Laborers' Local 215, Laborers' International Union of North America, AFL-CIO (Research Cottrell, Inc.)

National Labor Relations Board - Board Decisions

Mar 8, 1982

260 N.L.R.B. 688 (N.L.R.B. 1982)

8DECISIONS O()F NAIIONA[. LABOR RELATIONS BOARD
Laborers' Local 215, Laborers' International Union
of North America, AFL-CIO (Research Cot-
trell, Inc.) and Paul Karas. Case 4-CB-40(40
March 8, 1982
DECISION AND ORDER
BY CHAIRMAN VAN Dt. WATER XNI)
MEMBItRS FANNING ANI) HUN I ER
On September 4, 1981, Administrative Law
Judge Charles M. Williamson issued the attached
Decision in this proceeding. Thereafter, the Gener-
al Counsel filed exceptions and a supporting brief,
and Respondent filed an answering 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
briefs and has decided to affirm the rulings, find-
ings,1 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 Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
' The General Counsel has excepted to certain credihiliti findings
made by the Administrative Law Judge. II is the Board's established
policy not to overrule an administrative law judge's resoluiions v' ith re-
spect to credibility unless the clear preponderalnce of all of the relevant
evidence convinces us that the resolutions are incorrect Stanrdard Drv
Wall Products. Inc., 91 NI RB 544 (195)), enfd. 188 2d 362 (3d Cirt
1951) We have carefully examined the record and find no hasis for re
versing his findings.
DECISION
STATEMENT OF I H. CASE
CHAR.LES M. Wi.I.IAMSON, Administrative Law Judge:
This proceeding came to hearing before me in Wilkes-
Barre, Pennsylvania, on March 23, 1981. The charge, al-
leging violation of Section 8(b)(l)(A) and (2) by Labor-
ers' Local 215 (herein referred to as Respondent), was
filed on June 13, 1980. The complaint issued on August
13, 1980. The complaint alleges that on or about April
21, May 22, and June 2, 1980, Respondent caused Re-
search Cottrell, Inc. (herein referred to as the Employ-
er), to discriminate against Paul Karas by "failing and re-
fusing to refer Paul Karas to employment by Research
because of the intra union activities of Paul Karas, and
based on arbitrary, and discriminatory considerations."
Subsequent portions of the complaint allege that Re-
spondent breached its duty of fair representation by its
260 NLRB No. 84
failure and refusal to refer Karas and that Respondent
violated Section 8(b)(l)(A) and (2) of the Act. Respond-
ent, by its answer dated August 15, 1980, denied the
commission of any unfair labor practices.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due considera-
tion of the briefs filed by the General Counseli and Re-
spondent, I find as follows:
FINI)INOGS OF FACT
I. JURISI)ICTION
The Employer is, and has been at all times material
herein, a corporation engaged in the business of con-
structing cooling towers and has been a subcontractor of
Bechtel Corporation at a power plant construction site in
Berwick, Pennsylvania. During the past year, which
period of time is representative of all times material
herein, the Employer received more than $50,000 for
performing services for Bechtel Corporation at the Ber-
wick. Pennsylvania, construction site. During the past
year, Bechtel Corporation purchased goods valued in
excess of $50,000 directly from points and places outside
the Commonwealth of Pennsylvania. The complaint al-
leges, Respondent admits, and I find that Research Cot-
trell, Inc., the Employer herein, is. and has been at all
times material herein, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
11. I ABOR ORC(ANIZA IION
Respondent admits and I find that it is a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. 1HE AI..I (;:DI) UNFAIR IlABOR PRACTICES
A. Karas' Layojf and Role in the Union Campaign
Paul Karas, the Charging Party herein, was employed
as a laborer by the Employer at Bechtel's power plant
jobsite in Berwick, Pennsylvania, from March 1976, to
February 1, 1980.2 On the latter date, he was laid off be-
cause of lack of work occasioned by poor weather. At
the time of the layoff, Karas went to Respondent's hiring
hall and registered on the layoff list. Respondent and the
Employer are parties to a collective-bargaining contract
(Jt. Exh. 2) which, inter alia, requires the Employer to
use Respondent's established hiring procedures. Joint Ex-
hibit 1, the hiring hall procedures, show on their face a
nonexclusive hiring hall arrangement. There is some evi-
dence, however, that the practice of the Employer was
to obtain its employees only through the hiring hall.
Under the hiring hall procedures applicants are referred
either in the order they signed the out-of-work list or, if
requested by name by the Employer, without reference
to their placement on the list. After signing the layoff
list, Karas contacted the Employer's general labor fore-
man, Lonnie Clark, to ascertain whether he might be re-
' Ihis term is used herein to designate counsel for the General Coun-
se I
2 All dates will be 1980) unless otherwise designated
688
LABORERS' LOCAL 215
called to work. Clark told him that when work was
available, he would specifically ask for Karas.
