NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
Matros
Automated Electrical Construction Corp., BTZ Electrical Corp., Single Employers
and Local 363, United Electrical
Workers of
December 8, 2008
DECISION AND ORDER
By Chairman Schaumber and Member Liebman
On September 1, 2006, Administrative Law Judge Raymond P. Green issued the attached decision. The General Counsel filed exceptions and a supporting brief, and Matros Automated Electrical Construction Corp. (Matros), BTZ Electrical Corp. (BTZ), and Local 363, United Electrical Workers of America, IUJHAT (UEW Local 363) filed answering briefs to those exceptions. Matros and BTZ filed exceptions and a supporting brief, and the General Counsel and Local 3, International Brotherhood of Electrical Workers (IBEW Local 3) filed answering briefs to those exceptions. UEW Local 363 filed exceptions and a supporting brief, and the General Counsel and IBEW Local 3 filed answering briefs to those exceptions.
The unfair labor practice issues in this case arose from separate campaigns by IBEW Local 3 and UEW Local 363 to organize the employees of Matros and BTZ, and the conduct of Matros and BTZ in response to those organizing campaigns. The judge found that Respondents Matros and BTZ committed numerous violations of Section 8(a)(1), (2), and (3) of the Act, and that UEW Local 363 violated Section 8(b)(1)(A) and (2), but he also dismissed certain allegations. We have considered the judge’s decision and the record in light of the exceptions1 and briefs and have decided to affirm the judge’s rulings, findings,2 and conclusions as modified, and to adopt the recommended Order as modified and set forth in full below.3
Background
Respondents Matros and BTZ, a stipulated single employer,
are
The owner of Matros, Stuart Moskowitz, adopted a multiemployer agreement with the Industrial Electrical Contractors Association (IECA) administered by UFCW Local 174, which ran from July 1, 1996, to June 30, 2001. When UFCW Local 174 was placed under a trusteeship in the spring of 2001, UFCW Local 342 became the administrator of the IECA agreement. But in 2003, when UFCW Local 342 became convinced that Matros’ electricians could be better serviced by an electrical union, it asked IBEW Local 3 if it would be interested in representing those employees. The two locals signed service agreements in December 2003 and January 2004 retaining IBEW Local 3 as the administrator of the IECA agreement, but the IECA refused to recognize IBEW Local 3 as administrator.
Not long after the first service agreements were entered into, IBEW Local 3 began a series of organizing meetings with electrical employees of the IECA employers, including Matros. At one such meeting in the spring of 2004, an employee mentioned to IBEW Local 3 that he had been hired by Matros but put on the payroll of BTZ. He added that Moskowitz was “running two shops.” This and similar reports eventually prompted the filing of an unfair labor practice charge by IBEW Local 3 alleging that Matros and BTZ were discriminatorily enforcing an unlawful members-only contract providing wages and benefits to electricians employed by Matros but not to those employed by BTZ, in violation of Section 8(a)(1) and (3). The judge dismissed this complaint allegation, finding that the bargaining history had, de facto, created two separate units (Matros electricians and BTZ electricians), and that the acquiescence of UFCW Local 174 and its successor Local 342 in these separate units was a defense to the allegation of discriminatory motive under Section 8(a)(3).4
Matros’ supervisors, Joe Estamabil and Peter Azic, attended some of the organizing meetings held by IBEW Local 3. Estamabil testified that he saw several Matros employees at these meetings. Aparicio Garay, Gilberto Gonzalez, Joseph Hodge, and Jaroslaw Wencewicz were among a small number of Matros employees at these meetings. The judge discredited Estamabil’s testimony that he did not tell Moskowitz that he saw the Matros employees at the meetings.
On March 23, 2004,5 Moskowitz sent a letter to employees that stated in part, “You may be aware that Local 3 and Local 342 have tried to force us to deal with Local 3 right now. . . . Local 3 and Local 342 signed an agreement that Local 3 would handle your issues for Local 342 for the remainder of the union contract. Again, we think that this was a way for Local 342 to give Local 3 a head start. . . . We weren’t willing to be pushed around or have Local 3 forced on us or on you. We refused to deal with Local 3 and . . . the Labor Board said that we don’t have to deal with Local 3 unless or until they win an election.”
On April 1, 2004, the IECA dissolved. The same day, BTZ recognized UEW Local 363 based on a card check, and the
parties executed a contract with a term containing a union-security
clause and a dues-deduction clause. On April 12, IBEW Local 3 filed
representation petitions covering each of the former IECA contractors,
including Matros. On May 11, IBEW Local
3 also filed a petition to represent BTZ employees. On May 21, the Board conducted an
election pursuant to a Stipulated Election Agreement at Matros. The tally of ballots was 12 votes for and 21
votes against Petitioner IBEW Local 3, with one challenged ballot. On May 27, IBEW Local 3 filed objections to
the election.
In the weeks before the May 21 election, UEW Local 363 held several meetings at the same address as the offices of Matros/BTZ. Supervisor Estamabil arranged use of the building, Matros’ receptionist called employees in from the field during work hours for the meetings, and employees were paid for time spent in the meetings. The record indicates that at these meetings, UEW Local 363 urged employees to vote against IBEW Local 3.
Moskowitz spoke at the last such meeting, the day before
the election. Both Hodge and Wencewicz
testified that Moskowitz said that “he would never sign a contract with Local
3.” Gonzalez testified that Moskowitz
also said that if he lost the election he was going to “close the shop and he
was going to
Moskowitz and Project Manager John Mata also questioned employees concerning how they were going to vote in the election. During the week before the election, Mata asked Wencewicz while he was in the Respondent’s office whether he was going to vote for or against IBEW Local 3. Wencewicz replied that he was going to vote for IBEW Local 3. Mata reported this to Moskowitz, who summoned Wencewicz to his office and told Wencewicz that employees were going to receive rate increases. Moskowitz then asked Wencewicz if he was going to vote for IBEW Local 3.7 Moskowitz also summoned employee Garay to his office, asked him whether he had attended an IBEW Local 3 meeting, and later asked him at a jobsite whether he was going to support him by voting “no” in the upcoming election. A week or so before the election, Moskowitz came to the jobsite and asked Hodge if he was “on his side.” Hodge responded by saying, “I’m on your side.”
On November 15, 2004, with the election objections of IBEW Local 3 still pending, Matros recognized UEW Local 363 pursuant to a card check. The parties executed a contract that included union-security and dues-deduction clauses.
Analysis
1. The judge found, inter alia, that Respondent Matros/BTZ, by Moskowitz and Mata, violated Section 8(a)(1) by interrogating employees. The applicable test for determining whether the questioning of an employee constitutes an unlawful interrogation was adopted by the Board in Rossmore House, 269 NLRB 1176 (1984), affd. sub nom. Hotel Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). Under Rossmore House, the Board considers whether, under the totality of the circumstances, the questioning at issue would reasonably tend to coerce the employee in the exercise of rights protected by Section 7 of the Act. In analyzing alleged interrogations, the Board
considers such factors as whether the interrogated employee
is an open or active union supporter, the background of the interrogation, the
nature of the information sought, the identity of the questioner, and the place
and method of the interrogation.
Bloomfield Health Care Center, 352 NLRB No. 39, slip op. at 1–2 (2008).
Applying these factors here, we affirm the judge’s findings that Moskowitz unlawfully interrogated employees. In a context that included other unfair labor practices, including a threat of plant closure, Moskowitz, the Respondent’s highest ranking official, and Mata, a project manager, asked employee Wencewicz in the Respondent’s office whether he was going to vote for IBEW Local 3. Moskowitz also summoned Garay to his office and asked Garay if he had attended an IBEW Local 3 meeting, and later asked Garay at a jobsite whether he was going to vote “no” in the election. Moskowitz further questioned employee Hodge at a jobsite whether Hodge was on “his side,” a clear reference to whether Hodge supported Moskowitz’ position against IBEW Local 3, and Hodge untruthfully responded that he was on Moskowitz’ side. There is no evidence that any of this questioning occurred in the course of a friendly, casual conversation. Furthermore, that such questioning would reasonably be taken as coercive is supported by the fact that Hodge failed to answer Moskowitz’ question truthfully.
For these reasons, we affirm the judge’s finding that Respondents Matros/BTZ unlawfully interrogated employees in violation of Section 8(a)(1).
2. The judge found that
BTZ’ recognition of UEW Local 363 on April 1 constituted a violation of Section
8(a)(1) and (2), and that its contract with UEW Local
363 containing union-security and dues-checkoff provisions constituted a
violation of Section 8(a)(3). In so finding, the judge relied on the “fact
that the multi-employer association had been dissolved . . . [and] the
bargaining history that had previously separated the Matros employees from the
BTZ employees was no longer in effect and therefore was no longer relevant or
operative.” On this basis, the judge
found that the only appropriate unit was a combined unit of Matros/BTZ employees.
We find merit
in the Respondents’ argument that the judge incorrectly put aside bargaining
history in finding that the only appropriate unit consists of a combined Matros/BTZ
unit. When the IECA dissolved, the
historical basis of multiemployer bargaining was abandoned by the parties to
that agreement. See
For these
reasons, we reverse the judge’s finding that BTZ violated Section 8(a)(1) and
(2) by recognizing UEW Local 363, and violated Section 8(a)(3) by signing the
contract containing union-security and dues-checkoff provisions.8
3. The complaint alleges that Respondents Matros/BTZ violated Section 8(a)(3) and (1) by discharging Garay and Wencewicz and by failing to award Wencewicz, Gonzalez, and Hodge pay raises and “retroactive payments” because these employees supported IBEW Local 3.9 The judge analyzed these allegations under Wright Line.10
As stated recently in SFO Good-Nite Inn, LLC:11
Under Wright Line,
the General Counsel must first show, by a preponderance of the evidence, that
protected conduct was a motivating factor in the employer’s adverse action. Once the General Counsel makes that showing
by demonstrating protected activity, employer knowledge of that activity, and
animus against protected activity, the burden of persuasion shifts to the
employer to show that it would have taken the same adverse action even in the absence
of the protected activity. United Rentals, 350 NLRB [951] (2007)
(citing Donaldson Bros. Ready Mix, Inc.,
341 NLRB 958, 961 (2004)). If, however,
the evidence establishes that the reasons given for the employer’s action are
pretextual—that is, either false or not in fact relied upon—the employer fails
by definition to show that it would have taken the same action for those
reasons, and thus there is no need to perform the second part of the Wright Line analysis.
