Willett Enterprises

National Labor Relations Board - Board Decisions

Oct 23, 1975

221 N.L.R.B. 9 (N.L.R.B. 1975)

GEORGE EDGECOMBE, D/B/A WILLETT ENTERPRISES 9
George Edgecombe, Doing Business as Willett Enter-
prises and Henry Wodarski , Jr. Case 3-CA-5&16
October 23, 1975
DECISION AND ORDER
1975.) During the year just prior to issuance of the
complaint, Willett Enterprises received at various jobsites
goods and materials valued in excess of-$50,000 which
Edgecombe purchased from enterprises located in the State
of New York which, in turn, had, received them. directly
from suppliers located outside the State of New York.
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On June 27, 1975, Administrative Law Judge
Benjamin K. Blackburn issued the attached Decision
in this proceeding. Thereafter, General Counsel filed
exceptions and a supporting brief.
Pursuant to- the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
- DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN, Administrative Law Judge:
The charge was filed on September 23, 1974.1 The
complaint was issued on January 16, 1975. The hearing
was held in Elmira , New York, on May 15, 1975. The issue
was Respondent's motive for laying off Henry Wodarski,
Jr., on September 13. For the reasons set forth below, I find
that it was a motive unrelated to Wodarski's union
activities and thus the termination did not violate Section
8(a)(3) and (1) of the National Labor Relations Act, as
amended.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of a
brief filed by the General Counsel,' I make the following:
FINDINGS OF FACT
1. JURISDICTION
At all times material herein, George Edgecombe was
engaged in the construction industry in the State of New
York, principally as a builder of bridges, as a sole
proprietor under the trade name of Willett Enterprises.
(Edgecombe incorporated Willett Enterprises in early
1 Dates are 1974 unless otherwise indicated.
H. THE UNFAIR LABOR PRACTICE
A. Credibility
This case revolves around a work stoppage which
occurred on Saturday, September 7, and Monday, Septem-
ber 9. The only significant credibility conflict in the record
concerns whether Wodarski called the men off the job on
his own initiative or on the orders of Maurice (Bill)
Hughes, business agent for Local 532, United Brotherhood
of Carpenters and Joiners of America. Wodarski testified
that he followed Hughes' instructions. Hughes testified, in
effect, that the incident related by Wodarski at which
Hughes gave Wodarski his instructions, never took place.
Principally because of Hughes' evasiveness, I have credited
Wodarski over Hughes in this respect and, generally, have
credited Hughes only where his testimony is corroborated
by another witness. There is, in the record an additional
point which reinforces my appraisal of Hughes' demeanor
on the witness stand and furnishes, I think, an explanation
for his unwillingness to own up to his own role in what
took place.
Wodarski, an ardent union man, was placed in an
anomalous position in his on-the-job relationship with
Edgecombe because Samuel Ruggiano, an official of the
Carpenters Union at the International level, and Hughes
made a deal with Edgecombe. They agreed that Edge-
combe could operate nonunion on the project in question
provided he used union men. Although the fact is not
spelled out in the record, I gather, from Ruggiano's efforts
to interfere in the proceedings when Hughes was on the
witness stand and making concessions which were not to
Ruggiano's liking, that Ruggiano is Hughes' superior in the
union hierarchy. Ruggiano, who took the stand as a
witness for the General Counsel at a time when Hughes
was not in the hearing room but whose. sympathies
obviously lay with Edgecombe rather than Wodarski,
testified credibly that he learned of, the work stoppage
when Hughes telephoned him, presumably on September
7, and he immediately told Hughes to order the men back
to work. Hughes, who was called by Respondent,- testified
that he never told Ruggiano about the walkout-prior to a
luncheon meeting of Ruggiano, Hughes, and Edgecombe
on September 9. As to this relatively insignificant detail,, I
credit Ruggiano over Hughes. More importantly, it
provides the key to Hughes' evasiveness. In authorizing
Wodarski to pull the men ofl, the job, he was violating the
deal Ruggiano had made with Edgecombe that the Union
would do nothing to embarrass Edgecombe on a nonunion
project. Ruggiano considered the deal an important
obligation, both by the Union and by himself personally.
When Hughes talked to Ruggiano on the telephone on
September 7, he left out the detail that the men were not
221 NLRB No. 3
10 DECISIONS ' OF NATIONAL LABOR RELATIONS BOARD
working as a result of his instructions. When he got on the
witness stand with Ruggiano in the room, he was so loath
to admit that he had violated the deal, thus undercutting
Ruggiano's relationship with Edgecombe, that he fudged
his testimony.