Prior to the events outlined above Karas had been in-
volved in an internal election campaign among Respond-
ent's membership. One Henry De Polo had been Re-
spondent's business manager for 25 years prior to his
death in 1978. Anthony Pollick was appointed by the ex-
ecutive board to serve out the remainder of De Polo's
last term which expired in May 1979 at which time an
election would take place to select the new business
manager. Pollick became a candidate in November 1978
for a full term as business manager. Karas initially sup-
ported Pollick, going so far as to place a Pollick sticker
on his hard hat. While Karas denied that he ever cam-
paigned for Pollick, it is apparent that he initially sup-
ported Pollick's candidacy and made that support known
to fellow employees. Later, in January 1979, Karas
switched and began to support a Charles De Polo, identi-
fied as the son of the deceased former business manager.
Karas' support for De Polo was open and aggressive
compared with his more limited activities on behalf of
Pollick. Karas solicited house to house on weekends and
placed a large De Polo sign on his truck. Pollick ad-
mitted at the hearing that Karas had informed him of the
change in allegiance. Other incidents between the two I
find to have taken place based on Karas' credited testi-
mony.3 Thus, sometime in March 1979, Pollick ran into
Karas at the Berwick jobsite and told him he could not
understand why Karas was supporting De Polo in light
of a favor which Pollick had done Karas.4 Karas told
Pollick everyone had to make up his own mind. In May
1979, again at the Berwick jobsite, Pollick saw Karas,
walked over, and rubbed a De Polo button Karas was
wearing. Several days after the May 1979 election, Karas
attempted to shake Pollick's hand in congratulation on
his victory5 and was told, "I don't shake hands with
turncoats." I conclude that at least in May 1979 Pollick
was resentful of Karas' turnabout.
B. The Employer's Attempt To Recall Karas
On March 18, the Employer began to recall laid-off
employees. Karas initially heard a rumor that he was
being requested by name, a fact which, if true (it was
not), would have given him immediate priority.6 In the
result, Karas received no call from Respondent until
August 5. At that time, he refused the referral because
he was working elsewhere.
Karas and Lonnie Clark testified that on each of three
occasions-April 19-21, May 22, and June 2-Clark re-
3 Pollick testified concerning several of these incidents but basicall, in
the sense of not "remembering" their occurrence Under these circum-
stances. I credit Karas
4 Helping get one of Karas' friends into the l.ocal
s Pollick won by a volte of 780 to 242 Joe Zalewski was present at the
handshake Incident but testified that he did not hear the reference to
"turncoats" as he had turned around and directed his attention elsewhere
Zalewski is the steward and can be replaced hb Pollick if the latter so
desires
s The General Counsel argues that this explains the discrepancy be-
tween the charge and the complaint The charge gises March 17 as one
of the dates on which Respondent discriminated while that date does not
appear in the ciomplaint The Mas 22 date does inot appear im the charge.
but the parties stipulated that Karas wa, requested hb the :mployer on
that date
quested Respondent to refer Karas for employment by
name. On each of these occasions Clark told Karas that
he had requested him by name. Clark testified that it was
not his normal procedure to inform employees that they
had been requested by name but he did so in Karas' case
because Karas had previously inquired about the possi-
bilities of recall, Clark had told him he would be, and
Clark wanted Karas to know he was keeping his word.
Karas testified that in each instance he made preparations
to receive Respondent's telephone call. Thus, on April
21 (when Karas had to sign for unemployment) he alleg-
edly made arrangements to have his mother-in-law, Lena
Menichelli, at the house. Menichelli testified that she was
at the Karas house on April 21 from about 8:30 a.m. to
1:30 p.m. and that Karas received no calls during that
time. Pollick testified that he called Karas at 11 a.m. on
April 21 and Respondent's records (G.C. Exh. 2) reflect
a call made at that time with the notation "N.A." mean-
ing "no answer." Karas and his wife, Ann Karas, testi-
fied that on May 17 their son (age 9 years) was taken to
the hospital because of an asthma condition. The doctor
recommended that their son be confined to home for a
period of 10 days. The bill for this visit is in evidence as
General Counsel's Exhibit 3. The General Counsel
argues that the son would not have been left unattended
during this time, based on the testimony of both Paul
Karas and his wife. However, the record leaves open the
possibility that there was some time during May 22 when
no adult was present. Respondent's records show that it
called Karas at 8:30 p.m. on May 22. (See G.C. Exh. 2.)
