NAB Construction Corporation

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 670 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NAB Construction Corporation and Michael Haines
and Washington Benitez. Cases 29-CA-7196
and 29-CA-7252
September 30, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On September 30, 1980, Administrative Law
Judge Donald R. Holley issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief, and counsel
for the General Counsel filed cross-exceptions and
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
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order,2 as
modified. 3
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, as modi-
fied below, and hereby orders that the Respondent,
NAB Construction Corporation, New York, New
York, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order, as so modified:
'Respondent and counsel for the General Counsel have 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 credibility unless the clear preponder-
ance of all of the relevant evidence convinces us that the resolutions are
incorrect. Standard Dry Wall Products, 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.
2 In accordance with his dissent in Olympic Medical Corporation, 250
NLRB 146 (1980), Member Jenkins would award interest on the backpay
due based oin the formula set forth therein.
3 The Administrative Law Judge failed to include in his recommended
Order and notice the necessary remedial provision for Respondent's un-
lawful suspension of an employee because he had filed charges with the
Board. The Administrative Law Judge's recommended Order and notice
have been modified to include such provisions.
Additionally, the Administrative Law Judge recommended that the
Board issue a broad cease-and-desist order requiring Respondent to cease
and desist from violating the Act "il any other manner" However. we
do not find Respondent's conduct in this case egregious enough to war-
rant the issuance of such an order. Consequently, we shall substitute the
Board's narrow language, requiring Respondent to cease and desist from
violating the Act "in any like or related manner," for the provision rec-
ommended by the Administrative Law Judge. See lick moo hNods, Inc.,
242 NLRB 1357 (1979).
258 NLRB No. 90
1. Insert the following as paragraphs (h) and (i),
deleting current paragraph l(h):
"(h) Suspending employees because they have
filed charges with the National Labor Relations
Board.
"(i) In any like or related manner interfering
with, restraining, or coercing its employees in the
exercise of the rights guaranteed them by Section 7
of the Act."
2. Insert the following as paragraph 2(b) and re-
letter the subsequent paragraphs accordingly:
"(b) Expunge and physically remove from its re-
cords and files any reference concerning the sus-
pension of Guillermo Rivera in August 1979."
3. Substitute the attached notice 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
WE WILL NOT interrogate employees regard-
ing their union activities or sentiments.
WE WILL NOT suspend employees or refuse
to recall them from layoff status to punish
them for supporting Local Union No. 3, Inter-
national Brotherhood of Electrical Workers,
AFL-CIO, rather than Local Union No. 638,
Metal Trades Branch, U.A., affiliated with
AFL-CIO.
WE WILL NOT request that employees talk
to other employees and ask them to support
Local 638 rather than Local 3.
WE WILL NOT threaten employees with loss
of employment, loss of earnings, or subcon-
tracting out their work to cause them to select
Local 638 rather than Local 3 as their bargain-
ing representative.
WE WILL NOT promise employees perma-
nent employment if they select Local 638
rather than Local 3 as their bargaining agent.
WE WILL NOT threaten to discharge employ-
ees because they support Local 3 rather than
Local 638.
WE WILI. NOT render unlawful support and
assistance to Local 638, or any other labor or-
ganization, by engaging in the above-described
or any like or related conduct.
WE WILL NOT suspend employees because
they have filed charges with the National
Labor Relations Board.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
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NAB CONSTRUCTION CORPORATION
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL make whole employees Michael
Haines and Guillermo Rivera for any loss of
earnings they suffered as a result of the dis-
crimination practiced against them, with inter-
est.
WE WILL expunge and physically remove
from our records and files any reference con-
cerning the suspension of Guillermo Rivera in
August 1979.
NAB CONSTRUCTION CORPORATION
DECISION
STATEMENT OF THE CASE
DONALD R. HOLLEY, Administrative Law Judge:
Upon a charge filed by Michael Haines in Case 29-CA-
7196 and a charge filed by Washington Benitez in Case
29-CA-7252, the Regional Director for Region 29 of the
National Labor Relations Board (herein called the
Board) issued an order consolidating cases and complaint
and notice of hearing on June 29, 1979, alleging, inter
alia, that NAB Construction Corporation (herein called
Respondent) had engaged in conduct which violated
Section 8(a)(1), (2), and (3) of the National Labor Rela-
tions Act, as amended (herein called the Act). ' Respond-
ent filed a timely answer denying that it had engaged in
the unfair labor practices alleged.
This matter was heard before me at Brooklyn, New
York, on January 14, 15, and 16, 1980. All parties ap-
peared and were afforded full opportunity to participate,
to introduce and to meet material evidence, and to
engage in oral argument. The General Counsel and
counsel for Respondent filed post-hearing briefs which
have been carefully considered. On the entire record in
the case, the briefs and arguments, and from my observa-
tion of the witnesses, I make the following:
FINDINGS OF FACT
I. JURISDICTION
It is uncontested, and I find, that Respondent is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II. STATUS OF LABOR ORGANIZATION
It is contested, and I find, that Local Union No. 3, In-
ternational Brotherhood of Electrical Workers, AFL-
CIO, and Local Union 638, Metal Trades Branch, U.A.,
affiliated with AFL-CIO (herein called Local 3 and
Local 638, respectively), are, and have been at all times
material herein, labor organizations within the meaning
of the Act.
The General Counsel was permitted to amend the complaint at the
hearing to allege that "on or about the first week of August 1979, Re-
spondent laid off its employee Guillermo Rivera for one day . .. because
said employee filed charges and gave testimony under the Act" and he
added a conclusionary paragraph to the complaint to allege that the de-
scribed action violated Sec. 8(a)(4) of the Act.