B. Facts
Harrison & Burroughs is a corporation headquartered in
Willett, New York, which has a long relationship with the
Carpenters as well as other labor organizations as a union
contractor. Edgecombe became sole owner of Harrison &
Burroughs some ' 6 years ago. More recently, one project
before the. project involved in this case, he organized
Willett Enterprises as a sole proprietorship in order to be
able to participate in nonunion jobs. Whether operating
union or nonunion, he has never actually signed a written
contract with the Carpenters Union.
C. D. Murray Company, a nonunion' company, is the
general contractor with -the State of New York for
construction of the Fitch 'Street Bridge in West Elmira,
New York. Edgecombe, wearing his Willett Enterprises
rather than his Harrison & Burroughs hat, is -a subcontrac-
tor under Murray.
Some - time in August, before beginning work on the
bridge, Edgecombe met with Ruggiano, Hughes, and an
Iron Workers business agent who is unnamed in the
record. Edgecombe explained his willingness to pay union
wages and benefits and observe union conditions and his
desire not to have any union-type trouble on the job which
would embarrass him in his relationship with Murray. He
was'especially concerned that there be no disputes over the
work- along craft lines. The three union officials' agreed, on
behalf of their own organizations as well as the labor
organizations such as the Laborers who would represent
any other crafts employed by Edgecombe, that they would
not formally assign business agents or stewards to'the
project and that any problems which might arise would be
worked out quietly after hours without any of the outward
manifestations of labor disputes that sometimes arise on
union projects.
Edgecombe began work on Monday, August 26. Wodar-
ski, and presumably other carpenters, were hired through
Local 532's hiring-hall in Elmira: They were informed that
the project was nonunion and that Local 532 had made a
special arrangement with Edgecombe. Wodarski's first day
on-the job was-August 26. The'next day, Hughes stopped
his automobile alongside the road near the project, called
Wodarski over, and appointed him steward.2
Wodarski took his appointment seriously. He asked
Harold- Eltz, Edgecombe's general superintendent, for his
union book. He filed a formal steward's report With the
secretary of Local-532 at a union meeting held on August
29. He expressed his displeasure of Eltz' having carpenters
do cement finishers' work.' On that occasion, sometime
prior -to September 7, Wodarski changed into his street
clothes at quitting time and then'stood by and watched, for
2 Testimony S about this incident is- the prime example of Hughes'
evasiveness while on the witness stand . Hughes was never asked specifically
whether he went to the project . If he had admitted it, of course, it would
have been further evidence that he had failed to live up to the deal with
Edgecombe, for a specific commitment which he and Ruggiano had made
some 2 hours while two other carpenters' did the cement
work on overtime.
Wodarski's work performance, especially his propensity
for stopping work to talk, soon got him into Eltz' bad
graces. Eltz complained to Edgecombe, calling Edge-
combe's attention on at least one occasion to the fact that
Wodarski was talking when he should have been working.
Eltz recommended that Edgecombe fire' Wodarski. Edge-
combe declined.
Fitch Bridge, is a posted rate project, that is, by the terms
o€C. D. Murray Company's contract with the State of New
York, it and its subcontractors are obligated to pay the
prevailing wage- rates- in the area. As is customary in "these
situations, prevailing wage rates are union rates. Fitch
Bridge lies just outside the Elmira city limits. Local 532's
hourly rate for Elmira carpenters is some 25 cents an hour
higher than the rate under the contract of a Carpenters'
local in, Corning, New York, while its ' fringe benefit
payments total a similar amount less. Because, apparently,
someone concluded that the Corning rate applied to all
parts of Chemung County which he outside the city limits
of Elmira, the carpenters rate which was posted on, the job
was the Corning rather than the Elmira rate. Sometime
prior to September 6, a carpenter other than Wodarski
complained to Hughes that Edgecombe was going to pay
the carpenters at too low a rate. Hughes arranged for
Ruggiano and himself to meet Edgecombe for lunch on
September 9 to discuss the matter.