With respect to pretext, the Board may infer both knowledge of protected activity and animus towards that activity if the proffered reasons for adverse personnel action are found to be pretextual. Montgomery Ward & Co., 316 NLRB 1248, 1253 (1995), enfd. mem. 97 F.3d 1448 (4th Cir. 1996). See also Metropolitan Transportation Services, 351 NLRB No. 43, slip op. at 2–3 and fn. 6 (2007).12
These principles apply here. Moskowitz was the one who made the decisions to discharge Garay and Wencewicz and to deny raises and retroactive payments to Wencewicz, Gonzalez, and Hodge. The judge found that Moskowitz was not a credible witness and that his assertedly lawful reasons for discharge (or, in Wencewicz’ case, his claim that Wencewicz quit) and denying employees raises and retroactive payments were pretextual. We find no basis for disagreeing with these conclusions.
The judge provided a sufficient rationale for his credibility
determination. He relied on his
observation of Moskowitz’ demeanor in discrediting his testimony, as well as
documentary evidence that directly contradicted his testimony. Specifically, Moskowitz testified that he did
not become aware of the organizing efforts of IBEW Local 3 until April 5, but
in a letter to employees on March 23, Moskowitz made clear that he was aware of
the
In sum, because we agree with the judge’s well-supported credibility determination, we affirm his findings that Moskowitz’ assertion that Wencewicz quit and the reasons advanced by Moskowitz for discharging Garay and Wencewicz and denying raises and retroactive payments to Gonzalez, Hodge, and Wencewicz were pretextual. Accordingly, we find that by these acts, the Respondents violated Section 8(a)(1) and (3).13
ORDER
A. The Respondents, Matros Automated Electrical
Construction Corp. and BTZ Electrical Corp.,
1. Cease and desist from
(a) Recognizing and entering into collective-bargain-ing agreements with UEW Local 363 as the collective-bargaining representative of the employees of Matros Automated Electrical Construction Corp., and cease giving effect to the union-security and dues-checkoff clauses of the Matros/UEW November 15, 2004 contract or any subsequent agreements, unless and until that labor organization is certified by the Board as the collective-bargaining representative of such employees.
(b) Interrogating employees about their sympathies or activities on behalf of IBEW Local 3.
(c) Promising employees promotions and other benefits in order to dissuade them from voting for IBEW Local 3.
(d) Threatening employees that it would shut down the business if IBEW Local 3 won the election.
(e) Telling employees that even if IBEW Local 3 won the election it would never sign a contract with that labor organization.
(f) Discharging Aparicio Garay and Jaroslaw Wencewicz because of their activities and support for IBEW Local 3.
(g) Failing to give raises or retroactive payments to Joseph Hodge, Jaroslaw Wencewicz, and Gilberto Gonzalez because of their activities and support for IBEW Local 3.
(h) Giving illegal assistance to UEW Local 363.
(i) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Withhold recognition from UEW Local 363 as the
representative of the employees of Matros Automated Electrical Construction
Corp. unless and until that
(b) Jointly and severally with UEW Local 363 reimburse all former and present employees employed for all initiation fees, dues, and other moneys that may have been exacted from them, with interest, pursuant to the November 15, 2004 collective-bargaining agreement between Matros Automated Electrical Construction Corp. and UEW Local 363.
(c) Within 14 days from the date of this Order, offer Aparicio Garay and Jaroslaw Wencewicz full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed.
(d) Make Aparicio Garay and Jaroslaw Wencewicz whole, with interest, for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the decision.
(e) Make whole, with interest, Joseph Hodge, Jaroslaw Wencewicz, and Gilberto Gonzalez for the loss of earnings they suffered as a result of the failure of the Respondent to give them raises or retroactive payments given to its other employees.
(f) Within 14 days from the date of this Order, remove from its files any reference to the unlawful actions against Aparicio Garay and Jaroslaw Wencewicz, and within 3 days thereafter notify them in writing that this has been done and that the discharges will not be used against them in any way.
(g) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of initiation fees, dues, backpay and other moneys due under the terms of this Order.
(h) Within 14 days after service by the Region, post at
its facilities in
(i) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.
B. The Respondent, Local 363, United Electrical Workers of America, IUJHAT, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Acting as the collective-bargaining representative of the employees of Matros Automated Electrical Construction Corp. pursuant to the November 15, 2004 agreement unless and until we are certified by the Board as the collective-bargaining representative of such employees.
(b) Entering into collective-bargaining agreements with Matros Automated Electrical Construction Corp. and cease giving effect to the union-security and dues-checkoff clauses of such contracts, unless and until UEW Local 363 is certified by the Board as the collective-bargaining representative of the employees of Matros Automated Electrical Construction Corp.
(c) Threatening employees that it would cause their discharge if they did not sign applications to become members of UEW Local 363.
(d) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Jointly and severally with Matros Automated Electrical Construction Corp., reimburse all former and present employees employed for all initiation fees, dues, and other moneys that may have been exacted from them, with interest, pursuant to the November 15, 2004 collective-bargaining agreement between Matros Automated Electrical Construction Corp. and UEW Local 363.
(b) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of initiation fees, dues, and other moneys due under the terms of this Order.
(c) Within 14 days after service by the Region, post at its offices and meeting halls copies of the attached notice marked “Appendix B.”15 Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by Respondent UEW Local 363’s authorized representative, shall be posted by UEW Local 363 and maintained for 60 consecutive days in conspicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent UEW Local 363 to ensure that the notices are not altered, defaced, or covered by any other material.
(d) Sign and return to the Regional Director copies of the notice for posting by Respondent Matros/BTZ.
(e) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that Respondent UEW Local 363 has taken to comply.
Dated,
Peter C. Schaumber,
Chairman
Wilma B. Liebman, Member
(seal) National
Labor Relations Board
APPENDIX A
Notice To Employees
Posted by Order
of the
National Labor Relations
Board
An Agency of the
The National Labor
Relations Board has found that we violated Federal labor law and has ordered us
to post and obey this notice.
federal law gives you the right to
Form, join, or assist a
union
Choose representatives to
bargain with us on your behalf
Act together with other
employees for your benefit and protection
Choose not to engage in any
of these protected activities.
We will not recognize and enter into collective-bargaining agreements with UEW Local 363 as the collective-bargaining representative of the employees of Matros Automated Electrical Construction Corp., and will cease giving effect to the union-security and dues-checkoff clauses of the Matros/UEW November 15, 2004 contract or any subsequent agreements, unless and until that labor organization is certified by the Board as the collective-bargaining representative of such employees.
We will
not discharge employees, withhold wage increases
or other benefits, or otherwise retaliate against any of our employees because
of their membership in or support for IBEW Local 3.
We will
not interrogate employees about their sympathies
or activities on behalf of IBEW Local 3.
We will
not promise our employees promotions and other
benefits in order to dissuade them from voting for IBEW Local 3.
We will
not threaten our employees that we would shut
down the business if IBEW Local 3 won the election or became the bargaining
representative.
We will
not tell our employees that even if IBEW Local
3 won an election we would never sign a contract with that labor organization.
We will
not give illegal assistance to UEW Local 363.
We will
not in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of rights guaranteed to
them by Section 7 of the Act.
We will withhold recognition from UEW Local 363 as the
representative of our Matros employees unless and until that
We will jointly and severally with UEW Local 363 reimburse all former and present Matros employees for all initiation fees, dues, and other moneys exacted from them, with interest, pursuant to the November 15, 2004 collective-bargaining agreement between Matros Automated Electrical Construction Corp. and UEW Local 363.
We will, within 14 days from the date of the Board’s Order, offer
Aparicio Garay and Jaroslaw Wencewicz, who have been found to have been
illegally discharged, immediate and full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges previously enjoyed.
We will make Aparicio Garay and Jaroslaw Wencewicz whole for any
loss of earnings and other benefits resulting from their discharge, less any
net interim earnings, plus interest.
We will make whole, with interest, Jaroslaw Wencewicz, Gilberto
Gonzalez, and Joseph Hodge for the loss of earnings they suffered as a result
of our failure to give them raises or retroactive payments given to our other
employees.
We will, within 14 days from the date of the Board’s Order, remove
from our files any reference to the unlawful discharges of Aparicio Garay and
Jaroslaw Wencewicz, and we will,
within 3 days thereafter, notify these employees in writing that this has been
done and that these actions will not be used against them in any way.
Matros Automated Electrical Construc-tion Corp., and
BTZ Electrical Corp.
APPENDIX B
Notice To Members
Posted by Order
of the
National Labor Relations
Board
An Agency of the
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.
federal law gives you the right to
Form, join, or assist a union
Choose representatives to bargain on your behalf with your employer
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will
not act as the collective-bargaining representative
of the employees of Matros Automated Electrical Construction Corp. pursuant to
the November 15, 2004 agreement unless and
until we are certified by the Board as the collective-bargaining representative
of such employees.
We will
not maintain or give any force or effect to
the November 15, 2004 collective-bargaining
agreement between us and Matros Automated Electrical Construction Corp., and
cease giving effect to the union-security and dues-checkoff clauses of such
contract, unless and until we are certified by the Board as the
collective-bargaining representative of such employees.
We will not threaten employees of BTZ that we will cause their discharge if they do not sign applications to become members of UEW Local 363.