Ill. THE Al..lEGI-D UNFAIR LABOR PRACTICES 2
A. Background
NAB Construction Corporation is a general contractor
which performs work in New York, New Jersey, Con-
necticut, and Washington. It is licensed in Florida, but
has performed no work in that State to date. It maintains
contractual relations with approximately 42 unions, in-
cluding Local 638.3
In 1976, NAB Construction Corporation and Safety
Electric formed a joint venture firm called NAB Safety,
and the latter submitted a bid for the retio-fitting of air-
conditioning systems in some 376 subway cars owned
and operated by the New York City Transit Authority
(herein called Transit Authority). NAB Safety was
awarded the contract and was allotted three tracks at the
Transit Authority's 239th Street barn for the perform-
ance of the work. Safety Electric manufactures necessary
materials, Respondent prepares the cars and installs the
equipment,4 and a subcontractor, Janis Electric, does the
electrical work necessary to installation of air-condition-
ing units in the cars. 5
Edward Lafferty, Respondent's general superintendent
and program manager on the Transit Authority job, indi-
cated during his testimony that the Transit Authority re-
leases 30 subway cars from service at a time and NAB
Safety is required to complete its air-conditioning work
on 24 cars per month. Respondent attempts to finish 30-
34 cars per month.
Mechanically, when cars are placed at Respondent's
disposal at the barn, necessary areas are stripped, struc-
tural members are welded under the cars, and the equip-
ment necessary to air-condition the cars is installed.
Completed cars are submitted to the Transit Authority in
groups of 10 for inspection, and the Transit Authority
requires that any defects discovered be corrected before
the cars are released. The Transit Authority releases all
10 cars at the same time, and the work performed by
NAB Safety is thereafter guaranteed by them for 4 years.
Lafferty indicated that Respondent elected to utilize
nonunion labor to accomplish its portion of the contract
under discussion because the work involved, other than
electrical work, does not belong to any of the building
construction trades in the New York City area. Thus,
Lafferty, together with five other individuals, performed
all necessary work on the first two prototype cars and
developed the system used to air-condition the cars.
Thereafter, over an 8-month period, Respondent hired
and trained a crew, which ultimately numbered 24 em-
ployees, to enable it to perform its work. The employees
are classified as laborers, mechanics, and welders. The la-
borers strip cars, reroute brake lines, install insulation,
and perform other tasks that require minimal training and
ability. The mechanics perform many of the tasks per-
formed by laborers and, in addition, accomplish some of
2 All dates are in 1979 unless otherwise indicated
'Respondent is not a party to a contract w ith Local 3
' The joint venture subcontricted such work to Respondent Cnse-
quently. Respondent rather than NAB Safety. the joinl cnture firm. em-
ploys the employees involved in this case.
' Janis Electric is signatory to a contract with ocal 3
671
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the installation requiring a degree of skill, such as the
brazing of connections of pipe or tubing utilizing silver
solder. The welders install the structural members
needed to support the air-conditioning equipment.
In mid-December 1978, as Respondent neared comple-
tion of its 1976 contract with the Transit Authority and
was preparing to undertake performance of a second
contract calling for the air-conditioning of 550 additional
cars, its employees decided to seek union representation.
A mechanic, Victor Rodriguez, assisted by laborer Mi-
chael Haines, first contacted Local 3. Shortly thereafter,
Rodriguez and employees Guillermo Rivera and Edgar
Donado went to the Local 3 hall where they obtained
authorization cards. Although the record fails to reveal
fully how organizing was accomplished for Local 3, em-
ployee witness Washington Benitez testified that he at-
tended a lunchtime meeting in the locker room at the
Transit Authority barn at which Local 3 was discussed,
and employee Timothy Haggerty testified that several
union meetings were held at Respondent's premises and a
Mr. Richie from Local 3 spoke at one meeting, while a
Mr. Fitzgerald from Local 638 spoke at another. In any
event, Local 3 had obtained sufficient employee signa-
tures by the end of December to permit it to file a peti-
tion for an election with the Board on January 2, 1979.6
After Local 3 filed its petition for an election, employ-
ee Rodriguez contacted Lafferty and asked if he could
meet with employees at the barn to discuss possible affili-
ation with Local 638 rather than Local 3. Lafferty
admits he granted the employees' request, but indicated
he asked Rodriguez to keep interference with the em-
ployees' work at a minimum. By employing tactics
which would constitute unfair labor practices if attributa-
ble to Respondent, Rodriguez succeeded in causing
about half of Respondent's employees to switch their al-
legiance from Local 3 to Local 638.
In due course, an election was held at the Transit Au-
thority barn on February 8, 1979. Interestingly, the name
of a third union, Sheet Metal Workers Local No. 28, ap-
peared on the ballot, together with the names of Local 3
and Local 638. The record does not reveal the extent of
Local 28's involvement in this case. Twenty employees
voted in the election. Local 3 received 10 votes, Local
638 received 8, and 2 ballots, those of Ed White and Ed
Lovatt, both longtime Respondent employees, were chal-
lenged on the ground that they were supervisors.
Respondent introduced in evidence the Hearing Offi-
cer's report on challenges and recommendations pre-
pared after a hearing was held on the above-mentioned
challenges. In the report, the Hearing Officer fully dis-
cussed the evidence which revealed the job functions
performed by White and Lovatt and concluded that they
were employees rather than supervisors. By Decision
and Direction dated August 17, 1979, placed in the
record as Respondent's Exhibit 2, the Board adopted the
Hearing Officer's findings and ordered that the ballots of
White and Lovatt be opened and counted and that a
runoff election be held if the results of the election were
not conclusive. When the ballots were opened and
counted, the revised tally of ballots revealed Local 3 and
6 The petition was docketed as Case 29-RC-4440.
Local 638 each had 10 votes. Rather than participate in a
runoff election, Local 3 chose to withdraw its petition.