Wodarski and the other carpenters received their. first
paychecks on Friday, September' 6. Wodarski computed
what he should have received under the Elmira rate and
concluded he had been underpaid. When Eltz declined to
help Wodarski, he approached Edgecombe, showed Edge-
combe his and another carpenter's checks, and said
somebody had made a mistake. Edgecombe computed
what Wodarski and the other man were entitled to, using
the Corning rate, and disagreed. He said the rate that had
been used was the posted - rate and, therefore, the
paychecks were right. Wodarski said he was going to
complain to Hughes. Edgecombe said he had agreed to pay
the posted rate plus fringe benefits to the Union. He, said
that he already,had a meeting scheduled with the Union on
Monday, over the posted rate and, if there was anything
wrong, it would be straightened out at that time. Wodarski
later asked Ebtz for permission to use the telephone,on the
project in order to call Hughes. Eltz refused.
On his way home from work that evening Wodarski
found Hughes at the home of a Mr. Clemmons, vice
president of, Local 532. Wodarski told Hughes about the
dispute over the rate. Hughes instructed Wodarski to
contact the other five carpenters on the project that night
and tell them not to report to work the next morning and
to come to the union hall instead of going to work on
Monday morning. Wodarski passed the word. As a result,
no carpenters reported for work on Saturday. Eltz reported
this fact to Edgecombe by phone. Edgecombe called
Hughes. Hughes acted surprised. Edgecombe asked if their
was that business , agents would stay away. He admitted that he asked
Wodarski to keep an eye on things and call , him at home if any problems
arose. He denied vehemently that he used the word "steward" in the course
of the conversation . My findings are based on Wodarski's credited
testimony.
GEORGE EDGECOMBE,' D/B/A WILLETT ENTERPRISES 11
meeting for Monday to discuss the rate was still on.
Hughes assured . him it was. Hughes called Ruggiano.
Ruggiano told Hughes to order the men back to work.
Hughes did not do as he was told. As a result, Edge-
combe's carpenters did not work on September 7 or
September 9.
Edgecombe met with Ruggiano and Hughes, at the
Flaming Pit, Restaurant around noon on September 9 as
scheduled. They resolved the dispute over the rate without
any difficulty. Edgecombe readily agreed to pay the Elmira
rather than -the Corning rate. The change cost him little, for
it simply meant that he could reduce his contributions to
Local 532's various fringe benefit funds by almost as much
as he raised the hourly rate. Edgecombe said that he had
had enough of Wodarski and was going to lay him off. He
referred specifically to the cement finishing incident when
Wodarski had created the kind of craft trouble that
Edgecombe was anxious to avoid. Ruggiano and Hughes
persuaded Edgecombe not to terminate Wodarski. They
promised him they would take Wodarski off his hands by
finding another job for him in a few days. When Hughes
returned to the hall after lunch he instructed `the men to
return to work the next morning . All six, Wodarski
included, did so.
On Wednesday, September 11, Wodarski and Edge-
combe had an argument at the jobsite about what had
happened between them on September 6. Edgecombe
asked Wodarski who had told the men that the Corning
rate was all they were going to get . Wodarski said that
Edgecombe had. Edgecombe said, "That is an outright
he.,,
Wodarski telephoned Hughes that evening and com-
plained that Edgecombe had called him a God damn liar.
Hughes went to the jobsite on the morning of Friday,
September 13, and told Edgecombe he had a problem
because Edgecombe had called Wodarski a God damn liar.
Edgecombe protested that he never used that kind of
language . He insisted that he and Hughes go to Wodarski
immediately and talk about it. They did so. Edgecombe
told Wodarski that he had not called him a "g d liar." 3
Wodarski insisted that he had. Edgecombe asserted that he
could not because he did not use that sort of language. He
gave Wodarski and Hughes a lecture about his religious
scruples and way of life. Wodarski began to back down,
saying that Edgecombe might have used some expression
such as gol-darned rather than God damn. This did not
mollify Edgecombe. He said again that he had not used the
word liar to describe Wodarski at all. He said that what he
had said to Wodarski on September 11 was that the
statement to the effect that he had said on September 6
that the men were going to get no more than the then-
posted rate was a he. Finally, Edgecombe stated that he
had had enough of Wodarski and did not want him on the
job any more. The conversation ended on that note.
Wodarski returned to work as Edgecombe and Hughes left.
Around 3 that afternoon, Edgecombe returned, gave
3 There is no significant dispute between Wodarski and Edgecombe as to
what passed between them in their various conversations. Where they differ
as to details (for example, whether Edgecombe said on September 6 that the
posted rate was all he was going to pay the carpenters), I have followed
Edgecombe rather than Wodarski. In this connection, I was impressed by
Edgecombe's inability to speak the words "God damn liar" even on the
Wodarski two paychecks covering all the wages due him,
and laid him off.