We will
not in any like or related manner restrain or
coerce employees in the exercise of the rights guaranteed to them by Section 7
of the Act.
We will, jointly and severally with the employer, reimburse all former and present employees for all initiation fees, dues, and other moneys exacted from them, with interest, pursuant to the November 15, 2004 collective-bargaining agreement between Matros Automated Electrical Construction Corp. and UEW Local 363.
Local 363, United Electrical Workers of
Allen M. Rose, Esq. and Nancy Slahetka, Esq., for
the General Counsels.
Richard I. Milman, Esq., for the Employers.
Eric J. LaRuffa, Esq. and Richard M. Greenspan, Esq., for
Local 363.
Richard S. Brook, Esq., for the Charging Parties.
DECISION
Statement of the Case
Raymond P. Green, Administrative Law Judge. This case was tried in
The charge and amended charges in Case 2–CA–36296
were filed by Local 3 against Matros Automated Electrical Construction Corp.
and BTZ Electrical Corp. on May 27, July 9, and August 27, 2004. The charge in Case 2–CA–36297 was filed by
Local 3 against Matros and BTZ on May 27, 2004.
The charge in Case 2–CA–36273 was filed by Local 3 against Matros on January
7, 2005. The charge and amended charge
in Case 2–CA–36552 was filed by Joseph Hodge against Matros on October 1, 2004,
and February 15, 2005. The charge in Case
2–CA–36625 was filed by Aparicio Garay against Matros on November 2, 2004. The charge and amended charge in Case 2–CA–36707
was filed by Gilberto Gonzales against Matros on December 21, 2004, and March
11 and December 16, 2005. The charge in Case
2–CA–36779 was filed by Jaroslaw Wencewicz against Matros on February 9,
2005. The charge in Case 2–CB–20075 was
filed by Hodge against Local 363 on December 21, 2004. The charge in Case 2–CB–20099 was filed by
Local 3 against Local 363 on January 7, 2005.
A consolidated complaint was issued in Cases 2–CA–36296,
2–CA–36297, 2–CA–36723, 2–CB–20075, and 2–CB–20099 on May 23, 2005. Thereafter, a second amended consolidated complaint
was issued on February 6, 2006. This
added Cases 2–CA–36552, 2–CA–36625, 2–CA–36707, and 2–CA–36779. The second consolidated complaint as subsequently
amended made the following allegations:
1. That Matros and BTZ are affiliated business
enterprises having a place of business at
2. That on April 12, 2004, Local 3, IBEW filed
a petition in Case 2–RC–22832 pursuant to which an election was held on May 21,
2004.
3. That on or about May 20, 2004, the
Respondent by Stuart Moskowitz, its president told employees (a) that it would be futile to select
Local 3 as their representative because he would never sign a contract with
Local 3; and (b) threatened employees
that he would close his business if Local 3 won the election.
4. That in May 2004, the Respondent by Stuart
Moskowitz, promised employees promotions and other benefits if Local 3 did not
win the election.
5. That in April and May 2004, Respondent
interrogated employees about their union activities and sympathies.
6. That on or about May 21, 2004 (the day of
the election), the Respondent by Stuart Moskowitz threatened employees with discharge
if they voted for Local 3.[1]
7. That on or about January 19, 2005, the
Respondent threatened to lay off Gilberto Gonzalez.
8. That on or about February 14, 2005, the
Respondent threatened to lay off Joseph Hodge.
9. That in or about April and May 2004,
including on May 20, 2004, the Respondent illegally assisted Local 363 by orchestrating
meetings during working hours, requiring employees to attend these meetings and
having management attend the meeting on May 20, 2004.
10. That on April 1, 2004, BTZ granted
recognition to and entered into a contact with Local 363, notwithstanding that
Union’s lack of majority status, in a unit including all electricians, electrical maintenance mechanics, helpers and
apprentices and trainees, but excluding office clerical employees, professional
employees, guards and supervisors as defined in the Act.
11. That in November or December 2004, Matros
granted recognition to and entered into a contact with Local 363, notwithstanding
that Union’s lack of majority status, in a unit which included all
electricians, electrical maintenance mechanics, helpers and apprentices and
trainees, but excluding office clerical employees, professional employees,
guards and supervisors as defined in the Act.
12. That the contracts between Matros, BTZ,
and Local 363 contained union-security clauses and dues-checkoff clauses which
required membership after 31 days of employment; required the Respondent to
discharge employees who were not members in good standing and required the
Respondent to deduct and remit union dues to Local 363.
13. That in or about November and December
2004, Matros assigned job classifications to its employees and in doing so gave
lower classifications to employees who supported or assisted Local 3.
14. That on or about November 19, 2004, and
December 9, 2005, Matros, for discriminatory reasons, failed to give wage
increases to Gilberto Gonzalez, Joseph Hodge, and Jaroslaw Wencewicz because
they assisted or supported Local 3.
15. That on or about January 20, March 11, and
June 30, 2005, Matros for discriminatory reasons, failed to grant retroactive
payments to Gonzalez, Hodge, and Wencewicz.
16. That Matros discharged the following
employees for discriminatory reasons:
Aparicio Garay October 29, 2004
Jaroslaw Wencewicz January 24, 2005
Gilberto Gonzalez December 14, 2005
17. That since about December 2, 2003, Matros
and Local 342 have had a discriminatory practice of applying the wage rates and
benefits of a labor contract only to those employees that Matros had selected
to be members of Local 342 and not to employees who are not members.[2]
18. That on or about December 8, 2004, Local
363, by Charles E. Shimkus, threatened employees with loss of employment unless
they joined Local 363.
In addition to the usual denials, the Respondents
made a number of assertions that are described below in order to delineate some
of the issues.
They contend that BTZ was a company established
in 1997 as a separate entity and operated for many years, with the explicit or
implicit consent of Local 342, as a nonunion enterprise, whose employees were
not represented by the
They also contend that BTZ, as a historically
separate bargaining unit, was entitled to recognize Local 363 in April 2005
based on that union’s demonstrated majority support. Although not asserted, an argument could also
be made that because BTZ, is a construction industry employer and the unit consists
of construction industry workers, it was entitled to recognize Local 363 under
Section 8(f) of the Act even if that Local 363 did not obtain majority support
from BTZ’ employees.
With respect to the discharge of Gilberto Gonzalez,
the Company asserts that he was discharged because he refused to do his
assigned work and showed disrespect to the owner, Stuart Moskowitz.
With respect to the discharge of Aparicio
Garay, the Company asserts that this was caused by his remarks to a company
supervisor designed to humiliate him in the presence of other employees. Garay is accused of calling Supervisor John
Mata a rat in front of other employees.
With respect to Jaroslaw Wencewicz, the
Company asserts that after he was laid off for a few days, he refused to
respond when asked to return to work. It
therefore asserts that he quit.
The Company responds to the General Counsels’
contention that Gilberto Gonzalez and Jaroslaw Wencewicz were misclassified
because of their union activities by asserting that they were classified in
accordance with their skill levels and were not, in any event, given any
reduction in their pay. Similarly, the
Company denies that it refused to give raises to any employees for
discriminatory reasons.
On the entire record, including my observation
of the demeanor of the witnesses, and after considering the briefs filed, I
make the following
Findings of Fact
i. jurisdiction
The parties agree and I find that the
employers are engaged in commerce as defined in Section 2(6) and (7) of the
Act. I also find that all of the labor unions
involved in this case, either were or are now, labor organizations within the
meaning of Section 2(5) of the Act.
(Local 174 went out of existence when it was merged into Local 342.)
ii. the relevant facts
A. The History of the Companies and the
History
of Bargaining
Both Matros and BTZ are
At the hearing, it was stipulated that Matros
and BTZ constitute a singe employer within the meaning of Section 2(2), (6),
and (7) of the Act. Respondents, did
not, however, stipulate that the employees on each corporate payroll
constituted a single unit. They maintain
that notwithstanding the single-employer status, the employees of each
corporation constitute a separate appropriate collective-bargaining unit.
Joe Estamabil and Peter Azic are project managers
and are the supervisors who are mainly assigned by Moskowitz to Matros. John
Mata and Victor Treccaricho are project managers and the supervisors who are
mainly assigned by Moskowitz to BTZ. The
evidence shows that all four of these individuals, although mostly assigned to
either Matros or BTZ, can and do supervise employees who happen to be on the
payrolls of both Companies.
Stuart Moskowitz is the sole owner of Matros,
which he purchased in, or about 1996 from a man named Alan Matros. Before this, Moskowitz became an electrician
and was a member of Local 3, IBEW. He
went through the Local 3 apprenticeship program and became a master
electrician. After about 12 years
working for Local 3 shops, he opened his own business as Automated
Electric. When he purchased the business
from Alan Matros, Moskowitz changed the name of the company from Matros
Electrical to Matros Automated Electrical.
He nevertheless, kept the same employees, supervisors and customers of
the predecessor.
After acquiring Matros, Moskowitz adopted the
collective-bargaining agreement in existence with Local 174 United Food and Commercial
Workers, AFL–CIO and applied its terms to all of the
employees of the new company. That contract
was a multiemployer agreement that was made with the Industrial Electrical
Contractors Association (IECA), and ran from July 1, 1996, to June 30,
2001. The Respondents point out that
this agreement and the successor agreement had a split shop clause which
allowed the Company to recognize another union for workers who did not do
bargaining unit work. The bargaining
unit covered by these agreements was the electrical workers employed by Matros and the electrical workers employed by
the other employer-members of the Association.
In 1997, Moskowitz formed another company
called BTZ and he ran this as a nonunion company. His mother, living in
Both Matros and BTZ use the same offices at
Stuart Moskowitz hires and fires for both companies. In the majority of cases, he assigns the work
for both companies and he is the person who sets labor and personnel policies
for both companies. For both companies,
Moskowitz testified that he is the person who decides what classifications the
employees should be assigned, who should be given raises and who should be
promoted.
