Wolff & Munier, Inc.

National Labor Relations Board - Board Decisions

Jun 21, 1982

262 N.L.R.B. 333 (N.L.R.B. 1982)

WOLFF & MUNIER, INC.
Wolff & Munier, Inc. and Robert Campione. Case
22-CA- 10279
June 21, 1982
DECISION AND ORDER
BY MEMBERS JENKINS, ZIMMERMAN, AND
HUNTER
On November 6, 1981, Administrative Law
Judge Thomas T. Trunkes issued the attached De-
cision in this proceeding. Thereafter, the Respond-
ent filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
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, find-
ings,2 and conclusions3 of the Administrative Law
Judge and to adopt his recommended Order.4
ORDER
Pursuant to Section 10(c) 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, Wolff &
I The Board finds it inappropriate, in the circumstances presented here,
to defer to the decision of the Joint Conference Committee disposing of
grievances filed over the discharges that gave rise to the instant 8(aX3)
and (I1) allegations. Although Member Hunter favors the principles of de-
ferral established in Spielberg Manufacturing Company, 112 NLRB 1080
(1955), he finds that the instant record does not justify deferring to the
grievance award in this case. As set forth in the Administrative Law
Judge's Decision, the discriminatees, employees within the meaning of
the Act, were discharged explicitly for engaging in union activities. How-
ever, an ambiguously worded Joint Conference Committee award dis-
posed of the grievances filed over the discharges by stating that there
should be "no restriction" on Respondent's right to discharge these em-
ployees. Clearly, the National Labor Relations Act protects the right of
employees to engage in union activities, and Member Hunter will not
defer to a grievance award that indicates on its face that statutory protec-
tions have neither been considered nor have any application in these cir-
cumstances.
The Respondent has requested oral argument. This request is hereby
denied as the record, the exceptions, and the brief adequately present the
issues and the positions of the parties.
a We note that the employees who the Administrative Law Judge
found were threatened and discharged in violation of Sec. 8(aXl) and (3)
are classified foremen and, in one case, a general foreman. No contention
has been made, and the record evidence does not establish, that these in-
dividuals are supervisors within the meaning of Sec. 2(11) of the Act.
The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Producrs
Inc, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
3 We find without merit the Respondent's contention that the Adminis-
trative Law Judge exhibited prejudice in his conduct of the hearing.
4 In accordance with his partial dissent in Olympi Medical Corporation,
250 NLRB 146 (1980), 250 NLRB 146 (1980), Member Jenkins would
award interest on the backpay due based on the formula set forth therein.
262 NLRB No. 45
Munier, Inc., Elmsford, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, except
that the attached notice is substituted for that of
the Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER 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.
WE WILL NOT threaten employees with loss
of employment for engaging in protected con-
certed or union activities.
WE WILL NOT discourage membership in
Local Union No. 24 of the United Association
of Journeymen and Apprentices of the Plumb-
ing and Pipefitting Industry of the United
States and Canada, AFL-CIO, or any other
labor organization, by discriminating against
our employees in regard to hire or tenure of
employment or any other term or condition of
employment.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guarantee them by
Section 7 of the Act.
WE WILL offer to Ralph Campione, Robert
Campione, and Walter Dowd immediate and
full reinstatement to their former jobs or, if
their jobs no longer exist, to substantially
equivalent positions, without prejudice to their
seniority or other rights and privileges previ-
ously enjoyed.
WE WILI. make Ralph Campione, Robert
Campione, and Walter Dowd whole for any
loss of earnings suffered by them by reason of
their discriminatory terminations, with interest.
WOLFF & MUNIER, INC.
DECISION
STATEMENT OF THE CASE
THOMAS T. TRUNKES, Administrative Law Judge: The
above proceeding was heard in Newark, New Jersey, on
May 26, 1981, upon a charge filed on September 17,
1980, by Robert Campione, an individual, and a com-
plaint issued thereon on October 31, 1980, pursuant to
Section 10(b) of the National Labor Relations Act, as
333
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
amended, herein called the Act, which alleges that Wolff
& Munier, Inc., herein called Respondent, violated
Section 8(a)(1) and (3) of the National Labor Relations
Act, as amended, by threats to certain employees and by
discharge of three employees, including the Charging
Party.