B. The Alleged 8(a)(1) and (2) Violations
The complaint alleges in paragraphs 8-14 that Re-
spondent violated the above-described sections of the
Act on numerous occasions during the period extending
from early January through early May 1979 through the
conduct of alleged Respondent agents and/or supervi-
sors, Victor Rodriguez, Carlos Ortiz, Edward Lafferty,
and Ernest Mannering. The conduct attributed to the in-
dividuals in question is described below:
I. Victor Rodriguez: The record reveals Rodriguez is a
mechanic who had been employed by Respondent for
some 27 months at the time of the hearing. While this
employee admittedly has no supervisory authority, the
General Counsel contends that he acted as Respondent's
agent when attempting to cause employees to affiliate
with Local 638 because he was, by Lafferty's admission,
permitted to meet with employees on company property
during their working time to accomplish solicitation for
Local 638.
As previously indicated, Rodriguez was the employee
who suggested to other employees in December 1978
that they needed union representation. Through his ef-
forts, principally, all nine of Respondent's Spanish-speak-
ing employees, and several of its English-speaking em-
ployees, affiliated with Local 3 by signing authorization
cards, thus enabling that electricians union to petition for
an election in early January 1979.
Around the first of the year, Rodriguez spoke with
Respondent General Superintendent Lafferty, and re-
quested that Lafferty permit him to meet with the barn
employees during working hours for the purpose of dis-
cussing the advantages of selecting Local 638 as their
bargaining agent. Lafferty approved the request, indicat-
ing that Rodriguez should interfere with the work of em-
ployees as little as possible.
After discussing the matter with Lafferty, Rodriguez
met twice with the night-shift employees in mid-January
and he met with day-shift employees on several occa-
sions. In preparation for the first night-shift meeting, he
approached employee Guillermo (Willie) Rivera, a
fellow mechanic, at the employee's work station, and
asked him if he would attend a meeting that night and
interpret the benefit provisions of a Local 638 contract
from English into Spanish. Rivera said "No." There-
upon, Rodriguez informed Rivera that "they" would fire
him or transfer him to undesirable work and cause him
to quit if he did not go along with Local 638. Rodriguez
further indicated that Rivera would be taken off the
blacklist if he agreed to collaborate with him. Rivera
agreed to attend the meeting.
Rivera, whose testimony is uncontradicted, indicated
that the meeting under discussion was held in Respond-
ent's locker room at the barn. It started at 8:30 p.m. and
ended at approximately 9:45 p.m.7 At the outset of the
'Night-shift employees take their meal break from 8:30 to 9 p.m.
Rivera testified that Ed Lovatt, allegedly a leadman then working the
shift, regularly admonished employees to go back to work if they at-
tempted to extend their break beyond 9 p.m. Lovatt did not attend the
meeting.
672
NAB CONSTRUCTION CORPORATION
meeting, Rodriguez indicated to the employees that the
meeting was being held with Lafferty's approval. He
then explained to the nine Spanish-speaking employees
and the one day-shift English-speaking employee who at-
tended the benefits the employees could expect to re-
ceive if they selected Local 638. He voiced his opinion
that the employees would be better off with Local 638
and urged them to sign authorization cards for Local
638. 8 During the meeting, employee Luis Pico and Ro-
driguez had a disagreement when Pico asked why he
was offering such benefits then but not before. Pico testi-
fied that Rodriguez replied he had better shut up and not
talk because he was a foreigner and the two then argued
over the amount of money that could be earned working
for Respondent as opposed to that which could be
earned if one performed body and fender work. When
Pico continued to disagree with Rodriguez, he claims
Rodriguez took out a knife and informed him he talked
too much about Local 3 and he was going to cut his
face. After Rivera and other employees prevented
bloodshed, Rodriguez stated "they" were going to dis-
charge Miquel (Michael Haines), John (Wolmart), and
(Guillermo) Rivera because they wanted Local 3. He
stated at some point that the Company was going to de-
posit over a hundred thousand dollars in the bank so
Local 3 would not get in.9
According to Pico, Rodriguez appeared the next night
at the trailer used as an office by Superintendent Man-
nering and from 8 until II p.m. he called employees to
the office individually and caused them to sign authoriza-
tion cards for Local 638. Pico signed a card after Rodri-
guez apologized for his conduct the night before.
After he had caused the night-shift employees to sign
Local 638 cards, Rodriguez held a meeting with day-
shift employees in Mannering's office trailer. During the
meeting, he and another employee, Warren Bornholz,
the son-in-law of alleged leadman Ed White, read por-
tions of the Local 638 contract to the employees and
they all signed Local 638 cards thereafter. 0
Employee Edgar Donado testified, without contradic-
tion, that Rodriguez stated to him on February 7 (the
day before the election) that there was no way Local 3
would win and all the Hispanics would lose their jobs.
Patently, the acts and conduct of Rodriguez described
above would, as alleged, constitute violation of Section
8(a)(l) and (2) of the Act if attributable to Respondent. I
conclude, however, that the General Counsel has offered
insufficient evidence to establish his assertion that Rodri-
guez acted as an agent of Respondent when he sought to
cause employees to switch their allegiance from Local 3
to Local 638. Thus, the only probative evidence offered
to prove an agency relationship was that evidence which
reveals the employee was given permission by Lafferty
s Apparently Rodriguez did not actually have any cards at the time,
because they were signed several days later.
' Employer Edgar Donado testified that Rodriguez informed them Laf-
ferty had indicated he was willing to put 100,000 in court so Local 3
would not get in. Lafferty denied he told Rodriguez he would do any-
thing with $100,000 and Rodriguez denied mentioning $100,000 to em-
ployees. I credit Pico and Donado and find that Rodriguez indicated
during the meeting that Respondent was willing to spend 100.000 to
keep Local 3 out.