The evidence shows that there has been and continues
to be substantial interchange between the employees of Matros and BTZ. For example, among the group of about 29 employees
who were listed on the Matros payroll during 2004 (see GC Exh. 20), Moskowitz
testified that about 40 percent of them had previously worked on the BTZ
payroll. Also, the evidence shows that
on numerous jobsites, employees from both companies worked on the same
jobsite. General Counsels’ witnesses
including Wencewicz, Joseph Hodge, Pablo Arcy, Gilberto Gonzalez, and others,
credibly testified that in 2003 and 2004, on many of the projects that they
worked (as employees on the Matros payroll), they worked alongside employees
who are on the BTZ payroll. Examples of
such projects were
As described above, the evidence shows that notwithstanding
the close relationship between Matros and BTZ, Moskowitz did not apply the
terms and conditions of the Local 174 contract to the electrical employees that
he put on the BTZ payroll and I surmise that that this arrangement was tacitly
accepted and condoned by Local 174.
There is no question but that for a substantial period of time and up to
the events in 2004, Moskowitz, as the operator of Matros and BTZ had, de facto,
set up two separate groups of employees who were treated as separate entities,
one of which was given the wages and benefits of the collective-bargaining
agreements (Matros) and the other (BTZ) who were not. I note that this arrangement was not kept a
secret as the evidence shows that for many years, employees of both companies,
and presumably the shop stewards for Local 174, were well aware that employees
who were first put on the BTZ payroll were thereafter transferred to the Matros
payroll and that employees of both companies worked with each other on various
jobsites. The evidence also shows that
they were aware that those on the Matros payroll were given wages and benefits
in accordance with Local 174’s multiemployer contract and those on the BTZ payroll
were not.
B. The Merger of Local 174 into Local 342 and
the
Emergence of Local 3
At some point, Local 174 was put into
trusteeship by its International Union and in 2002 it was merged into Local
342. Matros continued to operate under
the terms of the 2001–2004 contract that had been executed between Local
174 and the multiemployer association.
Raymond West, a Local 3 representative,
testified that in 2001, he started to become involved in discussions with employees
of the various employers in the Association, many of whom wanted to join Local
3.
West testified that he was advised that Local
174 had been put into trusteeship and had been taken over by Local 342. He states that he had discussions with
representatives of Local 342 who felt that they did not have the experience or
expertise to represent electricians. And
so there were talks about Local 3 being designated as the representative for
the employees to administer the existing contract. This was done with an eye to having Local 3
take over the full representation of the employees when the 2001–2004
contract expired.
In December 2002, the newly designated Local
342 entered into a service agreement with Local 3 IBEW whereby the collective-bargaining
agreement would be serviced by Local 3.
This agreement stated:
Effective January 1, 2003, IBEW Local 3, shall, acting on behalf of UFCW local 342, service the employees employed by the employers listed on Appendix A . . . . [lists Matros but not BTZ]. Servicing for purposes of this agreement shall include . . . administering the Collective Bargaining Agreement, filing for and conducting arbitrations as appropriate, filing unfair labor practices with the National labor Relations Board as appropriate and initiating other administrative and legal actions, all on behalf of UFCW Local 342. . . .
In April 2003, counsel for the Association
(Fred Klein), wrote to the
In the spring of 2004 and perhaps as early as
February 2004, Local 3 set up a series of about three meetings for employees of
the 12 participating members of the Association. The purpose of these meetings was to convince
the employees to designate Local 3 as their direct bargaining representative. At one of these meetings, an employee mentioned
that he had been hired by Matros and was put on the payroll of BTZ. He told union representative Vincent McElroen
that Moskowitz was running two shops.
The credible evidence is that Joe Estamabil
and Peter Azic, two of the Respondent’s supervisors, attended some of these
meetings.
By the spring of 2004, Moskowitz was cognizant
of the organizing activities of Local 3, is demonstrated by a letter he sent to
his employees on March 23, 2004:
You may be aware that Local 3 and Local 342 have tried to force us to deal with Local 3 right now. We think that Local 342 is trying to give Local 3 a head start for when our union contract ends. We think that you should be the ones to decide who speaks for you. We don’t think that Local 3, Local 342 or even your Company should decide for you. If there is going to be any change in unions in the future, we think that should be your decision.
Local 3 and Local 342 signed an agreement that Local 3 would handle you issues for Local 342 for the remainder of the union contract. Again, we think that this was a way for Local 342 to give Local 3 a head start. If you had a grievance, they wanted us to deal with Local 3. If the shop had an issue, they wanted us to deal with Local 3.
We weren’t willing to be pushed around or have Local 3 forced on us or on you. We refused to deal with Local 3 and they took us to the Labor Board. We fought back- and we won. The Labor Board said that we don’t have to deal with Local 3 unless or until they win an election.
YOU and YOU ALONE
get to decide who your union will be.
Local 3 and Local 342 can’t trade you off between them or make this decision
for you. You have many options—maybe more
than you think you have—and we’ll be writing to you about them in the coming
months. We believe (and we think some of
you are beginning to understand) that the more you know about Local 3, the less
you’ll want to be a part of it.
This letter clearly indicates that Moskowitz
well understood, by no later than March 23, 2004, that Local 3 was intent on
organizing the employees of the various members of the multiemployer association,
including his own, and that Local 342, which was the current representative,
was going to stand aside and allow Local 3 to take over. I cannot credit Moskowitz’ testimony to the
extent that he denied having any knowledge of Local 3’s activity in 2004 until
about April 5, 2004, when he received a petition for an election. Additionally, I note that the Respondent’s “lack
of knowledge” claim is belied by the evidence showing that Supervisors Joe
Estamabil and Peter Azic attended some of the Local 3 meetings. And in the latter regard, I do not think that
Estamabil’s testimony was plausible or credible insofar as he claimed that he
did not tell Moskowitz about attending these meetings. (Azic did not testify.)
Estamabil testified that when he attended the
Local 3 meetings he saw that about five or six Matros employees were present;
four of whom were Gilberto Gonzalez, Joseph Hodge, Aparicio Garay, and Jaroslaw
Wencewicz.
By letter dated April 1, 2004, Fred Klein, on
behalf of the Employer Association sent a letter to Local 342 stating that the
Association was disbanding and that the employers would be negotiating on their
own. This, in effect, destroyed the
existing bargaining unit wherein Matros employees had been part of a
multiemployer unit. It therefore
rendered the bargaining history irrelevant.
C. Recognition of Local 363 by BTZ
On April 1, 2004, a card check was held and
based on that, Local 363 was recognized by BTZ as the representative of BTZ’s
electrical workers. General Counsel’s
Exhibit 22 is a document dated April 1, 2004, signed by arbitrator Gene
Coughlin, certifying that a majority of the 11 BTZ employees had signed
authorization cards for Local 363.[3]
General Counsel’s Exhibit 23 is a collective-bargaining agreement dated April
1, 2004, between BTZ and Local 363, which runs from April 1, 2004, to November
30, 2005. It contains union-security and
dues-checkoff clauses. General Counsel’s
Exhibit 24 is a contract between BTZ and Local 363 running from December 1,
2005, to December 30, 2008. This also
contains union-security and dues-checkoff clauses.
D. The Representation Petitions
On April 2, 2004, Local 363 filed a petition
in Case 2–RC–22822 involving the employees of Matros. This was soon withdrawn and the Regional Director
issued an order approving the withdrawal on April 28, 2004.
On April 5, 2004, Local 3 filed a
representation petition involving the employees of the Association as a
whole. This was later withdrawn because
Local 3 was advised that the Association had been disbanded. The Regional Director issued an order
approving the withdrawal on May 7, 2004.
On April 12, 2004, Local 3 filed individual
petitions for each employer that had previously been a member of the Association. The Petition for Matros was Case 2–RC–22832.
On April 15, 2004, Local 342 notified the
Regional Office that it was disclaiming any interest in representing the employees
of the members of the Association. This
disclaimer was reiterated on April 21, 2004.
In late April 2004, a conference was held at
the Board’s offices between Local 3 and all of the employers of the Association. A Stipulation for Certification upon Consent
Election was executed by representatives of Local 3 and Matros and was approved
by the Regional Director on April 30, 2004.
This provided that an election be held on May 21, 2004. Local 3’s representative testified that when
he said that he had heard that there was another company called BTZ, the
Company’s attorney stated that BTZ was not involved and that she didn’t want to
discuss it. The Stipulated Election
Agreement does not mention BTZ and the employees of BTZ were neither included
nor excluded from the unit, which at that time consisted of about 30 electrical
employees. Also, neither the old union,
Local 342, nor Local 363 were parties to the election proceeding and neither
was on the ballot. On May 21, 2004, the
election was held and Local 3 lost by a vote of 21 to 12. Local 3 filed objections to the election but
these have been held in abeyance by the Regional Director.
On May 11, 2004, Local 3 filed a
representation petition asking that an election be conducted amongst the
electrical employees of BTZ. In response
to this new petition, BTZ and Local 363 asserted that Local 3’s petition should
be dismissed based on a contract bar argument.
On May 19, 2005, Local 342 disclaimed any interest in being a party to
the representation case involving BTZ and that matter has been put on hold
where it remains today.
E. Alleged Preelection Misconduct
As noted above, Moskowitz distributed a letter
to employees dated March 23, 2004, that described his feelings about the
efforts of Local 3 to represent his employees.
Aparicio Garay testified that at this time, he was called into the
office by Moskowitz who told him that he wanted to talk about Local 363; that
he was trying to get that
Garay testified that in April 2004 Moskowitz
asked him if he had attended a meeting with Local 3 and that after he said yes,
Moskowitz asked who else was there.
According to Garay, Moskowitz asked what the Local 3 wage scale was and
that after discussing this subject, Moskowitz said that if he could get the
employees to select Local 363, their pay would be $25 per hour for mechanics
and $31 per hour for foremen.