All parties were represented at and participated at the
hearing,' and had full opportunity to adduce evidence,
to examine and cross-examine witnesses, to file briefs,
and to argue orally. Both counsel for the General Coun-
sel, herein the General Counsel, and Respondent waived
oral argument and both filed briefs. The issues presented
in this case are the following:
i. Whether Respondent, acting through its supervisor
and agent, Emil LeDoux, threatened employees with dis-
charge for speaking at union meetings against Respond-
ent, in violation of Section 8(a)(1) of the Act.
2. Whether Respondent, through Emil LeDoux, dis-
charged Robert Campione and Walter Dowd.
3. Whether Respondent, through Emil LeDoux, dis-
charged Robert Campione, Walter Dowd, and Ralph
Campione because of their assistance and activities on
behalf of Local Union No. 24 of the United Association
of Journeymen and Apprentices of the Plumbing and Pi-
pefitting Industry of the United States and Canada,
AFL-CIO, herein called the Union, or because they en-
gaged in other protected concerted activities in violation
of Section 8(a)(3) and (1) of the Act.
FINDINGS OF FACT
I. JURISDICTION
The pleadings established and I find that Respondent
is, and has been at all times material herein, a corpora-
tion duly organized under, and existing by virtue of, the
laws of the State of New York. At all times material
herein, Respondent, with its principal office and place of
business at 525 Executive Boulevard, Elmsford, New
York, is a contractor in the building and construction in-
dustry engaged in the business of performing mechanical
contracting in engineering construction work at various
jobsites located in the State of New Jersey, including a
construction site located at 800 Wilson Avenue, Newark,
New Jersey, and is now, and has been at all times materi-
al herein, continuously engaged at said jobsite in the
business of providing and performing mechanical, con-
tracting, engineering, and related services. In the course
and conduct of Respondent's business operations during
the preceding 12 months, said operations being repre-
sentative of its operations at all times material herein, Re-
spondent provided and performed services valued in
excess of $50,000, of which services valued in excess of
$50,000 were provided and performed within States of
the United States other than the State of New York
wherein Respondent is located. Respondent is, and has
been at all times material herein, an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
I The Charging Party was represented by the General Counsel only.
II. THE LABOR ORGANIZATION
Respondent stipulated at the hearing and I find that
the Union is, and has been at all times material herein, a
labor organization within the meaning of Section 2(5) of
the Act.
I1. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. Operations of Respondent
Respondent operates the Passaic Valley sewage treat-
ment plant at Newark, New Jersey, herein called the
Passaic Valley jobsite. At this jobsite are four buildings
designated as buildings 481, 483, 491, and 492. Buildings
491 and 492 are attached and are located approximately
1,200 feet distant from buildings 481 and 483.
At the jobsite, Respondent employs tradesmen from
various construction trades, including plumbers, carpen-
ters, steamfitters, and laborers, among others. 2 During
the months of August and September 1980,3 Respondent
employed approximately 30 plumbers, including 2 gener-
al foremen, 3 foremen, and several apprentice plumbers,
with the remainder classified as journeyman plumbers.
The superintendent of the Passaic Valley jobsite is Emil
LeDoux, hereinafer called LeDoux.
All the plumbers employed by Respondent were ob-
tained from an exclusive hiring hall operated by the
Union.
Ralph Campione, hereinafter called Ralph, was hired
as a journeyman plumber in March 1978. He became a
foreman in June or July 1978, and was promoted by Re-
spondent to general foreman in June or July 1979, the
position held until his termination on September 9.
Robert Campione, hereinafter called Robert, was hired
by Respondent in May 1979 as a foreman for building
492. He worked as a foreman until September 9.
Walter Dowd, hereinafter called Dowd, commenced
his employment with Respondent in August or Septem-
ber 1979 as a journeyman plumber. He remained on the
job until January 1980. In March 1980, he was rehired
by Respondent and approximately 3 months later, while
employed in building 483, he was promoted to foreman
and transferred to building 492, where he worked until
terminated on September 9.
2. Union activity of the alleged discriminatees
The Union held monthly meetings of its members. The
meeting scheduled for August 1980 took place on
August 28. Approximately 75 union members attended
the meeting, including approximately 10 plumbers em-
ployed by Respondent at the Passaic Valley jobsite. In-
cluded in this group were Ralph, Robert, and Dowd.
The testimony of Ralph, Robert, and Dowd, as well as
confirming testimony by Ray McDonough, another
plumber employed by Respondent, established that
during the course of the union meeting Ralph, Robert,
' The employees involved herein, including the alleged discriminateea,
are all plumbers and members of the Union.
a All dates, unless otherwise noted, refer to the year 1980.
