MRC Carpenters Union Local 2012 (Forcine Concrete & Construction Co., Inc.)

National Labor Relations Board - Administrative Judge Opinions

May 18, 2011

04-CB-010520 (N.L.R.B. May. 18, 2011)

JD-30-11
Malvern, PA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
METROPOLITAN REGIONAL COUNCIL OF
CARPENTERS, SOUTHEASTERN
PENNSYLVANIA, STATE OF DELAWARE,
AND EASTERN SHORE OF MARYLAND,
AND ITS AFFILIATED LOCAL,
CARPENTERS UNION LOCAL 2012
and Case 4-CB-10520
FORCINE CONCRETE & CONSTRUCTION
CO., INC.
Edward J. Bonnett, Jr., Esq. for the General Counsel.
Stephen J. Holroyd, Esq., (Jennings Sigmond, Philadelphia, Pennsylvania)
for the Respondent.
Marc Furman and Melissa Angeline, Esqs., (Cohen Seglias Pallas Greehall & Furman, PC
Philadelphia, Pennsylvania)
for the Charging Party.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case was tried in Philadelphia,
Pennsylvania on March 28, 2011. Forcine Concrete and Construction Co., Inc., the Charging
Party, filed the charge on July 28, 2010 and the General Counsel issued the complaint on January
20, 2011.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, Respondent and the Charging Party I
make the following
JD-30-11
2
FINDINGS OF FACT5
I. JURISDICTION
Forcine Concrete & Construction Co., Inc., a corporation, operates a concrete
construction business with a facility in Malvern, Pennsylvania. During 2010, Forcine purchased 10
and received goods valued in excess of $50,000 directly from points outside the State of
Pennsylvania. I find that Charging Party Forcine is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act and that the Union, Metropolitan Regional
Council of Carpenters (hereinafter MRC) and its affiliated local, Carpenters Local 2012, are
labor organizations within the meaning of Section 2(5) of the Act. 15
II. ALLEGED UNFAIR LABOR PRACTICES
The General Counsel’s complaint alleges that Respondent MRC violated Section
8(b)(1)(A) of the Act by entering on a construction site in Rydal Park, Pennsylvania and 20
interrogating Charging Party Forcine’s employees at that site about their immigration status and
videotaping these interrogations. The complaint also alleges that Carpenters Local 2012 violated
Section 8(b)(1)(A) by editing the videotape taken by MRC and posting the edited video on Local
2012’s Facebook page and on You Tube.
25
The Union initiated a salting campaign aimed at getting Forcine Concrete, a non-union
concrete construction company, to hire some of its members including some of it council
representatives (business agents) and organizers in September 2009. Forcine did not hire these
applicants. The Union filed unfair labor practice charges alleging that Forcine had violated the
Act in refusing to consider its members for hire and refusing to hire them. These charges were 30
settled prior to instant hearing.
On June 4, 2010, four full-time employees of the Union, Business Agent or Council
Representative Robert Burns, Organizers William Dyken, Michael Griffin and Richard Rivera
went to a job site in Rydal Park, Pennsylvania, where Forcine was working as a subcontractor in 35
the construction of an addition to the Presbyterian Inspired Living project. The General
Contractor at the site was Whiting-Turner Company. On June 4, 2010, Forcine had 12-14
employees on this jobsite who were installing reinforcing steel bars.
Burns, Dyken, Griffin and Rivera, wore matching blue polo shirts, khaki pants and white 40
hardhats. All appeared to be wearing some sort of uniform. However, their clothing did not
identify them as union representations or give any indication who or what they represented.
Rivera, who speaks Spanish, as well as English, carried a video recorder. The four
entered the jobsite without asking anyone for permission and climbed a ladder to the second 45
floor where a number of Forcine employees were working.
With Dyken acting as spokesman and Rivera translating from Spanish to English, the
four announced they were doing an inspection and began to ask Forcine’s employees questions.
Most of the questions were directed to several Hispanic employees, and primarily concerned 50
their immigration status, but also covered other subjects, such as how long they had worked for
Forcine, how they were hired and how they were being paid. The questioning continued for
JD-30-11
3
almost 20 minutes until Thomas Romano, the senior Forcine representative at the jobsite, asked 5
the four for identification. When he did so, the four climbed down the ladder to ground level and
continued their interrogation of at least one other Hispanic Forcine employee working at ground
level. Rivera videotaped the interrogations. The DVD of the union representatives’ presence on