According to Garay, he had a third conversation
with Moskowitz in early May 2004. Garay
testified that Moskowitz came to his jobsite and after asking him if he was
going to support him by voting “no” in the election, he told Moskowitz; “I got
to listen to the rest of the people, I have to listen to everybody.” He also testified that Moskowitz told him
that he wanted to get the employees to vote no so he could get the people in
Local 363. Garay testified that he
responded, “[Y]ou do whatever you have to do.”
Prior to the election held on May 21, 2004,
Local 363 held several meetings at the building on
Joseph Hodge testified that in the weeks
before the election, he was called to the shop by the receptionist to participate
in meetings that Local 363 held on company time and for which Hodge was
paid. He testified that during the first
two meetings, two of the project managers were present but didn’t say anything. He also testified that during the last
meeting, Moskowitz told the employees that he couldn’t afford a contract with
Local 3 and that even if Local 3 won the election, he would have to negotiate
but would not enter into a contract with them.
Gilberto Gonzalez testified that before the
election he attended meetings that were held in the shop at
Jean Thony, an employee who was still employed
by the Respondent at the time of the hearing, also testified about these
meetings. Regarding the third meeting,
he testified that the Local 363 representatives said that the employees should
vote no so that if Local 3 lost the election, they could come in and represent
the employees. Thony testified that
Moskowitz said he will not go Local 3; that he would rather shut down and that
before he goes Local 3, hell will freeze over.
Hodge testified that during May 2004,
Moskowitz on two occasions, asked him if he supported the Company.
According to Wencewicz, about a week before
the election in May 2004, Mata asked him if he was going to vote for or against
Local 3. Wencewicz states that he
responded that he was going to vote for Local 3 because he was not very happy
with the way that Moskowitz was treating him and the other workers. Wencewicz testified that later in the day,
Moskowitz spoke to him in the office and said that he had heard from Mata that
he (Wencewicz) was not happy with the way he was being treated. According to Wencewicz, he responded that
there were other workers with less experience than him who had better positions. He states that Moskowitz replied that in the
future, they were going to get rate increases and that everything was going to
be very favorable for the workers. At
this point, according Wencewicz, Moskowitz asked him if he was going to vote
for or against Local 3 and he said yes.
Wencewicz also testified that on the day before
the election, Moskowitz attempted to dissuade him from voting for Local 3. He states that Moskowitz told him that even
if we voted for Local 3, he would never sign a contract with them.
Thony testified that in early May 2004,
Moskowitz came to his jobsite and spoke to him privately. According to Thony, Moskowitz said: “Jean, I
will always take care of you. You are a
good worker. I want you to stay with me.”
Thony testified that when he asked Moskowitz why he didn’t recognize him as a
mechanic, Moskowitz responded that he was close and that if Local 3 lost the
election, he would make him a mechanic.
Thony described more of the conversation but this was difficult for me
to understand. As best as I can tell,
Moskowitz was comparing Local 3 shops where there were layoffs to his own
company where he kept people working all the time and that Local 3 was trying
to run him out of business.
Moskowitz denied the statements that were
attributed to him by the General Counsels’ witnesses. He stated that he was instructed by his
counsel as to what he could or could not say and that he wasn’t about to ignore
them because the advice was so expensive.
The Respondents also offered the testimony of
John DeVaynes another employee. DeVaynes
testified that he was the person who was primarily responsible for getting
Local 363 interested in the employees and that it was he who arranged with Joe
Estamabil to get the space in the building for the Local 363 representatives to
talk to the employees. He testified that
he had a meeting with employees at a jobsite before the election and that he
proffered his opinion that if Local 3 won, Moskowitz would close his
business. With respect to the meeting
held on May 20, 2004, DeVaynes testified that Moskowitz said that he wouldn’t
sign a contract that would be detrimental to the men and that would not benefit
them.
The testimony of DeVaynes, aside from being
different from Moskowitz’, really doesn’t make much sense. What does he mean when he testified that
Moskowitz said that he wouldn’t sign a contract that was detrimental to his
employees? Since the standard Local 3
contracts offer higher wages and conditions, I don’t know what he could
possibly mean by such a statement. If
such a contract would be detrimental to anyone, it would more likely be detrimental
to Moskowitz and not to his employees.
With respect to the conduct described above, I
conclude, based on the credited testimony of Garay, Hodge, Wencewicz, and Thony
that the Moskowitz and Mata (a)
interrogated employees about their union sympathies; (b) that Moskowitz at a meeting
held on May 20, 2004, told employees that even if Local 3 won the election, he
would never sign a contract with them and that he would rather shut down the
business; and (c)
that Moskowitz, in May 2004, promised employee Thony that he would promote him
and promised Thony and Wencewicz that he would give other benefits to the employees
if they voted against Local 3. In all of
these respects, I conclude that the Respondent violated Section 8(a)(1) of the
Act.
F. The Postelection Recognition of Local 363 by
Matros
On November 15, 2005, a card check was held
before arbitrator Martin F. Scheinman who certified that he was presented with
a payroll listing 30 Matros employees and that he counted 24 cards signed by
those employees.
Thereafter, Moskowitz executed a collective-bargaining
agreement with Local 363 in relation to the employees on the Matros
payroll. This agreement had a term from
November 1, 2004, to November 30, 2005.
A new agreement was executed in 2005 to run until November 30,
2008. The agreements contained a union-security
clause, requiring union membership after 31 days of employment, and a dues-deduction
clause. Hodge testified, without
contradiction that Local 363 representative Shimkus, told him that unless he
filled out an application for Local 363 membership, he would recommend to the employer
that Hodge be fired. Of course, if the
recognition were lawful, then such a statement by Shimkus would be a perfectly
legal enforcement of what is a facially valid union-security clause.
However, Matros’ recognition of Local 363
occurred while the objections to the election was still pending. Accordingly, the General Counsels contends
that this recognition was unlawful as it took place when there was an existing
question concerning representation. It
could also be argued that this recognition of a rival union while the NLRB was
still processing an election petition, interfered with the Board’s processes to
the detriment of the employees’ right to have their choice of a bargaining
representative determined by a secret-ballot election.[5]
G. Alleged Discriminatory Actions (Apart
from the
“Members Only” Allegation)
The complaint alleges that the Respondent, motivated
by a desire to retaliate against employees because of their activities on
behalf of Local 3 IBEW, discharged Aparicio Gary on October 29, 2004, Jaroslaw
Wencewicz on January 24, 2005, and Gilberto Gonzalez on December 14, 2005. The complaint also alleges that the
Respondents, for the same reason, assigned Gilberto Gonzalez and Jaroslaw
Wencewicz to lower classifications than what they were entitled to. Finally, the complaint alleges that the
Respondent, for discriminatory reasons, failed to give raises and/or
retroactive payments to Gilberto Gonzalez, Joseph Hodge.
The legal principle relating to whether or not
an adverse action taken against an employee was illegally motivated is set
forth in Wright Line, 251 NLRB l083
(1980), enfd. 622 F.2d 899 (1st Cir. 1981), cert denied 495 U.S. 989 (1982). Once the General Counsels has established a
prima facie showing of unlawful motivation, the burden is shifted to the
Respondent to establish that it would have taken the same action for good cause
despite the employee’s union or protected activities.
1. The discharge of Aparicio Garay
Aparicio Garay was initially hired in 1997 and
at various times was either on the BTZ or Matros payrolls. At various times he has been assigned to be a
foreman, thereby indicating to me that Moskowitz felt that Garay’s skill level
was at a reasonably high level. Garay
testified that during 2003 and 2004, he was a foreman at a number of jobs where
the work force was composed of people who were on both corporate payrolls. All
were doing electrical work.
Garay testified that he first became familiar
with Local 3 IBEW in 2002 when Local 174 (the incumbent union), talked to
employees about the possibility of them being represented by Local 3 IBEW. He testified that after that time, he was a
vocal supporter of Local 3 and spoke to employees in support of Local 3 at
various jobsites.
In the spring of 2004, Garay attended a number
of meetings held by Local 3 with employees from the various employers that were
part of the existing multiemployer unit. The purpose of these meetings was to
acquaint the employees with Local 3 and to convince them to allow Local 3 to
independently represent them. Attending
some of these meetings was a relatively small number of Matros employees,
including Garay, Hodge, Wencewicz, and Gonzalez. Also attending some of these Local 3 meetings
were Estamabil and Azic, Matros project managers. As noted above, I do not
believe Estamabil’s testimony that he did not notify Moskowitz about these
meetings and who attended them.
Garay testified that from about March 23, 2004,
to shortly before the election, he had three conversations with Moskowitz and
one with Supervisor John Mata. He
testified that during these conversations, Moskowitz essentially asked him if
he supported the Company and urged him to favor Local 363. It seems to me that Garay’s responses, at
that time, were noncommittal; neither indicating support for Local 3 nor support
for Local 363. Based on demeanor and the
consistency of his testimony, I am going to credit Garay’s testimony.
The election was held on May 21, 2004, and
Local 3, IBEW lost. Joseph Hodge was the
observer for Local 3.
Garay testified that in July 2004, John Mata
asked him if he was a Local 3 member and that he replied that he was not. Garay states that when Mata insisted that
Garay was a member, he turned to Mata and said, “Are you a rat?”
On or about August 11, 2004, Garay left his
worksite early and was docked a half hour’s pay by Moskowitz. Prior to this incident, Garay had never been
disciplined in any way and had never received any warnings. There is no contention by the General
Counsels that the docking of his pay was discriminatorily motivated.
On August 31, 2004, Garay circulated a long letter
in which he expressed why he was supporting Local 3 IBEW.