334
WOLFF & MUNIER, INC.
and Dowd all complained to the union leadership with
respect to work duties normally performed by plumbers
being performed by members of other craft unions at the
Passaic Valley jobsite.4 Accusations were made that the
union officials were not performing their duties in seeing
that plumbing functions were performed by members of
the Union.
B. Events of September 9, 1980
1. Termination of Ralph Campione
Ralph testified that on September 9, he went to Le-
Doux's office to submit the time reports.5 According to
Ralph, LeDoux told him that he was terminating his em-
ployment. He further stated that he was aware of the
happenings at the union meeting and that he was "sick
and tired of the agents coming down on him." He fur-
ther declared that he had warned Ralph many times not
to be involved in union politics. Upon being questioned
by Ralph with respect to his work performance, LeDoux
responded that Ralph was a good general foreman and
that he was not dissatisfied with his work. He ended the
conversation by stating that he was going to "take care
of your brother, Bobby, and Walter Dowd next."
LeDoux responded to Ralph's testimony as follows:
LeDoux had initially decided to remove Ralph as the
general foreman and offer him a position as a journey-
man plumber. His reasoning was that there were too
many foremen in relation to mechanics and apprentices
and he felt that Ralph was not performing his duties as
foreman satisfactorily. LeDoux testified that, after notify-
ing Ralph of his plans, Ralph became belligerent, assert-
ing that LeDoux "had been fed up and had been told to
get rid of him." Upon hearing this, LeDoux changed his
mind and summarily terminated Ralph from all employ-
ment for Respondent.
2. Termination of Robert Campione and Walter
Dowd
Robert testified that early on the morning of Septem-
ber 9, while he and Ray McDonough were working, he
was summoned along with Dowd to LeDoux's office. He
testified that LeDoux's opening remark to him and
Dowd was that he was "sick and tired of having the
agents coming down on him." Robert responded that he
did not know what LeDoux was talking about. LeDoux
retorted that he was "sick and tired and did not want his
men jeopardizing Respondent by bringing discussions on
outside areas and political involvement. What he wanted
was the men working for him to do their jobs, to be re-
sponsible for Respondent in that area and not to say
nothing to nobody." Robert testified that Dowd, who
did most of the talking that day, responded to LeDoux
that "he can't accept that." adding, "we can't be yes men
on this job for anybody. If we see something wrong here
we can't-we don't look ourselves in the face and not
discuss it with somebody else pertaining to our local or
4 No evidence was adduced to indicate that any other members voiced
similar complaints.
s Submissions of time reports of journeyman plumbers were an integral
function of the general foreman.
anything else. We will do our work but as far as any
problems similarly to jurisdictional work or anything of
that nature, we're compelled by our union to discuss it."
After further discussion, LeDoux announced that he had
no other choice but to let Robert and Dowd go. He sug-
gested that they think about their decision and return in
an hour or so to notify him what the decision was.
Robert recalled that Dowd asked LeDoux about the
quality of their work, to which LeDoux answered that
he had no complaints.
Robert testified that he did not return to notify
LeDoux of his decision. At approximately 3:30 the same
afternoon, Herb Seifert, another general foreman, gave
Robert his paycheck, stating that he could not under-
stand what was happening and that he hated to see
Robert go.
Dowd testified that on September 9, while working at
the jobsite, Ralph informed him that he had been dis-
charged and that LeDoux wanted to see both Robert
and Dowd. Thereafter Robert and Dowd went to Le-
Doux's office, where LeDoux apprised both of them that
he had discharged Ralph and "if you men can stop your
political involvements and just do your job and don't get
involved in politics, I can keep you." Dowd responded
that "he's being asked to do something that he does not
think he can do." Shortly thereafter, Seifert told Dowd
that he did not understand why Robert and Dowd were
quitting. Dowd responded that he was not quitting, re-
turned to LeDoux's office, and informed him of that fact.
LeDoux responded, "I know you're not quitting, I'm let-
ting you go." Dowd confirmed Robert's testimony that,
approximately 3:30 p.m. that day, Seifert handed them
their paychecks, stating that he was sorry to see Robert
go.
