted by the Re-
spondent immediately upon receipt and shall be main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to members are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notice is not altered, de-
faced, or covered by any other material.’’
Marcia Adams, Esq., for the General Counsel.
Vincent F. O’Hara, Esq. (Holm, Krisel & O’Hara), for the
Respondent.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me on January 23, 1997, in Brooklyn, New
York. The complaint herein, which issued on October 31,
1996,1 and was based on an unfair labor practice charge filed
on August 20 by Tower Landscaping (Tower) alleges that
Local 1049, International Brotherhood of Electrical Workers,
AFL–CIO (Respondent) violated Section 8(b)(1)(A) of the
Act on about August 2 by making threats of physical harm
if Tower did not sign an agreement with the Respondent and
assign its landscaping work to Respondent’s members.
FINDINGS OF FACT
I. JURISDICTION
Respondent admits, and I find, that Tower has been an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION STATUS
Respondent admits, and I find, that it has been labor orga-
nization within the meaning of Section 2(5) of the Act.
III. FACTS AND ANALYSIS
This case involves statements allegedly made on about
August 2 by Richard Fridell, an organizer for the Respond-
ent. Counsel for the General Counsel alleges that the state-
ments constitute a threat of violence on the part of Respond-
ent if Tower refused to sign an agreement with it and to as-
sign Respondent’s members to perform certain work. The
Respondent, while admitting that Fridell made the alleged, or
a similar, statement, defends that the statement related solely
to the Respondent’s lack of safety procedures.
Tower is engaged in the business of landscaping and relat-
ed maintenance. In 1996, it bid for, and was awarded a con-
tract by Long Island Lighting Company (Lilco) for grounds
maintenance of Lilco’s transmission line rights of way, re-
sulting in an agreement between Tower and Lilco dated May
29. Apparently, prior to 1996, Lilco had contracted with an
employer or employers whose employees were represented
by the Respondent.
Michael Varrone, who was employed by Tower from Sep-
tember 6, 1994, to December 2, testified that on July 13, he
received a telephone call from Fridell asking to speak to
Robert Hole, Tower’s owner. Varrone said that Hole was not
available and asked if he could assist him. Fridell said that
he understood that Tower was awarded the Lilco contract for
grounds maintenance and Varrone said that it was. Fridell
said that he would like to sit down with Tower to come to
some agreement ‘‘to sign up with the Union.’’ Varrone said:
‘‘We’ve been a non-union shop for 39 years. From what I
understand, we’d like to stay that way. Your men are wel-
come to come down and fill out applications if they want.’’
The work under the May 29 agreement commenced on
July 15. On August 2, Varrone received a telephone call
from Mark Abrams, Tower’s general foreman who was
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348 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
working on a Lilco job in the town of Bethpage, Long Is-
land, New York. Abrams said that Fridell and about 8 or 10
of Respondent’s members were at the jobsite trying to stop
the work, and that Fridell wanted to talk to him. Varrone told
Abrams to give Fridell the cellular phone. Fridell identified
himself and said: ‘‘What the fuck is going on here? This is
our work.’’ Varrone told him that they were doing some
work for Lilco; they were awarded the contract and that Re-
spondent’s beef was with Lilco, not Tower. Fridell said: ‘‘I
don’t give a shit about Lilco. If we can’t sit down and come
to a conclusion or some sort of decision, its going to get
fucking bloody.’’ Varrone told Fridell to calm down, and
Fridell said that he was calm. Varrone asked Fridell to let
the men work that day, and Fridell said that he would, but
that if Tower did not call the Respondent by the end of the
day, ‘‘this is going to get fucking bloody.’’
Rodolfo Diaz began his employment with Tower at the
end of July; Abrams was his immediate supervisor. He testi-
fied that on August 2 he was performing maintenance work
on a Lilco right of way in Bethpage with Abrams and about
five other Tower employees. At about 9 a.m., Fridell and
about eight other people came to the jobsite and he heard
Fridell tell Abrams: ‘‘We could not work there because if we
did, there was going to be blood, problems and so forth.’’