Karas testified that he made arrangements "[to] make
sure somebody was home at all times." Karas then stated
that he "couldn't be sure" he had not left the house after
5 p.m. that day to go to a little league baseball game.7
Karas had previously testified that, due to his son's con-
dition, arrangements had been made to have someone
with the boy at all times-Karas or his mother-in-law.8
In answer to the question, "If you had left your house,
what would you have done?" Karas replied, "Well, I
would have told my wife I was leaving and she'd be
there." Later, on cross-examination, Karas changed his
story and insisted that he was home the evening of May
22 .9 Karas' wife stated on direct examination that she did
not recall whether she went out on the evening of May
22. Karas' mother-in-law, as previously stated, was not
asked about May 22, although Karas' wife asserted that
she would have been there in her absence. I conclude on
the basis of the above facts that Karas and his wife were,
in fact, out of the house on the evening of May 22. I do
not credit their conclusionary and shifting testimony that
one or the other was home at all times that evening.' °
I Kara, was (on the little league board of directors and was assistant
manager and equipment manager
I 1'he mother-in-law. who testified concerning the April date, was not
asked about anll 'isits by her or telephione calls during the son's illness in
May She did nilt testify concerning the June allegations
Significantly, Karas stated on cross-examination that when his uncle
got home about 6 p nl otn May 22. he told Karas that the men called for
work had reported to work This fact is significant because, while this
testimuton does not establish that an> one had reported to .rork. if Karas
uncle said this. Karas would have been more hkely to go to the little
league gamer Karas stated that 1 hursdas night was a regular little league
night
I` None of the Karas children testified
689
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Both Karas and his wife again testified that they were
home at 2:50 p.m. on June 2 when Pollick asserted that
he called to refer Karas to a job. Both denied receiving
any call. Pollick testified that he called but there was no
answer.
C. Analysis
The General Counsel contends that (I) the hiring hall
was operated, de facto, on an exclusive basis; (2) Union
Representative Pollick "faked" telephone calls to Karas
to avoid referring him for employment; (3) Pollick did
this because he wished to retaliate against Karas because
of his union political activities of a year previous; and (4)
Respondent thereby violated Section 8(b)(1)(A) and Sec-
tion 8(b)(2) of the Act. The General Counsel cites New
York City Taxi Drivers Union, Local 3036, AFL-CIO
(Taxi Maintenance Corp.), 231 NLRB 965, for the propo-
sition that retaliation against union members for internal
political activity designed to oust incumbent union lead-
ership violates Section 8(b)(1)(A) and Local 808, United
Brotherhood of Carpenters (Building Contractors Associ-
ation), 238 NLRB 735 (1978), to show that failure to
refer an individual for discriminatory reasons in an exclu-
sive hiring hall situation violates Section 8(b)(2). Grant-
ing validity, arguendo, to the General Counsel's legal
contentions, I nevertheless do not find that the facts in
this case support the General Counsel's contentions. Spe-
cifically, I find that Pcllick made good-faith efforts to
contact Karas to refer him to work in April, May, and
June. I base this finding on the following considerations:
(1) As stated above, I do not credit either Karas or his
wife concerning their alleged presence at home when
Pollick called on May 22.
(2) There is a lapse of nearly a year between Karas'
political activities which allegedly motivated Pollick's
conduct and the alleged failure to refer. I find it exceed-
ingly doubtful that Pollick lay in wait for a year to take
his revenge even though he may have been resentful of
Karas in 1979.
(3) Karas never inquired of anyone at the hiring hall as
to why he was not contacted after he had been informed
by Clark that he had been requested. His various expla-
nations of this fact-that Pollick had been elected to do
a "job" and it was his obligation to contact Karas or that
it was a matter of "pride"-do not ring true. He was es-
sentially unemployed at the relevant times herein" and
the employment to be offered paid well.
(4) Karas seemed unsure, at times, as to Pollick's mo-
tives in allegedly not referring him for employment. At
one point in his testimony Karas stated that Pollick re-
taliated against him "because of the involvement of my
uncle in the [union] campaign." He then retreated from
this statement, asserting that Pollick's actions were "just
more or less to get at me, that's about it."
(5) Pollick credibly testified that two individuals-both
on the opposing slate of candidates prior to the May
1979 election-tore down his campaign signs prior to the
election. Both these men-Ron De Luca and Mike
Gaydos-were referred out of the hiring hall on March
18 and 28, respectively. I do not believe Pollick would
have retaliated against Karas for his routine campaigning
while leaving these individuals untouched.
CONCLUSIONS OF LAW
1. Research Cottrell, Inc., herein designated the Em-
ployer, is, and has been at all times material herein, an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. Laborers' Local 215, Laborers' International Union
of North America, AFL-CIO, herein designated Re-
spondent, is, and has been at all times material herein, a
labor organization within the meaning of Section 2(5) of
the Act.
3. Respondent has not committed the unfair labor
practices alleged in the complaint.
On the basis of the above findings of fact, conclusions
of law, and the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER 1 2
The complaint herein is dismissed in its entirety. 13
" He received some moneys from his little league activities Incredi-
hly, he also testified that during this time he was performing serv ices for
free in order to ingratiate himself with Lulak who, he hoped, would give
him employment Apparently, he later went to work for Lulak
12 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National L.abor 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 for all purposes
:' Errors im the transcript have been noted and corrected