LeDoux's version of his conversation with Robert and
Dowd on the morning of September 9 was as follows:
After LeDoux announced that Ralph had been dis-
charged, he stated to the two foremen, "I'm not interest-
ed in what you do after hours. Before 8 and after 4:30
you do as you please. It's none of my concern. During
that period of time between 8 a.m. and 4:30 p.m. you are
to conduct yourselves as supervisors and keep the men
working. That's it. I don't want to know any of your
problems. I don't know what your problems are, but I
do know because you told me." Both Robert and Dowd
responded that they could not do as asked. LeDoux
asked them to think about it and return later for their
final decision. As neither man returned within the allot-
ted time, he sent Seifert to ascertain their decision. Sei-
fert returned, stating, "They're going." He therefore
gave Seifert paychecks to be delivered to them later. He
did not speak with either Robert or Dowd any time after
that date.
Herbert Seifert testified as a witness for Respondent.
He stated that he is a general foreman of plumbers for
Respondent at the Passaic Valley jobsite, working at var-
ious times at the four locations in buildings 481, 483, 491,
and 492. He has been a member of the Union for the past
35 years. Seifert testified that, on September 9, LeDoux
asked him to find out what Robert and Dowd were
going to do, explaining to Seifert what had occurred ear-
335
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lier. He thereafter spoke to both Robert and Dowd and
was told that they were leaving, which message he re-
layed to LeDoux. He testified that later in the afternoon
he handed the two foremen their paychecks. Seifert also
testified that LeDoux informed him that Ralph was fired
but did not tell him that Robert or Dowd had been fired.
On cross-examination, Seifert admitted that LeDoux had
expressed to him that a problem existed involving juris-
dictional disputes which upset LeDoux. He directed Sei-
fert to find out if the men were staying or leaving as he
had afforded them an option. Seifert further testified
that, approximately a week or so later, LeDoux ac-
knowledged that he was sorry to see the men go and,
"this thing with the Union, the talk about who does this
and who doesn't do it was getting out of hand and he
brought it up to them, you know, that was their option
that they had, either they could work as foremen or they
would leave the job." Seifert also acknowledged that
Dowd and Robert were good foremen.
C. Post-Termination Events
1. Involvement of Shop Steward Smith
Joseph Smith, an employee for Respondent as a jour-
neyman plumber for approximately 4 years, and the shop
steward for the Union at the jobsite, testified as follows:
Smith discovered that the three foremen were terminated
when Ralph and Dowd so informed him at the end of
the working day on September 9, about 3:45. Smith told
them that it was too late to notify the Union of the ter-
minations which he would do the following day, and fur-
ther stated that he would approach LeDoux to inquire as
to the reasons for the terminations inasmuch as it was un-
usual for three foremen, one of whom was a general
foreman, to be let go at the same time. The next morn-
ing, Smith called the union hall and informed Connie
Hoffman, a union official, what had happened. Hoffman
responded that he knew about it. Following that, Smith
visited LeDoux and asked for the reasons for the dis-
charge of the three alleged discriminatees. LeDoux re-
sponded that Robert and Dowd both could stay on the
job if they wished, but they were to pay strict attention
to the work they were employed to do and "if they see
anything to our work, if the fitters were doing our work,
just to pay strict attention to doing the job they were
employed to do." LeDoux further stated that there was
no way that he would keep Ralph on the job, asserting
that he was fed up with Ralph's politicking on the job
and that he caused too many problems in the union hall.
LeDoux did admit that Ralph was a good foreman who
did his job, "but that he fed up with all the politicking
on the job-too much discussion in the union hall and he
was slandering Wolff & Munier he was giving Wolff &
Munier a bad name and he had to let Ralph go."
LeDoux also stated that he was pleased with the work of
Robert and Dowd.
2. Filing of the grievance with the Union
Ralph testified that, although the three discharged em-
ployees had informed the shop steward of their prob-
lems, they were aware that he would not be in a position
to obtain their jobs back for them. Therefore, the three
discriminatees journeyed to the union hall the following
day to complain to James McManus, a union official,
who assured them that he would handle the matter
henceforth. Hearing nothing from McManus or Smith,
and having only 10 days under the union rules to file a
grievance, the alleged discriminatees filed a grievance
with the Union's "E" board. The Union's E board con-
sists of the vice president and four or five members who
sit on the board. The E board concluded that the men
had a legitimate grievance and arranged for a joint con-
ference committee hearing consisting of five mechanical
contractors and five officers of the Union. The joint con-
ference committee was held on November 5 at the office
of the Mechanical Contractor Association in East
Orange, New Jersey. The joint committee voted that
there was no restriction for an employer to terminate a
foreman as the employer had the right to appoint him
and therefore had the right to terminate him.6
D. Contention of the Parties
1. Contention of the General Counsel
It is the contention and argument of the General
Counsel that the facts as elicited from the General Coun-
sel's witnesses, as well as the credited facts elicited from
Respondent's witnesses, together with the exhibits sub-
mitted by the parties, clearly demonstrate that Respond-
ent was in violation of Section 8(a)(1) upon making
threats to the alleged discriminatees forbidding them
from discussing union matters involving Respondent's
operations. Further, the General Counsel contends that
both Robert and Dowd were discharged because of their
failure to comply with the demands of Respondent.