Previously, Garay had been a supporter of
Local 3, but perhaps in a more restrained way than Gilberto Gonzales and Joseph
Hodge. Garay concedes that Moskowitz
had given him three separate and substantial loans in 2002 and 2003 and this
could show that Moskowitz liked Garay.
But this cuts both ways.
Betrayal is not something that happens between enemies or
adversaries. It only occurs between
people who were friends. When Garay publicly
expressed his opinions on August 31, 2004, this might very well have been
viewed by Moskowitz as a betrayal by someone that he had previously
trusted. Garay was discharged less than 2
months later.
In September 2004, Garay was in
According to Garay, he was talking to Gilberto
Gonzalez at the jobsite, when he saw John Mata approaching. He states that he told Gonzalez; “Watch out
what you’re saying because this guys a rat.”
Garay testified that this incident occurred soon after he returned from
Garay was discharged on October 29, 2004. He testified that he was told of his termination
by Victor Treccaricho, who did not give him any reason.
John Mata testified that sometime in September
or October 2004, he was temporarily assigned to supervise the Kate Spade job
where Garay and Gonzalez were working.
He states that on the second or third time that he visited the site, he
found that Garay and Gonzalez had left about a half hour early without
permission from the office. Mata testified that when told Moskowitz about the
incident, Moskowitz told him that Garay would have to be docked. According to Mata, about 5 days later and
after Garay had been docked, he met him at the office and that Garay said that
he (Mata), was a rat for ratting him out to Moskowitz for leaving early. Mata testified that he told Garay that he was
just doing his job.
With respect to the incident described above,
the company records show that Garay was paid for 39.5 hours (instead of the regular
40), during the week ending August 13, 2004.
This is more consistent with Garay’s timing of these events than Mata’s
and it is more probable that the initial “rat calling” incident took place in
August and not in September or October 2004.
Mata testified that at some later point, he
went to the jobsite and noticed that Mata had installed a galvanized rigid
conduit in an EMT situation. He states
that inasmuch as this type of conduit is extremely expensive, he asked Garay
why he had used it. Mata states that
Garay said that there was water leaking down the wall. According to Mata, he told Garay that this
was the building’s problem and that the job was already costing too much. At this point according to Mata, he told
Garay to forget about it when Garay, in the presence of the customer and other
tradesmen who were at the site said; “Hey everybody, here’s my rat.” According
to Mata, he went back to the office and told Moskowitz about what had happened
and said that Garay had publicly humiliated him. Mata states that he told Moskowitz that he
couldn’t tolerate this and that Moskowitz should find someone else to supervise
that job because he didn’t want to go back.
Mata states that Moskowitz told him that he would talk to Garay.
Moskowitz testified that Mata had reported
that Garay had left the job early and that he told Mata that they would have to
dock Garay for the time. He states that
about a week later, he was in the office when Garay called Mata a rat. Moskowitz testified that Garay said something
like; “You’re a rat. You’re my rat. Hey
how you doing, rat.”
According to Moskowitz, about a week or two
later, Mata told him that he had gone to the jobsite where Garay had announced
to the entire room of workers, “Hello everybody, this is my rat with me; I’d
like to introduce you to my rat.” Moskowitz states that when Mata reported this
to him, he told Mata that he would take care of it. He claims that he then asked Mata to write
the incident up and Respondent’s Exhibit 20 is a document that purports to be
the write up dated October 25, 2004, and which sets the second rat incident as
having occurred on October 25, which is 4 days before Garay’s discharge.
The problem with the Respondent’s version of
these events is the time line. The
Respondent is asserting that the proximate cause of Garay’s discharge was the
second rat-calling incident that took place a few days before his
discharge. But assuming, based on
company records, that Garay was docked in mid-August, then the first “rat
calling” incident would have taken place before September. After that, Garay was in
Both sides offered evidence of other employees
who have either been disciplined or terminated for insubordinate conduct. For example, Reynold Caton was discharged on
May 16, 2003, for an incident where he screamed at a supervisor, made threatening
gestures and refused to listen to orders.
Nevertheless, the evidence shows that this individual had received three
or four prior warnings, one of which was for urinating in a client’s
bathtub. Another example is Ronald Hawson
who was discharged on July 20, 2005, for “gross misconduct in the form of
insubordination and threatening behavior to Supervisor Joseph Estamabil.” This, however, could be considered a more
serious example of insubordination inasmuch as Hawson threatened to throw Estamabil
out of the window.
So what are my conclusions? Did Garay call Mata a rat at the jobsite and
in the presence of other workers? Yes he did.
Could this have been a legitimate reason for discharging him? Yes it could.
Do I believe that Moskowitz decided to discharge Garay because of this
reason? No I do not.
On balance, and given the evidence of
knowledge, animus and Garay’s prior work record, it is my opinion that the
General Counsels have made out a prima facie case that Garay was discharged
because of his activities on behalf of Local 3, IBEW and that this has not been
rebutted by the Respondent as per Wright
Line.
2. The lay off of Jaroslaw Wencewicz
The General Counsels alleges that Wencewicz
was illegally discharged on January 25, 2005.
The Respondent claims, however, that Wencewicz, after being laid off for
a few days, refused to return to work and quit.
The Respondent makes no claim that Wencewicz was fired for cause or that
he was let go for economic reasons.
Wencewicz was hired in 1999 and was initially
put on the BTZ payroll. In 2001 he was
put on the Matros payroll and became a member of the incumbent union.
Wencewicz testified that he heard about Local
3 in 2001 and went to a meeting with representatives of that
Wencewicz was one of the small number of Matros
employees, along with Gonzalez, Garay, and Hodge, who attended a series of
Local 3 meetings held in the spring of 2004.
They were observed at these meetings by Supervisors Estamabil and Azic.
Wencewicz also testified that he was
separately interrogated about his union sympathies by Mata and Moskowitz about
a week before the May 21 election and that he told Moskowitz that he intended
to vote for Local 3. He also testified
that on the day before the election, Moskowitz tried to dissuade him from
voting for Local 3 and said that even if Local 3 won the election, he would
never sign a contract with that
The last day that Wencewicz worked was on
January 21, 2005, and this was almost 7 months after the election. But from the day of the election until
January 21, 2005, the pot was still being stirred and a number of union related
events occurred. Local 3 filed objections
to the election and these were still pending.
On November 17, 2004, after a card count, and despite the continued
pendency of the Local 3 election proceeding, Moskowitz recognized and executed
a collective-bargaining agreement with respect to the electrical employees of Matros.
According to Wencewicz, he was told by Joe Estamabil
in late January 2004, that he should take 2 or 3 days off because business was
slow. Wencewicz states that he objected
to this, stating that he had been sent home for a couple of days in December
and that he thought that under the Local 363 contract, employees should be laid
off by rotation.
Wencewicz testified that when he returned to
the worksite on Wednesday, he called the office and spoke to Estamabil who
asked, “[W]ho told you to come back to work?” According to Wencewicz, he
replied that Estamabil had told him that he was going to be out for only 2 or 3
days whereupon Estamabil said: “No, no, no.
We will call you when you’re supposed to come back to work.”
Wencewicz testified that he went to the office
that Friday to pick up a check and asked Estamabil if he was being fired. He states that Estamabil put up his hands
and said that he didn’t know anything, that it was not his decision and that
the decision belonged to Moskowitz.
According to Wencewicz, he did not receive a
call to return to work until late March 2005. He therefore assumed that he was
fired. Wencewicz testified that when he finally received a call, Estamabil
stated that he should go back to work and that he responded that had gotten
another job from Local 3.
Moskowitz asserts that it was only a few days
after Wencewicz was laid off that he told Estamabil to call Wencewicz and tell
him to return to work. Estamabil
testified that pursuant to Moskowitz’ instructions, he called Wencewicz a few
days after the layoff and told him to come back to work. He states that Wencewicz said, “[L]eave me
alone” and hung up the phone.
According to Moskowitz, Estamabil told him
about his phone conversation with Wencewicz about 2 or 3 weeks later. Moskowitz testified that “I think I tried to
call him . . . and couldn’t get through.”
He states that about another 2 weeks passed before he finally got to
talk to Wencewicz and asked him if he was coming back to work and was told that
he had gotten another job.
General Counsels’ Exhibit 57 is a letter dated
March 11, 2004, from Moskowitz to Wencewicz that states:
This letter shall serve as a follow up to our telephone conversation of last night. In that telephone conversation I asked you if you were returning to work and you replied you were not returning to work due to the fact that you are currently employed at another job. Please be advised that if you are prepared to return to work at Matros Automated Electrical Corp. you must return on Wednesday, March 16, 2005 at 8:00. . . .
. . . .
If you fail to comply with the instructions in this letter we will view your actions as your resignation of employment at Matros Automated Electrical Corp.
Once again, it is my opinion that a problem
with the Respondent’s story is the time line.
The Respondent’s witnesses testified that only a few days after his layoff
on January 21, 2005, Wencewicz was asked to return to work by Estamabil. But after this alleged first contact,
Moskowitz by his own account, waited up to 3 weeks before making any further attempts
to call Wencewicz and only spoke to him about 5 weeks after the initial layoff. (According to the letter, on March 10, 2005.)
As noted above, I believe that Moskowitz was
not truthful regarding his claim that he was not aware of Local 3 union
activity in 2004 until he received the election petition. I also think that Estamabil should not be
credited regarding his implausible assertion that although he did see Hodge,
Garay, Wencewicz, and Gonzales at the Local 3 meetings, he did not share that
information with Moskowitz.
Accordingly, crediting Wencewicz over
Moskowitz and Estamabil, I conclude that Wencewicz was not asked to come back
to work within a few days after being laid off on January 21, 2005. Rather, I conclude that Wencewicz was falsely
led to believe that his layoff would be for only a couple of days and that the
Company did not offer to recall him until 1-1/2 months later and only after an
unfair labor practice charge had been filed on February 15, 2005. I therefore conclude that per Wright Line,
the General Counsels have made out a prima facie case of discrimination and
that the Respondent has failed to rebut it.