'°This meeting was held at 11:30 a.m. during working hours.
to meet with employees on company property and time
to discuss their possible affiliation with Local 638. Re-
spondent's admitted supervisors, Lafferty and Manner-
ing, did not attend the meetings Rodriguez conducted
and the record fails to reveal that they subsequently
learned what Rodriguez said or did at such meetings. On
the other hand, the record reveals that, in addition to
Rodriguez, Respondent permitted representatives of both
Local 3 and Local 638 to meet with employees at the
Transit Authority barn. All considered," I find that Ro-
driguez did not act as Respondent's agent when solicit-
ing employees to join or vote for Local 638. According-
ly, I recommend that those portions of the complaint
which allege that Respondent violated the Act through
this employee's acts and conduct be dismissed.
2. Ernest Mannering: The record reveals that Manner-
ing is the superintendent at the Transit Authority job.
While Lafferty visits the job daily, spending approxi-
mately 2 hours there each day, Mannering is the only
full-time supervisor on the job.
In late January, when employee Michael Haines was
passing a neighborhood deli, he noticed a fellow employ-
ee's car which was damaged and stopped to chat with
the employee. When he entered the deli, he encountered
Mannering, who was conversing with employees Timo-
thy Haggerty and Matthew Carn. After he joined in the
conversation, the subject turned to the union situation
and Mannering stated he thought it was good they were
getting a union, but Local 3 was not good for them. He
explained his feelings, stating that Local 3 just looked
out for themselves and he predicted they would bring
their own foreman to the job and then cause the Compa-
ny to get rid of its present employees by agreeing they
were worth something like $3 per hour, which would
cause them to leave. During the conversation, Manner-
ing stated that Local 3 did not want any Puerto Ricans
in the Union and that "union or no union, Willie's
[Rivera] ass was grass." When Haines indicated he felt
the law would prevent Local 3 from doing what Man-
nering predicted, Mannering informed Haines he was an
idiot if he intended to vote for Local 3. Haines replied
he had to do what was best for him. Haggerty testified
that, after Haines left the deli, Mannering told him the
bosses did not like Mike.
During the morning of the election, February 8,
Haines conversed with Mannering again. On that occa-
sion, Mannering told him NAB could not afford and did
not want Local 3. He further stated that, if it got in,
NAB would sub the entire job out to Janis Electric.
Haines again said he had to do what was right for him.
Employee Haggerty corroborated Haines' version of
the deli conversation when he appeared as a witness.
" I attach no significance to hearsay testimony offered by the General
Counsel to show that Lafferty caused Rodriguez to abandon Local 3 and
solicit for Local 638. Similarly, I attach no significance to the General
Counsel's evidence which reveals that Ed White and Ed Lovatt directed
employees to attend meetings conducted by Rodriguez as the General
Counsel offered no evidence concerning the supervisory status of such
individuals which had not been considered by the Hearing Officer and
the Board in Case 29-RC-4440. In agreement with the Hearing Officer
and the Board, I find that White and Lovatt are not supervisors within
the meaning of Sec. 2 ) of the Act.
673
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thomas Hague, another employee, testified that Manner-
ing made remarks similar to those described above to
him at an undisclosed time. 12
Mannering was not called as a witness to rebut the
comments attributed to him by employees Haines, Hag-
gerty, and Hague. While Respondent stipulated that
Mannering was, and is, a supervisor within the meaning
of the Act, it refrained from admitting that he was an
agent of Respondent during the period in question. As he
was Respondent's only full-time supervisor on the Tran-
sit Authority job and admittedly possessed and exercised
full supervisory powers, I find that Respondent was
clearly responsible for his actions. It is clear, and I find,
that Respondent, through the above-described acts and
conduct of Mannering, violated Section 8(a)(1) of the
Act by: (1) unlawfully interrogating employees concern-
ing their union membership or sentiments; (2) unlawfully
threatening employees with loss of employment and loss
of earnings if they selected Local 3 as their bargaining
agent; and (3) unlawfully threatening to subcontract the
Transit Authority job to others if Local 3 won the elec-
tion. By the same conduct, I find that Respondent ren-
dered unlawful assistance to Local 638 in violation of
Section 8(a)(2) of the Act.
3. Edward Lafferty: The complaint alleges at para-
graphs 8(b), 10(g), and 11 that Respondent, through Laf-
ferty's acts and conduct, violated Section 8(a)(1) and (2)
of the Act by unlawfully interrogating employees, by un-
lawfully informing employees that Respondent did not
want them speaking with other employees about Local 3
and would discharge them if they did so, and by unlaw-
fully informing employees that Respondent had a con-
tract with Local 638 and it was a better union than
Local 3.
The General Counsel sought to prove the allegations
summarized above through the testimony of employee
witness Jesus Wolmart. Wolmart testified that Lafferty
approached him while he was working in a subway car
and told him that he had been told he was talking union
during working hours and he "don't want nobody talk-
ing union during working hours, you're here to work
during working hours." Wolmart claims he told Lafferty
he had done his talking about the Union during lunch-
time and that Lafferty told him "he don't want no talk-
ing union during working hours, period."
When he appeared as a witness, Lafferty admitted that
he cautioned Wolmart to limit his discussion of unions
on the job. Lafferty's best recollection was that he went
up to Wolmart while the employee was working in a car
and told him, "Look, John, I understand everybody is
talking about the various unions. Do me a favor from
this point on. If there are any group discussions, keep it
within your own time." Lafferty did not recall any men-
tion of breaks during the incident and he indicated he did
not use the term "working hours," but may have told
Wolmart to not discuss unions "on company time." He
recalled that he prefaced the remarks he made to Wol-
12 Hague testified that Mannering told him that Local 638 would be
better for them because Local 3 would put their men on the job and their
classifications might be changed resulting in lower earnings. The employ-
ee also asserted that Mannering said Respondent would give up the con-
tract if Local 3 got in.
mart with an observation that too many people were
stopping work to discuss unions. Lafferty was an impres-
sive witness and I credit him rather than Wolmart.