Lastly, the General Counsel contends that Ralph was
discharged for having protested, in union meetings, work
assignments of Respondent.
2. Respondent's contention
Respondent contends that an employer can regulate
the conduct of its employees while at the workplace, in-
cluding the prohibition of union activity during working
hours. In addition, an employer has the right to hire and
fire as its chooses, provided it is not being discriminato-
ry. Firing an employee as a result of unfounded accusa-
tions is not violative of the Act. Respondent further con-
tends that the General Counsel has not made a prima
facie case showing that protective conduct was a moti-
vating factor in Respondent's decision to discharge
Ralph Campione.
E. Analysis and Discussion
1. Termination of Ralph Campione
As in the vast majority of cases involving alleged dis-
criminatory discharges of employees in violation of
Section 8(a)(3) and (1) of the Act, credibility resolution
6 See Resp. Exh. 3. It should be noted that, according to Ralph. the
joint conference committee was proceeding along when Business Man-
ager James McManus stated that three alleged discriminatees also had
filed charges with the NLRB. Following that, the procedure was termi-
nated.
336
WOLFF & MUNIER, INC.
is of paramount importance. The cases are legion in
which the Board has found violations of Section 8(aX3)
and (I) with respect to illegal discharges. Each case must
rise or fall on the factual determinations made by the ad-
ministrative law judge. The instant case is no exception
to this rule. For reasons discussed infra, I have conclud-
ed that the account of the conversation rendered by
Ralph as against that rendered by LeDoux with respect
to the conversation conducted by the two individuals in
LeDoux's office on September 9 will be credited. There-
fore, I have concluded that the termination of Ralph
Campione by Emil LeDoux, acting as agent for Re-
spondent, is violative of Section 8(aX3) and (1) of the
Act.
The reasons offered by Respondent for the termination
of Ralph are twofold: (1) For sometime Ralph's perform-
ance had deteriorated and he was no longer performing
his duties as a general foreman as expected by Respond-
ent; and (2) there were too many supervisors on the job-
site in relation to the number of employees supervised by
foremen so that it was necessary to cut back on the
number of foremen on the job, and Ralph was chosen
because of his poor performance record.
I credit Ralph who testified that, in a conversation
with LeDoux in his office on September 9, LeDoux ad-
mitted to him that he was a good foreman, being one of
the best he had. This is verified by Joseph Smith, a shop
steward of the Union, who testified that LeDoux related
to him that Ralph was a good foreman. LeDoux in his
own words asserted during the hearing that a mechanic
becomes a foreman because he is better than the average
mechanic. There is no dispute that LeDoux was Re-
spondent's agent principally responsible for the promo-
tion of Ralph to foreman and later to general foreman.
LeDoux testified that he is uncertain when Ralph's per-
formance began to deteriorate, but first spoke to Ralph
in 1979 before Ralph became a general foreman. LeDoux
was very vague on this matter. He issued no written
warnings to Ralph. but stated that he spoke to him
orally. As Ralph was promoted subsequent to this discus-
sion that LeDoux allegedly had with him with respect to
his work performance, I cannot credit LeDoux's state-
ment that Ralph's performance began to deteriorate in
1979. LeDoux was unable to explain, or failed to explain,
what motivated him to promote Ralph to the position of
general foreman if, prior to the promotion, he had al-
ready determined that Ralph's performance was deterio-
rating.
With respect to the supervisory ratio, Respondent's
counsel, in his brief, summed up the General Counsel's
Exhibits 2(a) through 2(i) which revealed the following:
Week Ending
8/5
8/12
8/19
8/26
9/2
9/9
Jour- Appren-
neymen tices
29
28
23
23
23
23
3
3
3
3
3
3
Fore-
men
Em-
ployed
6
6
6
6
6
6
Fore-
men
Re-
quired
4
4
3
3
3
3
Week Ending
9/16
9/23
9/30
Jour- Appren-
neymen tices
22
22
23
3
3
3
Fore-
men
Em-
ployed
4
4
4
Fore-
men
Re-
quired
3
3
3
Respondent thereafter argues that, as this is proof that
there was an abundance of foremen on the jobsite, some-
one had to be let go.