3. The discharge of Gilberto Gonzalez
Gonzalez was hired in 1999 and after being on
the BTZ payroll was transferred to the Matros payroll in 2002. At times he was assigned to be a foreman and
worked on Moskowitz’ home. This latter
piece of evidence presumably was presented by the General Counsels to show that
Moskowitz trusted Gonzalez’ work enough to have him do electrical work at his
own home.
Gonzalez attended the Local 3 meetings that
were held in the spring of 2004 and testified that he solicited other employees
to sign union authorization cards. He
further testified that about 6 months before the election, Moskowitz asked him
if he wanted to go to Local 3 and that he (Moskowitz) said that didn’t want to
go to Local 3. In other respects, Gonzalez’
version of this conversation was unintelligible to me.
According to Gonzalez, he and Joseph Hodge
resumed soliciting new authorization cards for Local 3 in 2005, after Matros
had entered into a contract with Local 363.
(That agreement was made on November 17, 2004.)
Gonzalez claims that sometime in 2004 or 2005,
while he was employed at the
Gonzalez was discharged on December 14, 2005,
while briefly working at a BTZ jobsite located at
Gonzalez was assigned to this jobsite, which
was relatively large construction project in Red Hook. He was assigned to work with Shay Chickly, an
electrician who was on the BTZ payroll.
Everyone agrees that the work was out in the open and that it was cold
outside.
According to Gonzalez, when he arrived at the
site, the workers were on a long break and that after the break was over, it
was already lunchtime. He testified that
he was fired at around 1:45 p.m. by Mark Aminov, the foreman. He states that he called the office and spoke
to Estamabil who confirmed that he had been fired.
I found Gonzalez’ testimony regarding the circumstances
of his work at this jobsite and his termination to be evasive and
confusing. As far as I can tell, his
story is that everyone else who was on the jobsite was not working and that he
was the only person who was doing his job.
I don’t believe him.
Shay Chicly testified that Gonzalez appeared
at the site in December 2005 and was assigned to work with him. He states that during the lunchbreak, the men
were talking about anticipated Christmas bonuses and Gonzalez stated that for
his bonus, he hoped that he would be fired.
After that, according to Chicly, he told Gonzalez to pull a cable but at
the end of the day, Gonzalez hadn’t completed the work to which he was
assigned.
On the following day according to Chicly,
Gonzalez arrived about 1-1/2 hours late and by the morning break, still hadn’t
done the work assigned to him. Chicly states that after the break he told
foreman Mark Aminov that he couldn’t find Gonzalez and Aminov told him that he
would take care of it. Aminov testified
that he went looking for Gonzalez and found him hiding in a room. He states that when Gonzalez complained about
the cold, he told Gonzalez to go downstairs where there was a heater and then
go back to work. According to Aminov,
after the morning break, he again went looking for Gonzalez and when he found
him, Gonzalez expressed his reluctance to go back to work and stated that he
was cold. Aminov states that he again
told Gonzalez that he could warm himself downstairs but that he should then
return to work. He states that Gonzalez
then said, “Fuck Stuart. I don’t care
about Stuart.”
Aminov testified that after the last incident
with Gonzalez, he called John Mata and asked him to pull Gonzalez off the
job. He states that when Mata asked why,
he reported the morning’s events. Aminov
testified that Mata asked for a second, and then told him to tell Gonzalez to
pack his tools. Aminov states that when
he told Gonzalez to leave, Gonzalez thanked him and said that he could now
collect unemployment insurance. Aminov testified that he didn’t understand Gonzalez’
comments and told him that he didn’t think that he could collect unemployment. According to Aminov, Gonzalez called Mata and
asked if he was being fired.
Moskowitz testified that he approved Mata’s
decision to fire Gonzalez after being told by Mata that Gonzalez was reported
to be shirking his work and had said, “Fuck Moskowitz.”
In my opinion, the Respondent has shown by
credible evidence that it would have discharged Gonzalez notwithstanding his
union or protected activity. I credit
the testimony of Chicly and Aminov to the effect that Gonzalez arrived at the
Additionally, because I do not think that
Gonzalez was a reliable witness, I am going to recommend dismissal of the interrogation
allegation and the alleged discharge threat to the extent that they were based
solely on his testimony.
4. Roses and raises
You know the expression: “A rose by any other
name . . . .” But sometimes a cliché can be a useful metaphor.
The General Counsels asserts that in December
2004, the Respondent violated the Act by assigning Gilberto Gonzalez and
Jaroslaw Wencewicz lower classifications than what they deserved. This took place at about the same time that
Matros recognized and executed a collective-bargaining agreement with Local
363. The evidence indicates that all of
the employees were assigned formal classifications at this time so that Local
363 and Moskowitz could fit them into the appropriate pay categories under the
Local 363 contract.
Under the previous contract with Local 174/342
there were four categories of employees for purposes of minimum hourly pay
rates. These were:
Journeyman $20/hr
Advance Helper 18/hr
Helper 14/hr
Beginner 11/hr
As of the expiration of the old contract,
Gonzalez was paid $20 per hour and Wencewicz was paid $18 per hour. Nevertheless, the evidence does not indicate
that the Company had previously used official classifications. It seems that employees on the Matros payroll
worked until they learned aspects of the craft and then were given wage rates
determined by Moskowitz in accordance with his evaluation of their skill levels. The old contract also contained a provision
that provided that employees were supposed to attend the Mechanic’s Institute
and take electrician classes. The
contract provided that upon the successful completion of the courses at various
stages, employees would be promoted from beginner to journeyman. Thus, the old contract provided an objective
method for promotions and not one based on Moskowitz’ opinion. For better or worse, neither Gonzalez nor
Wencewicz availed themselves of these courses.
The bottom line is that when the Wencewicz and
Gonzalez received job classifications in late 2004, they did not have their pay
or benefits reduced. Nor is there
evidence that any other aspect of their employment was adversely affected. Whatever name they were called, there was no
adverse action taken vis a vis
their employment. I therefore reject the
contention that the Respondent discriminated against them in this respect and
recommend that this allegation be dismissed.
There is no dispute that after the contract
with Local 174/342 expired, Moskowitz decided to give raises and/or retroactive
payments to the employees who were on the Matros payroll. The first set of raises was given in November
2004 to all employees except for Hodge, Wencewicz, Gonzalez, and another
employee named Herman Texeira. (Garay
did not receive a raise because he had already been discharged. The employer
noted that another employee named Urgiles also failed to get a raise, albeit
Moskowitz did not testify about him.)
Another round of raises was given in January, March and June 2005. Everyone got these raises except for Hodge
and Gonzalez. (By January 2005, Garay
and Wencewicz were no longer employed.)
Coincidentally, Hodge, Wencewicz, and Gonzalez,
were three of the five or six employees who were spotted by Estamabil and Azic
at the Local 3 IBEW meetings. Hodge was
the observer for Local 3 at the election held on May 21, 2004, and Hodge along
with Gonzalez, resumed soliciting authorization cards for Local 3, after Matros
entered into a contract with Local 363.
In describing why he did not give the 2004
raises to the individuals listed above, Moskowitz testified that he didn’t
think that these people were as productive as the other workers who got
raises. With respect to Wencewicz,
Moskowitz also testified that there were several incidents where he broke objects
in apartments but could only specify one situation where he broke a light
fixture. With respect to Gonzalez,
Moskowitz testified that he was already paying him $21.25 an hour and in light
of his rather poor productivity, he didn’t feel that Gonzalez deserved a
raise. With respect to Hodge, Moskowitz
testified that he was already receiving $25.50 an hour (higher than most of the
other Matros employees), and that he was a very slow worker. He therefore testified that he didn’t feel
that Hodge’s productivity warranted a raise.
As to Herman Texeira, Moskowitz testified that he couldn’t recall why he
didn’t give him a raise in 2004 and that he was a good worker. Texeira received raises in 2005.
Notwithstanding Moskowitz’ assertion that
Hodge was an exceedingly slow worker, he never issued any warning to Hodge
regarding this alleged debility despite the evidence that shows that in the
past, Moskowitz has issued warnings to other employees for poor
productivity. See for example General
Counsels’ Exhibit 83 regarding employee Lindy Baptiste.
It is not my intention to substitute my
judgment as to whether the employees who were denied pay increases deserved
them based on an objective evaluation by me of their actual productivity during
the years in question or for any other reason.
What I am called upon to decide is whether I believe the reasons given
by Moskowitz for his decisions or whether they were in fact, motivated by union
considerations. I have already concluded
that Moskowitz’ testimony regarding several relevant aspects of this case was
less than reliable. Moreover, as the
evidence shows a substantial correlation between those individuals who actively
supported Local 3 and the individuals who were denied pay increases, it is, in
my opinion, more probable that these individuals were denied pay increases because
of their sympathies and/or support for Local 3.[6]
iii. analysis
Having already found that the Employer has
violated the Act in various respects, I shall not repeat here the facts or my
legal conclusions regarding those allegations.
A. The Members Only Contract Allegation
The complaint alleges that since December 2,
2003, Matros and Local 174/342 have had a practice of applying contractual
wages and benefits only to those employees who had been selected by the Company
to be members of that
One could wonder how the General Counsels
picked this date, inasmuch as this practice began and had been going on since
at 1997 when BTZ was created as a separate corporation from Matros. Obviously, the date is 6 months before the
date that the charge in Case 2–CA–36296–1 was filed. But Moskowitz made no effort to conceal the
practice that some of his employees were getting the wage and benefits of the
union contract and others were not. I
imagine that the General Counsels are claiming that that this is a violation
despite the 10(b) statute of limitations on the theory that although the
initial creation of the “member’s only contract” took place in 1997, the violation
is “continuing” and can survives a challenge from Section 10(b) of the Act.
I conclude, irrespective of the 10(b) defense,
that the Respondent has not violated the Act in this respect.