Patently, Wolmart's testimony does not establish that
Lafferty engaged in the conduct alleged in the com-
plaint. Accordingly, I recommend that the above-de-
scribed allegations be dismissed. Acceptance of Wol-
mart's version of the conversation would warrant a find-
ing that Lafferty announced an unlawful no-solicitation
rule when he cautioned the employee concerning discus-
sion of the unions with other employees. I am convinced,
however, that Lafferty sought to limit only discussions
of the unions which would interfere with the work of
employees. Consequently, I find that Respondent did not
violate Section 8(a)(1) or (2) through comments Lafferty
made to Wolmart on the occasion under consideration.
4. Carlos Ortiz: The record reveals that prior to his
employment by Respondent Ortiz was employed by the
Commonwealth of Puerto Rico in New York City and
his duties related to sports and community relations.
When Lafferty, who had attended school with Ortiz,
learned where he was employed, he asked Ortiz to refer
minority applicants for employment to Respondent.
Eventually Ortiz asked if Lafferty could give him a job
and the latter hired him during February 1979. Lafferty
testified that management communications with Re-
spondent's Spanish-speaking employees was a problem,
and Ortiz was hired to cure the problem. Ortiz testified
he was informed he would be Mannering's assistant, and
his first task when employed was to familiarize himself
with all phases of the Transit Authority job by actually
performing each type of work to enable him to pass on
Mannering and Lafferty's instructions in a meaningful
way. It is undisputed that Mannering informed the em-
ployees on the job that Ortiz was his assistant. Employee
Washington Benitez testified, without contradiction, that
Mannering informed him on one occasion that he would
not override whatever Ortiz said because he was his as-
sistant. Ortiz had completed his training period by the
time the hearing was held in this case and he is now re-
sponsible for Respondent's tool and supply room.
The complaint alleges at paragraphs 9(e), (b), 10(c),
and 14 that Respondent violated Section 8(a)(1) and (2)
of the Act through the conduct of Ortiz which allegedly
included urging and encouraging employees to support
Local 638, threatening to discharge employees if they
supported Local 3, and promising employees permanent
employment with Respondent if they supported Local
638.
Around May, according to the testimony of employee
Luis Pico, Carlos Ortiz told Pico that he (Ortiz) be-
longed to the Company and his job was safe, and other
employees would have better positions with the Compa-
ny if Pico and other employees would vote for Local
638. Ortiz then told Pico to "gather the whole group and
we go together with Mr. Lafferty to the court [the
Board] to tell [the Board] we wanted Local 638."
About a week later, Pico testified that he, along with
Washington Benitez, had another conversation with
Ortiz. Again Ortiz asked Pico and Benitez to vote for
Local 638. They each agreed to do so. During the same
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NAB CONSTRUCTION CORPORATION
conversation, Ortiz asked Pico to discuss the matter with
Johnny (Wolmart) and Jorge Negron.
The next day at work, Pico testified, without contra-
diction, that Superintendent Mannering accosted and ac-
cused him and Benitez of not wanting to work and
threatened to discharge them. Although Pico told Man-
nering that he was working, Mannering insisted that he
was not working and told him that he (Mannering)
would ask Local 3 for new welders and discharge Beni-
tez and him in about 3 or 4 weeks.
Ortiz generally denied that he discussed the Union
with employees and he denied that he told anyone they
would be fired if they voted for Local 3. Ortiz was not
an impressive witness. I credit Benitez and Pico.
In agreement with the General Counsel, I find that
Ortiz was an agent of Respondent when he made the
above-described comments to Benitez and Pico. In addi-
tion to being introduced to employees as Mannering's as-
sistant, the record reveals he reprimanded Spanish-speak-
ing employees pursuant to Mannering's instructions and
Mannering had indicated to employees that he would not
override what Ortiz said because he was his assistant.
Moreover, the comments made by Ortiz were reflective
of the position of his superior, Mannering. In the circum-
stances, I find that Respondent is responsible for Ortiz'
comments regarding the union situation as it placed him
in a position which identifies him with management and
the employees could have reasonably believed that when
making the comments under consideration he was speak-
ing and acting for management. Hanover Concrete Co.,
241 NLRB 936 (1979); Rexart Color & Chemical Co.,
Inc., 246 NLRB 240 (1979). Accordingly, I find, as al-
leged, that Respondent, through the acts and conduct of
Ortiz, violated Section 8(a)(l) of the Act by: Telling em-
ployees he wanted them to vote for Local 638; request-
ing that an employee ask other employees to vote for
Local 638; threatening employees with discharge if they
supported Local 3; and by promising employees perma-
nent employment with Respondent if they supported
Local 638. I further find that Respondent unlawfully as-
sisted Local 638 in violation of Section 8(a)(2) by engag-
ing in the conduct described above.
C. The Alleged 8(a)(3) Violations
The complaint alleges that Respondent laid off and
thereafter refused to reinstate employees Michael Haines,
Guillermo Rivera, and Edgar Donado in violation of
Section 8(aX3). It further alleges that Respondent dis-
charged Washington Benitez on June 7, 1979, and there-
after refused to reinstate him in violation of Section
8(a)(3).
I. The February 9 layoff
Lafferty credibly testified that the last cars which
were to be air-conditioned by Respondent were deliv-
ered to the Transit Authority barn in October 1978, and
performance of the first contract calling for the air-con-
ditioning of some 376 cars was completed in late January
1979. He further indicated that performance of the
second contract was not scheduled to begin until March
1979, and that the only work available during the interim
period was cleanup work and limited subassembly work
which needed to be accomplished before performance of
the second contract was begun. Thus, the record clearly
reflects, and the General Counsel does not claim other-
wise, that lack of work at the Transit Authority site ne-
cessitated that Respondent lay off the bulk of its employ-
ees on February 9.