The agreement effective from May 1, 1979, to April
30, 1981, between Respondent and the Union contains
the following paragraph in section 12 under wages and
fringe benefits:
12.2 On any job where there are two (2) or more
journeymen employed, a foreman shall be designat-
ed by the employer. This foreman shall supervise no
more than eight (8) journeymen. This foreman shall
receive $1.10 per hour more than the hourly rate
for journeymen. When more than eight (8) journey-
men are employed, another foreman shall be desig-
nated by the employer. This foreman shall receive
$1.10 more than the hourly rates for journeymen.
When more than sixteen (16) journeymen are em-
ployed, a general foreman shall be designated by
the employer. The general foreman shall receive
$1.60 per hour more than the hourly rate for jour-
neymen. When more than thirty-two (32) journey-
men are employed, an assistant general foreman
shall be designated by the employer. He shall re-
ceive $1.35 per hour more than the hourly rate for
journeymen. All foremen shall be guaranteed a full
week's work of five (5) days.
LeDoux stated that he abided by contract rules relat-
ing to the ratio of foremen and journeyman mechanics.
However, an analysis of the contract terms discloses
that, in addition to a general foreman, should more than
32 journeymen be employed, an assistant general fore-
man shall be designated by the employer. At no time
during the hearing, in its brief, or anywhere else has Re-
spondent explained why, instead of having one general
foreman and one assistant general foreman, he had em-
ployed Ralph and Herb Seifert as general foremen, with-
out any distinction made with respect to one being sub-
ordinate to the other. In addition, the contract states that
a foreman shall supervise no more than eight journey-
men, and further states that, where there are two or
more journeymen employed, a foreman shall be designat-
ed by the employer. I do not interpret this contract term
to signify that the employer is precluded from employing
more than one foreman for each eight journeymen. The
contract is clear that, after the employment of two or
more journeymen, a foreman shall be designated. It
clearly states that there must be a foreman for every
eight journeymen, at the least. Robert testified that he
supervised between one and two employees. This was
not disputed by anyone. The shop steward explained
337
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that, although there were five foremen, there were in re-
ality only three foremen, as the two general foremen
were not obligated to supervise any gangs. Ralph credi-
bly explained that the principal function of a foreman
was to oversee the work of the journeymen and to see
that they were performing their job as expected. A fore-
man thus could not cover a vast area. Therefore, de-
pending on the locale of the journeymen, Respondent
had to employ foremen to oversee the performance of
the journeyman mechanics. For this reason Robert,
working in a particular area, only supervised at maxi-
mum two journeyman mechanics.
It is noteworthy that LeDoux testified that the last of
the foremen to be hired was James Connallon who had
become a foreman 3 weeks before September 9. This
would have occurred sometime in the middle of August.
Yet General Counsel's Exhibit 2 reveals that, throughout
the entire month of August, six foremen were employed,
whereas Respondent required at most four foremen. Re-
spondent offered no explanation, through either testimo-
ny or argument, on what basis Connallon received his
employment as a foreman during a period of time an
excess of foremen existed. Further, LeDoux testified that
he discussed the matter with Francis Chang, the project
manager at the jobsite, who had agreed with him that a
cutback was necessary. It should be noted that Chang,
according to Respondent's Exhibit 3, testified at the joint
conference committee meeting relating to the termination
of the three alleged discriminatees on November 5. How-
ever, for reasons unexplained by Respondent, Chang was
not called as a witness to verify the statement of
LeDoux.
Furthermore, LeDoux testified that the Company was
losing money and that he had told Ralph verbally that it
was in part Ralph's poor performance that caused this fi-
nancial loss to the Company. LeDoux stated that the
company records would show that money was being
lost. He did not recall which company official advised
him of this matter, but insisted that the company records
would show a loss of money. However, at no time was
any company official called to testify, nor did LeDoux
nor anyone else come forth with any company records
to substantiate LeDoux's testimony.
Lastly, I have carefully evaluated the testimony of
Joseph Smith, the shop steward of the Union, an em-
ployee of Respondent at the jobsite. Smith testified that
when he asked LeDoux the following day the reasons
for the discharge of the employees questioned, LeDoux
stated that Ralph caused too many problems in the union
hall and that "he was sick and tired of his politicking and
slandering" Respondent. He further testified that
LeDoux acknowledged that Ralph was a good foreman
and that he performed his job. This testimony was not
disputed by Respondent in any manner. Neither did
LeDoux refute Smith's testimony in any mode, nor did
Respondent argue in its brief why Smith's testimony
should not be credited. Therefore, I have no reason to
discredit Smith who essentially supported Ralph's testi-
mony.