the site, most of which shows them interrogating Forcine employees, runs for 18 minutes are 10
seconds, Jt. Exh. 2. There is no credible evidence in this record regarding the immigration status 10
of any of Forcine’s employees.
At no time did the four union representatives identify themselves or mention the Union or
unions. They made no effort to state by what authority they were on the jobsite or by what
authority they were interrogating Forcine’s employees. The DVD of the interrogations taken by 15
organizer Rivera establishes that the questioning was done in a very intimidating manner. The
Union agents bullied the employees they interrogated. It is also apparent that the four union
representatives prevented the Forcine employees from working while they were questioning
them.
20
In this regard, I note that parties stipulated that, “for the duration of the questioning, the
employees being questioned by MRC agents were not working,” Jt. Exh. 1, p. 2, # 12. This is
true only in the literal sense. However, these employees were not on break and were not
working during their interrogations because the MRC agents interfered with their work activities.
I draw this inference in part because the video at times shows employees in the background who 25
were working while the interrogations were taking place. Moreover, nothing in the video or
elsewhere in the record suggests that the interrogated employees were not supposed to be
performing work during the period MRC agents were questioning them.
Furthermore, MRC’s agent Dyken at one point told Forcine employees that he and the 30
other “inspectors” would leave the second floor deck and return in a half-hour. Dyken told them
that he wanted to see documentation of their immigration status at that time. This would have
required some employees to stop working and leave the second floor on which they were
working to obtain such papers, if they had them.
35
The MRC submitted the unedited videotape of its June 4 visit to Forcine’s jobsite to the
NLRB in an effort to show that Forcine had hired employees while it was refusing to hire MRC
applicants.
The MRC edited the videotape and put a 4 minute 24 second version on You Tube with 40
commentary. The video was viewed on You Tube 28,961 times and there were 211 comments
posted about the edited video. On July 12, 2010, Carpenters Local Union 2012 linked the You
Tube video to its Facebook page.
Analysis
45
Section 8(b)(1)(A) states that it shall be an unfair labor practice for a labor organization
or its agents to restrain or coerce employees in the exercise of the rights guaranteed in section 7
of the Act. Those section 7 rights are that, “employees shall have the right to self-organization,
to form, join, or assist labor organizations, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the purpose of collective 50
JD-30-11
4
bargaining or other mutual aid or protection, and shall have the right to refrain from any or all 5
such activities except to the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment as authorized in section
8(a)(3).”
I find that the union representatives restrained and coerced Forcine’s employees when 10
they entered the jobsite on June 4, 2010 and interrogated them about their immigration status and
other matters. What is a more difficult question is whether the Union restrained and coerced
these employees in the exercise of their Section 7 rights, thus violating the National Labor
Relations Act.
15
Although the Union’s conduct may violate trespassing and other laws, I conclude that it
does not violate the National Labor Relations Act. Forcine’s employees were not exercising any
right guaranteed by Section 7 of the Act when interrogated by the Union’s agents. Section 7
guarantees the right to engage in certain conduct and to refrain from certain conduct. In order to
refrain from conduct, I conclude that employees must be presented with a choice as to whether to 20
engage in activity or not. That is not the case in this matter. I conclude that Section 7 is not so
broad as to protect simply working in situations in which the employee is not confronted with a
choice between engaging in protected activity or not.
In Teamsters Local 890 (Basic Vegetable Products) 335 NLRB 686 (2001) the Board 25
found that the Union violated the Section 7 rights of employees who were hired as replacements
for the Union strikers, when it videotaped their license plate numbers. The only Section 7
activity that those employees had engaged in was accepting a job with a non-union employer, as
is the case with Forcine’s employees. However, the employees were confronted with a choice by