The record reveals that on February 9, Respondent
laid off approximately 20 of the employees working on
the Transit Authority job, including alleged discrimina-
tees Haines, Rivera, and Donado. Five employees were
retained, and one of the five, Cal Gripper, a welder, was
sent to Respondent's shop which was located away from
the Transit Authority barn. The four employees who
continued to perform cleanup and subassembly work at
the barn were Rodriguez, White, Lovatt, and Hector
Tirado. Of the four, only Tirado had less seniority than
the alleged discriminatees named above. Included in the
layoff were, inter alia, Superintendent Mannering's son
(Ernest, Jr.), Lovatt's son-in-law (Warren Bornholz), and
Tim Haggerty who considered Superintendent Manner-
ing, who drove him to and from work, to be his friend.
When he effectuated the layoff in question, Lafferty in-
formed the employees that they were to be laid off for
2-3 weeks, and he informed employee Haines it had
nothing to do with the Union.
While the General Counsel alleges in the complaint
that Haines, Rivera, and Donado were selected for layoff
for discriminatory reasons, he makes no such argument
in his brief. As I view the record, it reveals that Re-
spondent clearly had no need for the services of the em-
ployees laid off on Feburary 9, and pro Local 3 as well
as pro Local 638 employees were laid off. I am unwilling
to base a finding of discriminatory selection for layoff on
the mere fact that one of the employees retained was
junior in seniority to the alleged discriminatees absent
evidence which would show that Respondent had fol-
lowed a strict policy of layoff in accordance with senior-
ity prior to February 9. There is little other, if any, indi-
cia of discriminatory intent. Accordingly, I find that the
General Counsel has failed to offer sufficient evidence to
prove that Haines, Rivera, and Donado were laid off on
February 9 for discriminatory reasons.
2. Recall of employees from layoff
As indicated, supra, the employees laid off on Febru-
ary 9 were informed at the time of layoff that they
would be off 2-3 weeks. Presumably, the layoff was to
be of that duration because Respondent intended to com-
mence performance of its second contract with the Tran-
sit Authority in March. Lafferty testified, however, that
the necessity for design changes and shortage of materi-
als actually delayed commencement of performance of
the second contract until April and that full-scale per-
formance was not accomplished until May.'4 He further
I3 Lafferty testified that he hwould have Lffectuated a layoff before Feb-
ruary 9 but for the election scheduled for February 8.
" The record reveals that the employees of a supplier of stanchions
which are stainless steel pipes which stand vertically in the cars and act
as a conduit for refrigeration piping, were on strike in March and re-
Continued
675
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
indicated that, while the size of Respondent's crew was
approximately 24 employees during performance of the
first contract, Respondent was required by the second
contract to subcontract work to a minority contractor,
with the result that the preparation of certain brackets
normally prepared at the site was subcontracted to a mi-
nority firm thereby reducing available work for Re-
spondent's employees at the site by approximately 350
man-hours per week.'5
In addition to contending that the above-described fac-
tors affected the recall of employees, Lafferty testified
that the main criteria used to determine the order of
recall of employees were based on the skills needed and
the skill of the employees available. Lafferty indicated
that welders and brazers were recalled first because they
were needed first.
The record reveals that Luis Pico, a welder who had
informed Ortiz he would vote for Local 638, was the
first employee recalled. He returned to work on March
5. Haggerty returned at the same time; welder Benitez
returned from leave of absence on March 12; Wolmart,
Local 3's observer at the election, returned on March 12;
Jorge Negron returned on March 14; Gripper, a welder,
was returned from the shop to the job on March 26; and
Ernest Mannering, Jr., and Hague returned on April 10.
Apparently Pico, Gripper, and Benitez performed all
necessary welding on the job until Benitez was terminat-
ed on June 7. The welder opening created by the Benitez
termination was filled by the recall of Donado on June
12. Finally, Rivera was recalled on July 30 and Haines
was eventually recalled on December 18, 1979. Respond-
ent offered no specific evidence which would indicate
why Rivera was not recalled until July 30. Lafferty at-
tempted to justify Respondent's failure to recall Haines
until December 18 by claiming that Respondent was re-
quired to assign two employees to full-time correction of
defects noted by the Transit Authority in cars which had
supposedly been completed in December.
While the General Counsel contends that Respondent
discriminatorily failed to recall Edgar Donado because
he was a known supporter of Local 3, this employee in-
dicated when testifying that he signed authorization
cards for both Local 3 and Local 638. Significantly, the
record fails to reveal that Lafferty, Mannering, or Ortiz
had any knowledge of his union sentiments. Donado
himself testified that, when he signed a Local 638 card,
all the employees except Wolmart, Pico, and Angel Ro-
driguez had signed cards. In the circumstances, I find
that the General Counsel failed to offer any probative
evidence which would show that Respondent had
knowledge of Donado's union activities or sentiments.
Assuming, arguendo, that knowledge of Donado's pro
Local 3 sentiments could be attributed to Respondent be-
quired materials were not delivered until May; that Respondent bor-
rowed a few stanchion assemblies from the Transit Authority to permit
completion of 20 cars in April; and that the employees of Safety Electric
which supplied most of the equipment were on strike for 2 weeks in
May.
'" Supportive of Lafferty's assertion is his further testimony given with
respect to the amount of overtime worked, which reveals that Respond-
ent had 15 men on the job in May. 14 in June, and 14 in July. Apparently
the work force was reduced by some 10 employees as a result of work
subcontracted out.
cause the size of the work force was relatively small and
the Spanish-speaking segment was smaller still, I would
nevertheless conclude that the General Counsel has not
sustained his burden of establishing that Donado was
treated discriminatorily. Thus, as noted above, Pico (a
known Local 3 supporter), Gripper, and Benitez were
the only welders on Respondent's payroll from the time
of the layoff until Benitez was fired and Donado was re-
called to replace him. Such facts are supportive of Laf-
ferty's claim that Donado was not recalled before June
12 because Respondent did not need his services prior to
that time.