For the myriad of reasons listed supra, I have conclud-
ed that the termination of Ralph Camione by Respondent
occurred as a result of his protective concerted and
union activities, and thus is in violation of Section 8(a)(3)
and (I) of the Act.
2. Termination of Robert Campione and Walter
Dowd
For reasons stated infra, I find and conclude that
Robert and Dowd were terminated by Respondent be-
cause of their protected concerted and union activities.
Although LeDoux insisted that the employees quit and
were not terminated by him, I credit Dowd's testimony
that, upon being informed by Seifert that he did not
know why the two individuals were quitting, he an-
nounced that he was not quitting and went to LeDoux's
office to inform him that he was not quitting, to which
LeDoux's response was, "I know you're not quitting, I'm
letting you go." Dowd impressed me as a sincere, forth-
right individual who apparently had good recall of the
facts surrounding the incident of September 9. I credit
him on all matters in which there is conflict of testimony
between LeDoux and him.
During cross-examination by the General Counsel,
LeDoux asserted, with respect to Robert, that "we actu-
ally laid him off-he quit." Although Respondent may
argue that this was a normal slip of the tongue, I find it
incredible that LeDoux, while insisting that the two indi-
viduals had quit, would testify, in any manner, that they
were laid off.
Furthermore, LeDoux's explanation for consulting
with Robert and Dowd, following the termination of
Ralph, lacks credibility. He asserted that he wanted to
alert all his foremen that they were not to discuss union
matters while on the jobsite. However, he does acknowl-
edge that neither Seifert nor Connallon was consulted on
this subject matter. I can understand his failure to discuss
the matter with Seifert, a general foreman who worked
closely with LeDoux. However, inasmuch as the facts
establish that Connallon was a recently appointed super-
visor of less than 3 weeks' duration, it would appear that
he would be in need of such instructions from LeDoux
as much as, if not more than, the three alleged discrimin-
atees interviewed by LeDoux on that date. His failure to
discuss the matter with Connallon is indicative of his
awareness of the participation of the three alleged discri-
minatees at the union meeting of August 28, and not of
his concern of his foremen discussing matters not relating
to their work performance on the jobsite.
Assuming, arguendo, that both Robert and Dowd quit
their employment rather than being discharged by Re-
spondent, as counsel for the General Counsel correctly
indicates in her brief, to condition employment upon
abandonment by employees of Section 7 rights is equiva-
lent to discharging them outright for union activity
(Block-Southland Sportswear, Inc., 170 NLRB 936, 938
(1968)).7
I have carefully considered the briefs submitted by counsel for Re-
spondent in this matter. However, I must reject both the facts as related
by Respondent and the arguments which flow from the facts. I find noth-
ing in this case to indicate that the Union, or any of its representatives,
participated in a slowdown or strike and there is nothing to indicate that
Sec. 8(bX4XD) of the Act has been violated by the Union in any manner.
Assuming that such may be the case, this matter is not before me at this
time as no charges have been filed, nor has a complaint issued with re-
spect to any possible violations of the Act by the Union or its members.
338
WOLFF & MUNIER, INC.
3. Threat to discharge Robert Campione and Walter
Dowd
Having credited the testimony of Dowd and Robert, I
further conclude that, prior to the termination of these
employees, Respondent, through Emil LeDoux, its agent
and supervisor, threatened these employees with dis-
charge for engaging in union activities in violation of
Section 8(a)(1) of the Act. The Board has held on many
occasions that such statements as I charge to LeDoux
were violative of the Act. As recently as this year, the
Board has found an 8(a)(l) violation when a representa-
tive of a company stated, "I heard what you said at the
union meeting and I can't have you running around talk-
ing about your problems." (Cecil Walker Machinery Co.,
257 NLRB 536 (1981).)
Although counsel for Respondent argues in his brief
that an employer has the right to regulate the conduct of
its employees while working at the employer's place of
business, I do not find his argument persuasive as the
facts provided by him and the legal conclusions drawn
from them are inapposite to the facts and conclusions of
the instant case.