the union’s conduct; whether or not to continue working in the face of union activity which 30
called for at least their passive support in honoring the union’s picket line.
A similar case is Electrical Workers Local 98 (MCP Services), 342 NLREB 740, 752
(2004). There the Board found that the Respondent Union violated Section 8(b)(1))(A) when a
union organizer used his vehicle to block an employee, Vincent Ponticello, from operating his 35
forklift. As in the Local 890 case, Ponticello knew who was preventing him from working and
why. He had met with union officials previously and they had asked him to support their
organizing effort. The only protected activity that Ponticello was engaged at the time of the
union’s conduct was performing work for his non-union employer. However, he would have
reasonably connected the Union’s conduct to its solicitation of his support. Thus, the Electrical 40
Workers were coercing Ponticello in deciding whether or not to support their organizing
campaign.
The General Counsel also cites Electrical Workers Local 48 (Oregon-Columbia Chapter
of National Electrical Contractors Association), 342 NLRB 101 (2004). In that case, the Board 45
found a violation of 8(b)(1)(A) because the union operated its hiring hall in such a manner as to
reward members who participated in its salting campaigns, to the detriment of those who did not.
This manner of operation clearly had to tendency to coerce members into engaging in union
activity from which they might otherwise have refrained, and is thus not relevant to the situation
confronting Forcine’s employees.50
JD-30-11
5
Still another case cited by the General Counsel is Electrical Workers Local 98 (TRI-M 5
Group, LLC), 350 NLRB 1104 (2007). In that case union pickets impeded the ability of an
employee of a non-union electrical contractor from dumping a load of debris into a dumpster
with a backhoe for a half-hour. Although not specifically addressed, I infer that the union did so
to coerce the employee into assisting it in its labor dispute with his employer, thus also making
the case distinguishable from the instant one.10
The interrogations of Forcine’s employees could only have been calculated to discourage
them from working for Forcine and had a reasonable tendency to do so. Regardless of whether
or not Forcine’s employees were in the United States legally, the conduct of Respondent had a
reasonable tendency to restrain them from continuing their employment with Forcine. However, 15
the Union’s conduct in this case did not present Forcine’s employees with a choice between
engaging in protected activity or not.
I also conclude that the Union did not violate Section 8(b)(1)(A) by the posting of the
edited version of the DVD on You Tube and by Local 2012 linking the You Tube posting its 20
webpage. It is reasonably likely that Forcine employees would become aware that the video in
which they were portrayed was posted on You Tube and that they would visit the You Tube site.
It is also reasonably likely that other non-native Hispanic employees would see You Tube video.
If so, they would see the strong feelings incited by video and would likely be restrained or
inhibited from continuing to work at Forcine jobsites or for other non-union contractors. By 25
viewing the You Tube video, they would learn, if they did not already know, that it was the
Union performing the interrogations on June 4. However, as with the interrogation itself, the
postings on You Tube and Facebook did not present employees with a choice of engaging in
protected activity or refraining from engaging in protected activity.
30
There is no evidence that any of Forcine’s employees or other non-union employees
viewing the You Tube video and Facebook page were aware of a labor dispute between MRC
and Forcine. There is no evidence of that any of these employees were aware of Respondent’s
salting campaign or the unfair labor practice charges filed by the MRC. Thus, non-union
employees were not being coerced or restrained with respect to supporting the Union in these 35
matters.
CONCLUSION OF LAW
The Respondent Union in interfering with employees’ work at Forcine’s non-union 40
jobsite and interrogating them about their immigration status and other matters and videotaping
JD-30-11
6
the interrogations, did not engage in unfair labor practices affecting commerce within the 5
meaning of Section 8(b)(1)(A) and Section 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended1
10
ORDER
The complaint is dismissed.
15
Dated, Washington, D.C., May 18, 2011
____________________20
Arthur J. Amchan
Administrative Law Judge

1 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.