In sum, for the reasons stated, I find that Respondent
did not lay Donado off on February 9, or refuse to recall
him prior to June 12, 1979, for reasons proscribed by the
Act.
With regard to the claim that Guillermo (Willie)
Rivera was denied recall until July 30, 1979, for discrimi-
natory reasons, the record reveals that Rivera, like
Donado, visited Local 3's office and signed a Local 3 au-
thorization card while there. Subsequently, he signed a
Local 638 authorization card at the meeting held by Ro-
driguez in Mannering's office. The record fails to reveal
that any Respondent official was aware he favored Local
3 prior to the February 9 layoff. In fact, as revealed,
supra, Mannering informed employee Haines, Haggerty,
and Carn during the deli conversation described above
"that union or no union Willie's ass was grass." Rivera
testified, however, that in March he telephoned the job
to ascertain when he would be recalled. According to
Rivera's uncontested testimony, Mannering indicated he
did not know when he would be recalled because Laf-
ferty made such decisions and he (Mannering) then com-
mented, "Well, you guys are starting all this trouble." As
no charges had been filed when Rivera made the call he
described, and the only "trouble" experienced by Re-
spondent was the failure of the employees to heed Man-
nering's admonition that they vote for Local 638 rather
than Local 3 in the election, I infer that Mannering was
inferentially calling Rivera a Local 3 troublemaker when
he made the remark described.
As indicated, supra, Respondent had a 15-man crew in
May, 14 men in June, and 14 in July. Apparently a crew
member was dropped in June and the unidentified em-
ployee was necessarily a mechanic or a laborer as the
number of welders remained constant at three. Rivera, a
mechanic, who testified he performed all types of work
on the job except welding, was clearly qualified to per-
form the work of the unidentified crew member who
left, but he was not offered the job. The combination of
facts discussed leads me to conclude that Respondent
either suspected or was aware that Rivera supported
Local 3 in the election and it refrained from rehiring him
because it resented his choice of unions.
In sum, as Mannering had predicted dire consequences
if the employees selected Local 3 rather than Local 638
as their bargaining representative, he inferentially ac-
cused Rivera of "starting all this trouble" when the em-
ployee inquired concerning recall, and Respondent there-
after failed to recall Rivera when an opening he was
qualified to fill developed, I find that the reason assigned
676
NAB CONSTRUCTION CORPORATION
by Respondent for its failure to recall Rivera until July
30, 1979, was a pretext. I find that he was refused recall
in violation of Section 8(a)(3) of the complaint as al-
leged.
Although Respondent claims that it failed to recall Mi-
chael Haines before December 18, 1979, because it did
not need him before then, the record facts convince me
that the reason assigned for the failure to recall Haines at
an earlier time is a pretext.
As revealed, supra, Mannering learned during the deli
conversation that Haines was inclined at that time to
vote for Local 3 in the coming election. Mannering at-
tempted to persuade him to vote for Local 638 by telling
him he was an idiot if he voted for Local 3, but Haines
held his ground. After Haines left the deli, Mannering
told Haggerty he did not like the employee. As previous-
ly found, Mannering attempted to interfere with this em-
ployee's right to decide which union he should support
by telling him on the morning of the election that NAB
could not afford and did not want Local 3 and it would
subcontract the job out if Local 3 came in. Again,
Haines replied he had to do what was right for him. Sub-
sequently, after the February 9 layoff, Haggerty's uncon-
tested testimony reveals that Mannering asked on one oc-
casion whether Haines had found other employment and
then commented that Haines should find another job be-
cause the bosses did not like him.
While it may well be true that Respondent's bosses did
not like Haines, none appeared at the hearing of this case
to give testimony. As I view the record, Mannering is
the only supervisor who indicated displeasure with
Haines, and he did so after unsuccessfully attempting to
cause the employee to support Local 638 rather than
Local 3.
In sum, the General Counsel has shown that Manner-
ing was aware of Haines' pro Local 3 sentiments; he be-
rated the employee when he expressed his sentiments and
thereafter sought just before the election to cause him to
switch his allegiance to Local 638 by uttering dire
threats; and he indicated after the election and layoff that
Haines might as well seek other employment because he
would not be rehired by Respondent. Finally, Respond-
ent gave what I have concluded is a false reason for fail-
ing to recall the employee within 2-3 weeks as promised
at the time of layoff. I conclude and find that the reason
assigned for Respondent's failure to recall Haines before
December 18, 1979, is pretext. I further find that Michael
Haines was denied timely recall because he was a known
supporter of Local 3 in violation of Section 8(a)(3) of the
Act.
3. The Benitez termination
Washington Benitez, a welder, did not vote in the Feb-
ruary 8 election because he was then on leave of ab-
sence. He returned to work on April 2, 1979. Shortly
after he returned to work, while he, Ortiz, and Pico
were in Pico's automobile, Ortiz informed them there
was going to be a second election and he wanted them
to vote for Local 638. Benitez and Pico said, "OK." The
next day, Mannering reprimanded both Pico and Benitez
for slowing down on the job. Pico then informed Ortiz
that he and Benitez would not give him their votes.
On June 5, on two occasions, Ortiz traveled through a
tight area where Benitez was welding, requiring Benitez
to move over to let him pass on both occasions. On the
last occasion, Ortiz claimed he got something in his eye
and he blamed Benitez. The employee grabbed a hand-
truck to defend himself.