During the course of the hearing, Respondent offered
evidence and argued that the discharges of the three in-
dividuals had been settled previously through an arbitra-
tion proceeding and therefore the Board should be
bound by this proceeding. The evidence establishes that,
at a joint council meeting between representatives of the
Union and Respondent, it was agreed that an employer
had the right to hire and discharge foremen as he saw fit.
The matter was not presented to an arbitrator thereafter.
At no time was the matter of unfair labor practices dis-
cussed between the parties.
Pursuant to settled Board authority, the Board will
withhold its jurisdiction and defer to a decision by either
an arbitrator or bipartisan panel s empowered to render
final and binding decisions with respect to grievances
under a collective-bargaining agreement, where said de-
terminations arise from a proceeding, fair and regular on
its face, where all parties have been bound, and where
the decision is not repugnant to the purposes and policies
of the Act. See Spielberg Manufacturing Company, 112
NLRB 1080 (1955). However. in the instant case, there is
not a scintilla of evidence that the joint council consid-
ered, in any manner, a possible unfair labor practice, as
charged herein. Accordingly, I am compelled to reject
Respondent's argument. 9
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III
above, occurring in connection with the operations of
Respondent described in section I above, 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.
s Denver-Chicago Trucking Company. Inc., 132 NLRB 1416 (1961).
9 See Owens Corning Fiberglas Co., 236 NLRB 479 (1978).
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom and to take certain
affirmative actions designed to effectuate the policies of
the Act.
Respondent, having discharged Ralph Campione,
Robert Campione, and Walter Dowd because of its
desire to rid itself of militant union adherents and not
having thereafter offered reinstatement to them, I recom-
mend that Respondent offer them immediate and full re-
instatement to their former positions or, if such positions
have been abolished or changed in Respondent's oper-
ations, then to any substantially similar position without
prejudice to their seniority or other rights and privileges
and that Respondent make them whole for any loss of
pay they may have suffered by reason of Respondent's
discriminatory terminations of them, by payment to each
of them a sum equal to that which they would have nor-
mally received as wages from September 9, 1980, the
date of their terminations until Respondent offers them
reinstatement, less any net earnings for the interim
period. Backpay is to be computed on a quarterly basis
in the manner established by the Board in F. W. Wool-
worth Company, 90 NLRB 289 (1950), Isis Plumbing A
Heating Co., 139 NLRB 716 (1962), and Florida Steel
Corporation, 231 NLRB 651 (1977).
CONCI LUSIONS OF LAW
1. Respondent Wolff & Munier, Inc., is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Local Union No. 24 of the United Association of
Journeyman and Apprentices of the Plumbing & Pipefit-
ting Industry of the United States and Canada, AFL-
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By discharging Ralph Campione, Robert Campione,
and Walter Dowd, its employees, because of their activi-
ties on behalf of the Union, Respondent discriminated
against said employees in violation of Section 8(a)(3) and
(1) of the Act.
4. By threatening employees with loss of employment
should they engage in protected concerted and union ac-
tivity, Respondent violated Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in this case con-
sidered as a whole, I hereby recommend the following:
ORDER ' O
The Respondent, Wolff & Munier, Inc., Elmsford,
New York, its officers, agents, successors, and assigns,
shall:
'0 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived fir all purposes
339
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from:
(a) Threatening employees with discharge for engag-
ing in protected concerted and union activities.
(b) Discouraging membership in Local Union No. 24
of the United Association of Journeymen and Appren-
tices of the Plumbing & Pipefitting Industry of the
United States and Canada, AFL-CIO, or any other labor
organization, by discriminating against employees in
regard to hire or tenure of employment or any term or
conditions of employment.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Offer to Ralph Campione, Robert Campione, and
Walter Dowd immediate and full reinstatement to their
former jobs or, if their jobs no longer exist, to substan-
tially equivalent positions without prejudice to their se-
niority or other rights and privileges.
(b) Make Ralph Campione, Robert Campione, and
Walter Dowd whole for any loss of pay suffered by
them by reason of their discriminatory termination in the
manner set forth in the section herein above entitled
"The Remedy."
(c) 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
records necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Post at its Passaic Valley sewage plant jobsite lo-
cated in Newark, New Jersey, copies of the attached
notice marked "Appendix."'' Copies of said notice, on
forms provided by the Regional Director for Region 22,
after being duly signed by an authorized representative
of Respondent, shall be posted by Respondent immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to ensure that said notices are not altered, de-
faced, or covered by any other material.
(e) Nofity the Regional Director for Region 22, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
I In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
340