At that time, Abrams said that he was going to call Varrone
and made a phone call from his cellular phone and gave the
phone to Fridell; at the time, Fridell was between 5 and 7
feet from where Diaz and the other employees were standing.
Fridell walked back and forth with the phone and spoke
loudly, saying that he would call Immigration and that no
one was going to work there because there was going to be
bloodshed and he told Varrone, ‘‘I’m going to kick your
ass.’’ After Fridell gave the phone back to Abrams, Abrams
told the employees to pick up their equipment and they left
the site without performing any work.
Fridell, who became an organizer for the Respondent on
July 1, testified that his first contact with Tower was a tele-
phone call that he made to Hole in mid-July. He introduced
himself and asked him about the contract that he had with
Lilco. Hole said that he had the work, but that he was not
going to perform it with Respondent’s members. Sometime
after that conversation, he called Hole and spoke to Varrone
and asked if there was any chance that they could sit down
and talk. Varrone told him no, that Hole always worked non-
union, and did not plan to change. On August 2, he went to
the Bethpage site with five members who perform line clear-
ance work, such as was performed by Tower. He had two
purposes in going there: ‘‘I was still hoping to organize
Tower,’’ and he wanted to see the kind and quality of work
that Tower was performing. They walked around the site and
Tower’s employees arrived in two trucks, each with three
employees in the front cab and four or five employees in the
back of both trucks; ‘‘they were jam packed.’’ The Tower
employees formed a semicircle around them and Fridell
asked if they were from Tower, although he felt intimidated
and nervous because he was outnumbered and did not know
them. Fridell then asked the employees if they knew about
the Respondent and if they had papers to work in the coun-
try, as most of them were Hispanic. He was then handed the
cellular phone by someone, probably Abrams, who said,
‘‘[H]ere’s Varrone.’’ Varrone asked him what the problem
was, and Fridell asked Varrone why he had not contacted
him and said there was no problem other than the fact that
in a prior conversation he had told him that if they were
going to be performing their work that the Respondent would
be picketing. Fridell then told Varrone that his employees did
not know how to properly use the equipment: ‘‘I didn’t feel
the guys were qualified to do the work and that they were
going to—they could get hurt or bloody—I don’t know if
that was the term I used; I guess it was.’’ He testified that
he does not believe that he was speaking in a loud voice, but
he was attempting to be heard over the cellular phone. He
used the word ‘‘bloody’’ because Tower’s employees had no
protective headgear, no safety eyeglasses, and no ear protec-
tion or chaps (which protects the workers’ legs).
By letter dated July 15, Fridell asked for an OSHA rep-
resentative to accompany the Respondent to a jobsite of
Tower on July 15. The letter states: ‘‘I strongly believe vio-
lations of OSHA regulations are being committed by the
company on the site. It is imperative, due to the dangerous
nature of the work that this inspection be performed imme-
diately.’’
Due to the Respondent’s defense herein, there was some
testimony regarding Tower’s safety program and record. Be-
cause of the nature of the unfair labor practice alleged here-
in, I did not allow any testimony regarding accidents or inci-
dents after August 2. Varrone testified that during the term
of his employment with Tower, it had no registered program
with the state or Federal Government for training, had no
certified instructors, and a majority of its employees were
Hispanic, some of whom had problems understanding
English. He testified further that sometime after August 2,
Fridell told him that Tower’s employees did not have the
proper safety equipment, including eye protection. The em-
ployees were not given chaps on July 15; they were given
chaps and helmets with face shields and ear protection on a
later date, but he could not recollect at what time. Diaz testi-
fied that he was given a helmet that protects your face and
ears, and protective pants on his first day of employment
with Tower.