On June 6, Benitez was discharged. Lafferty, who
made the decision to terminate the employee, testified
that Benitez is the only employee he has fired at the
Transit Authority job. He explained the reason for his
decision by indicating that when welding work is slack
most of the welders would perform other needed work
but Benitez refused to do anything but welding and in
mid-May Mannering informed him that the employee
had decreased his production from welding structural
members on 2-1/2 cars a day down to I or 1-1/2 cars a
day. According to Lafferty, Mannering reported he had
reprimanded Benitez but the employee had not im-
proved. Lafferty claims he told Mannering to speak to
Benitez again and subsequently Mannering reported that
when he spoke to Benitez the employee told him "More
money, more work. You don't like, lay me off." At that
point, Lafferty claims he instructed Mannering to let the
employee go.
Benitez denied that he slowed down on the job, and
he denied that Mannering or Laffery ever accused him
of slowing down. Employee Calvin Gripper, also a
welder, supported Respondent's position by testifying
that he welds the structural members on three cars a day
and Benitez welded them on two cars a day until May
when he dropped to one car a day. Gripper claimed he
discussed the matter with Benitez and Benitez told him,
"Maybe I need more money." Benitez did not deny the
remark attributed to him by Gripper who I find was a
credible witness.
In sum, I credit Lafferty and Gripper and find that
Benitez slowed his production during the month of May
and refused to work at his former pace despite requests
that he do so. I find he was discharged for cause and I
recommend that the complaint allegations alleging that
he was discharged in violation of Section 8(a)(3) be dis-
missed.
4. The -day suspension of Gillermo Rivera
On May 15, 1979, Michael Haines filed the charge in
Case 29-CA-7196, alleging, inter alia, that Rivera was
laid off on February 9, 1979, and thereafter was refused
recall in violation of Section 8(a)(3) of the Act.
Rivera testified, without contradiction, that Mannering
called him to the office trailer on the jobsite during the
first week in August and asked him why Timmy (Hag-
gerty) and Cal (Gripper) did not want to work with him.
After some discussion, Mannering mentioned the unfair
labor practice case and predicted the jury would believe
him and Rivera would not win. Rivera claims he said
there would be no jury, there would just be a hearing.
At that point, Mannering asked Rivera why he was
doing this, and the employee replied he was doing what
his lawyer advised. Mannering then stated that he should
withdraw the case because it would just mean more ag-
gravation and he would not win. Rivera asserts he re-
677
0
DECISIONS OF NATIONAL LABOR RELATIONS BOARD678
plied he was going to do what his lawyer told him to do
and Mannering told him to go home and "see what your
lawyer tells you to do." The employee left, but returned
and asked if he was fired. Mannering said no, "Just go
home today and come back tomorrow." Rivera was not
paid for the day.
While Rivera clearly failed to describe all of the con-
versation which occurred on the day in question, that
portion of the conversation he did describe establishes a
prima facie case of violation of Section 8(a)(4) of the
Act. As the testimony was not rebutted, I find that
Rivera was suspended for 1 day in August 1979 in viola-
tion of Section 8(a)(4) of the Act as alleged.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section 11I
above, occurring in connection with the operations de-
scribed 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 dis-
putes burdening and obstructing commerce and the free
flow of commerce.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Unions are labor organizations within the
meaning of Section 2(5) of the Act.
3. By engaging in the unlawful acts described in sec-
tion III above, Respondent has engaged in, and is engag-
ing in, unfair labor practices within the meaning of Sec-
tion 8(a)(1), (2), (3), and (4).
4. Respondent has not violated the Act except to the
extent specifically indicated in section III above.
5. The above-described unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Having found that Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(l), (2), (3), and (4) of the Act, I shall recom-
mend that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of
the Act.
Respondent will be ordered to make Michael Haines
and Guillermo Rivera whole for any loss of earnings
they suffered as a result of the discrimination practiced
against them with backpay to be computed on a quarter-
ly basis, making deductions for interim earnings, and
with interest to be computed and paid in accordance
with the Board's Decisions in F. W. Woolworth Company,
90 NLRB 289 (1950), and Florida Steel Corporation, 231
NLRB 651 (1977).16
As the unfair labor practices committed by Respond-
ent, particularly the acts of discrimination, strike at the
heart of the Act, a broad cease-and-desist order shall be
recommended, precluding Respondent from "in any
Is See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962)
other manner" interfering with, coercing, or restraining
employees in the exercise of the rights guaranteed them
by Section 7 of the Act.
Upon the foregoing findings of fact, conclusions of
law, and upon the entire record in this proceeding, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER 17
The Respondent, NAB Construction Corporation,
New York, New York, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees regarding their union ac-
tivities or sentiments.
(b) Requesting that employees talk to other employees
and ask them to support Local 638 rather than Local 3.
(c) Threatening employees with loss of employment,
loss of earnings, or subcontracting out their work to
cause them to select Local 638 rather than Local 3 as
their bargaining representative.
(d) Promising employees permanent employment if
they select Local 638 rather than Local 3 as their bar-
gaining agent.
(e) Threatening to discharge employees because they
support Local 3 rather than Local 638.
(f) Suspending employees or refusing from recalling
them from layoff status to punish them for supporting
Local Union No. 3, International Brotherhood of Electri-
cal Workers, AFL-CIO, rather than Local Union No.
638, Metal Trades Branch, U.A., affiliated with AFL-
CIO.
(g) Rendering unlawful support and assistance to
Local 638, or any other labor organization, by engaging
in the above-described or any like or related conduct.
(h) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action which is
found necessary to effectuate the purposes of the Act:
(a) Make whole employees Michael Haines and Guil-
lermo Rivera for loss of earnings they suffered as a result
of the discrimination practiced against them in the
manner set forth in "The Remedy."
(b) Post at its New York City Transit Authority facili-
ty copies of the attached notice marked "Appendix."t s
Copies of said notices, on forms provided by the Region-
al Director for Region 29, after being duly signed by Re-
spondent's authorized representative, shall be posted by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
" 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 for all purposes.
"' In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the ords 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."
NAB CONSTRUCTION CORPORATION
are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
679