About a week later Hughes told Wodarski that there was
a union carpenter job waiting for him at New York State
Electric and Gas . Wodarski declined it because he had
decided to get out of the labor movement by changing his
occupation. In December he obtained a Federal civil
service job with the Farmers Home Administration.
However, because of bureaucratic red tape, he did not
actually begin work until April 7, 1975.4
C. Analysis and Conclusions
This case is on all fours with Harold Leverson and John
Bohling d/b/a McDonald's Carry-Out Restaurant, 181
NLRB 1012 (1970). In McDonald's Leverson angrily and
illegally interrogated the three alleged discriminatees about
their protected concerted activities, then calmed down and
discussed their grievances with them. As he left the
restaurant, the manager and 'assistant -manager recom-
mended that he fire the three for reasons unrelated to their
efforts to organize, i.e., for their poor work performance.
Leverson went home and thought it over. He returned a
few hours later and discharged all three. The Board held
there was no violation of the Act. It reasoned that the
General Counsel had failed to prove an illegal motive
because, under the circumstances, "it is evident that in
discharging the three men [Leverson] was motivated by a
desire to support his supervisors and eliminate the working
problems which had been reported by them." The
circumstances were Leverson's initial "intuition" to fire the
men for engaging in organizational activities, his failure to
do it on the spot in their first confrontation, his subsequent
receipt of information about the men from his supervisors
and their recommendation that he discharge them, and the
hiatus of a few hours between his first and second
confrontations with the men.
Here, Edgecombe decided on September 9 to discharge
Wodarski for engaging in union activities. He was talked
out of it by Ruggiano and Hughes. There is no evidence,
express or implied, that by the end of his meeting with
Ruggiano and Hughes he harbored any further desire to
discharge Wodarski. After a hiatus of 4 days, he discharged
Wodarski because he resented Wodarski's putting the
words "God damn liar" in his mouth on September 11.
Like Leverson, he was moved to action by something
which occurred after he had toyed with and rejected the
idea of discharging for a reason proscribed by the Act.
There is no evidence, express or implied, that the animosity
he felt toward Wodarski on September 13 was related to
Wodarski's union activities. His own testimony of his
remark to Hughes, in Wodarski's presence, on September
13 as he made up his mind to discharge Wodarski
establishes just the opposite. Edgecombe testified, ".. .
and I turned to the business agent and I said, `I have had
enough of this man, from his not working and his visiting
witness stand and his consistent resorting to "g d liar" as a euphemism in
their stead.
4 The General Counsel's renewed motion to strike all the testimony on
which the findings of fact contained in this paragraph are based is hereby
denied
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and now calling me a liar. You said you were going to get
him another job. I don't want him on the job-any longer.' "
The exchange of September 13 was an -angry one with no
opportunity for dissembling. If Edgecombe had still
harbored any grudge against Wodarski for the union
activities which took place on or before September 9,
including his role in the pay rate dispute, he would have
expressed it then. The motive he did spit out was unrelated
to Wodarski's union activities. I find, therefore, on the
precedent of McDonald's, that the burden of proving that
the discharge was made because of Wodarski's union
activities has not been sustained by the General Counsel.
Upon the foregoing findings of fact, and upon the entire
record in this case, I make the following:
2. Local 532, United Brotherhood of Carpenters and
Joiners of America, is a labor organization within the
meaning of Section 2(5) of the Act.
3. The allegation of the complaint that George Edge-
combe, doing business as Willett Enterprises, violated
Section 8(a)(3) and (1) of the Act by discharging Henry
Wodarski, Jr., on or about September 13, 1974, for
engaging in union or other protected concerted activities
has not been sustained.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record in this proceed-
ing, and pursuant to Section 10(c), of the Act, I hereby issue
the following recommended
CONCLUSIONS OF LAW
1. George Edgecombe, doing business as Willett
Enterprises, is, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
ORDERS
The complaint is dismissed in its entirety.
In the event no exceptions are filed as provided by Sec. 102.46 of the 102.48 of the Rules and Regulations, be adopted by the Board and become
Rules and Regulations of the National Labor Relations Board, the findings, its findings, conclusions, and order, and all objections thereto shall be
conclusions , and recommended Order herein shall, as provided in Sec. deemed waived'for all purposes.