There is a credibility issue on what Fridell said on the
morning of August 2. Varrone testified that about 2 weeks
earlier, Fridell said that he understood that Tower had ob-
tained the Lilco contract and asked to meet with Tower to
sign a contract with the Respondent. On August 2, Fridell
claimed that the work belonged to the Respondent. When
Varrone replied that Lilco had awarded the contract to
Tower, Fridell said: ‘‘I don’t give a shit about Lilco. If we
can’t sit down and come to a conclusion or some sort of de-
cision, it’s going to get fucking bloody.’’ Diaz testified that
while at the Bethpage site, he overheard Fridell tell Abrams
that the employees could not work there because there would
be bloodshed and, on the cellular phone, tell Varrone that no
one was going to work there because there was going to be
bloodshed and that he would kick his ‘‘ass.’’ Fridell testified
that his concern was safety, and he told Varrone that he did
not feel that the employees were qualified to do the work
and that they could be hurt or get bloody. This is a rather
simple credibility determination. Fridell was a young, new
and, apparently, eager organizer for the Respondent, whose
members had previously performed this work for other em-
ployers for many years. About 2 weeks after Fridell com-
menced his employment with Respondent as an organizer,
Tower begin performing this work with nonunion employees.
He attempted to convince Tower to sign up with the Union
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349ELECTRICAL WORKERS IBEW LOCAL 1049 (TOWER LANDSCAPING)
2 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.
3 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
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.’’
and, when that failed, threatened bloodshed. Varrone’s ver-
sion of the incidents, as supported by Diaz’ testimony, is
both credible and reasonable. Fridell’s threat to Varrone, as
overheard by the employees, was clearly meant to obtain the
work for Respondent’s members. The safety issue defense
promulgated by Respondent here, while commendable, was
clearly an afterthought.
It is alleged that Fridell’s threat violated Section
8(b)(1)(A) of the Act because it restrained and coerced Tow-
er’s employees in the exercise of their Section 7 rights.
Fridell made a clear threat of bloodshed should Tower refuse
to sign a contract with the Respondent, and this threat was
overheard by, at least, Diaz. Even though the threat was not
made directly to the employees, and it was not a demand that
they sign cards for the Union, it was overheard by them and
could reasonably be viewed as a threat to their Section 7
rights to join, or to refuse to join, a union. I, therefore, find
that Fridell’s threat violated Section 8(b)(1)(A) of the Act.
Teamsters Local 212 (Stuart Wilson, Inc.), 200 NLRB 519
(1972); General Iron Corp., 218 NLRB 770 (1975); Elec-
trical Workers Local 3 (Cablevision), 312 NLRB 487 (1993).
CONCLUSIONS OF LAW
1. Tower has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Respondent has been a labor organization within
the meaning of Section 2(5) of the Act.
3. By threatening Tower with bloodshed, in the presence
of Tower’s employees, if it refused to sign a contract with
the Respondent, the Respondent violated Section 8(b)(1)(A)
of the Act.
THE REMEDY
Having found that the Respondent has violated the Act as
alleged in the complaint, I shall recommend that it cease and
desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, Local 1049, International Brotherhood of
Electrical Workers, AFL–CIO, its officers, agents, and rep-
resentatives, shall
1. Cease and desist from
(a) Threatening physical harm in the presence of employ-
ees should an employer refuse to execute a collective-bar-
gaining agreement with the Respondent.
(b) In any like or related manner restraining or coercing
employees in the exercise of the rights guaranteed them by
Section 7 Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its office and at all of its meeting halls, and
at Tower’s principal office, if Tower is willing, copies of the
attached notice marked ‘‘Appendix.’’3 Copies of the notice,
on forms provided by the Regional Director for Region 29,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and shall be maintained for 60 consecutive days in con-
spicuous places, including all places where notices to mem-
bers are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notice is not altered,
defaced, or covered by any other material.
(b) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsible
official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
APPENDIX
NOTICE TO MEMBERS
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 employees with physical harm in
order to compel their employer to execute a collective-bar-
gaining agreement with us.
WE WILL NOT in any like or related manner restrain or co-
erce Tower’s employees in the exercise of the rights
guaranted them by Section 7 Act.
LOCAL 1049, INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS, AFL–CIO
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