There is no question but that Matros and BTZ
constitute a single employer within the meaning of the Act. Moreover, had the incumbent union (Local
174), back in 1997 or even in 1998, contended by way of an arbitration
proceeding or an unfair labor practice or a unit clarification petition, that
the employees of BTZ should be considered as an “accretion” to the existing
multiemployer bargaining unit to which the Matros employees belonged, it is probable
that they would have been legally correct.
But that didn’t happen.
For whatever reason, Local 174/342 allowed Moskowitz
to operate a “double breasted” shop where the employees of one were covered by
its labor contract and the employees of the other were allowed to perform
electrical work as a nonunion shop. By December
2003, the bargaining history had, de facto, created two separate units within a
single employer. Land Equipment,
Inc., 248 NLRB 685, 688 (1980).
It seems to me that there is a distinction between
whether a collective-bargaining agreement may discriminate because it is applied
only to members of a union and the situation where the collective-bargaining
agreement is not applied to employees who are not members of the bargaining
unit. The distinction is between whether
a contract is not applied to employees because of their union membership or
whether a contract is not applied to employees because of their unit
membership. If the unit is unambiguous
and those employees who are clearly members of the bargaining unit are not
being paid the contract rates because of their lack of union membership, then
the argument can be made that the employer is violating Section 8(a)(3). On the other hand, if certain employees are
not being paid the contract rates, not because of their lack of union
membership, but because the contracting parties have agreed or treated them as
not being part of the collective-bargaining unit, then there is no 8(a)(3)
violation.
In the present case, it is clear to me that
since at least 1997 and for at least
seven more years, Local 174 and its successor, Local 342, have treated the
complement of Moskowitz employees who have been assigned to work on the BTZ
payroll as a separate unit of employees who were not included in the bargaining
unit. This may have been an oversight or
it may have been intentional. But it
nevertheless was the case. Therefore,
those employees, to the extent that they did not receive contractual wages and
benefits did not have the contractual benefits withheld because of their lack
of union membership, but because of their lack of unit inclusion. I therefore, agree with the Employer’s
contentions on this issue and I think that its reliance on Tabernacle Sand & Gravel Corp., 232 NLRB 957 (1977), is
apposite.
B. The Recognition of Local 363 by Matros
Under Board law, an employer may voluntarily
grant recognition to a union but it does so “at its peril” if a charge is later
filed within the statutory limitations period and it turns out that the union
did not represent an uncoerced majority of the employees in the recognized
bargaining unit. Ladies Garment Workers’ (Berhard-Altman Texas Corp.) v. NLRB, 366
The law is equally clear that once notified
that a valid representation petition has been filed, an employer, except where
there is an incumbent union, must refrain from recognizing any of the set of
rival unions and may not, without violating Section 8(a)(2) of the Act, enter
into a collective-bargaining agreement with either of them. Bruckner
Nursing Home, 262 NLRB 955, 957 (1982).[7] As pointed out by the General Counsels, a petition
is considered pending while objections remain unresolved or during a time when
the petition is held in abeyance. Wackenhut Corp., 287 NLRB 374, 376
(1987), and Haddon House Food Products,
269 NLRB 338, 341 (1984).
As demonstrated by RCA Del Caribe and Wackenhut,
there is a distinction between situations where there are two rival unions and
the situation where there is a recognized incumbent union and a rival union
that is seeking to displace the incumbent through the election process. In Wackenhut,
the Board noted that in Gulf &
Western Mfg. Co., 227 NLRB 696 (1977), an incumbent union had won an
election and that while objections were pending, the employer and the incumbent
executed a new agreement. It was noted
that the objections eventually were overruled and the Board held that although
the parties acted at their peril in negotiating the agreement during the
pendency of the objections, they had accurately anticipated the disposition of
the objections and therefore their actions did not violate the Act.
In my opinion, the granting of recognition by
Matros to Local 363 (a nonincumbent union), at a time when an election
proceeding was still pending, constituted a violation of Section 8(a)(1) and
(2) of the Act on the part of the Employer and a violation of Section
8(b)(1)(A) on the part of Local 363. Accordingly,
I need not decide whether Local 363 had obtained authorization cards from a
majority of the employees in an appropriate unit as this question is
irrelevant.
Further, as the collective-bargaining
agreements executed between Matros and Local 363 contained union-security and
dues-checkoff provisions, this constituted a violation of Section 8(a)(3) of
the Act on the part of the Employer and a violation of Section 8(b)(2) of the
Act on the part of Local 363. Finally,
as I have concluded that the Matros/Local 363 contract is illegal under Section
8(a)(1), (2), and (3) and 8(b)(1)(A) and (2), I conclude that Local 363 by
Shimkus violated Section 8(b)(1)(A) by telling Hodge that he would recommend to
the Employer, that Hodge be discharged if he did not sign a Local 363
membership application.
C. The Recognition of Local 363 by BTZ
The allegations regarding the recognition of
Local 363 by BTZ are a little more complicated.
Although Matros and BTZ constituted a single employer,
I have also concluded that from about 1997, the employees on the payroll of
each corporation have constituted separate bargaining units essentially because
of the bargaining history with Local 174/342.
If I was called upon to decide, as an initial
matter and in the absence of a bargaining history, whether the employees on the
payroll of Matros and the employees on the payroll of BTZ could constitute
separate appropriate units, the answer would be no. The evidence shows that there was common control,
that there was common supervision and that there was substantial employee
interchange between these two corporate entities. In many cases, employees who originally were
placed on the BTZ payroll were moved over to the Matros payroll without any
break in employment. The evidence shows
that employees on the BTZ and Matros payrolls worked together as mixed crews on
both rehabilitation and construction jobs in
But the evidence is also clear that by virtue
of the actions (or inactions), of Local 174/342, the employees of BTZ were not
part of the multiemployer bargaining unit that included the Matros’ electrical
workers. This existed up until April 1,
2004, albeit it was abundantly clear, even before that date that this was about
to change.
Even under Section 8(f), which does not
require majority support, in order for BTZ’ recognition of Local 363 to be legal,
this would require that the employees of BTZ, at the time of recognition, could exist as a separate appropriate
bargaining unit. And in this respect, I
conclude that what had previously existed as a separate unit, no longer existed.
The only way that the employees on the BTZ
payroll could constitute a separate bargaining unit was because of the bargaining
history wherein that group was excluded from the larger, multiemployer
bargaining unit. Otherwise, the degree
to which the employees on both the BTZ and Matros employees were integrated
would not allow for separate units except by virtue of the bargaining
history. But by April 1, 2004, the multiemployer
bargaining unit no longer existed and the bargaining history no longer was
relevant. Further, Moskowitz was clearly
aware that the incumbent union, Local 342, was intending to transfer its
representational rights to Local 3 and to assist Local 3 in becoming its
replacement. This is shown in the memorandum
that Moskowitz delivered to his employees on March 23, 2004. It therefore is obvious to me that Moskowitz
was well aware that Local 342 was going to disclaim any interest in representing
the Matros employees. And this is, in
fact, what did happen after Local 3 filed its petitions to represent the employees
of the various companies that had previously been members of the now defunct
employer association.
Given the fact that the multiemployer
association had been dissolved no later than April 1, 2004, and the correctly
anticipated fact that Local 342 was no longer interested in representing the
employees on the Matros payroll, the bargaining history that had previously
separated the Matros employees from the BTZ employees was no longer in effect
and therefore was no longer relevant or operative.[8] I therefore conclude that as of April 1,
2004, when BTZ recognized Local 363 as the collective-bargaining representative
of the electrical employees on the BTZ payroll, such a unit no longer could be
deemed to be an appropriate unit; the only appropriate unit being one that
included all of the electrical employees who were on the combined payrolls of
Matros and BTZ.[9]
I therefore conclude that the Respondent
violated Section 8(a)(1), (2), and (3) when it recognized Local 363 as the bargaining
representative of the employees who were on the BTZ payroll and entered into
collective-bargaining agreements that contained union-security and dues-checkoff
provisions. I also conclude that Local
363 violated Section 8(b)(1)(A) and (2) by accepting recognition in an
inappropriate unit and by executing collective-bargaining agreements containing
the aforementioned clauses.
This conclusion is not affected by the fact
that Local 3 IBEW, on April 30, 2004, entered into a Consent Election Agreement
wherein the vote was to be held among the Matros employees. (The agreement did not, by its terms, either
include or exclude the BTZ employees.)
In the circumstances, the agreement by Local 3 to have a consent
election amongst the employees on the Matros payroll cannot be viewed as being
tantamount to an ex post facto waiver that the people on the BTZ payroll should
exist as a separate unit. At the time of
the agreement, Local 3 representatives, although being aware that there was
some kind of a relationship between BTZ and Matros, did not have full knowledge
of the detailed relationship between the two corporate entities. Also, they were in the midst of a group of
election petitions involving Matros and eleven other companies and had to make
a choice between having a quick election and having to go through a litigation
on the issue of whether the employees on the Matros and BTZ payrolls constituted
the only appropriate unit.
Inasmuch the evidence points to the conclusion
that the previously defined multiemployer unit no longer existed, the fact that
Local 342 disclaimed interest in representing the employees in that unit, and
the evidence showing that the only appropriate unit would have been a combined
unit of Matros/BTZ employees, I would think that appropriate course for the Regional
Director would be to declare the election a nullity and reopen the representation
case to determine what unions should be on the ballot and what employees should
be eligible to vote. But that is only a
suggestion. It is not my role to make
findings in the representation case that is not before me.
D. Other Assistance
The complaint alleges that in April and May 2004,
Moskowitz illegally assisted Local 363 by orchestrating three meetings during
working hours, requiring employees to attend these meetings and attending the
meeting held on May 20, 2004.
The record indicates that it was employee
DeVaynes who was most instrumental in supporting Local 363 and who was the one
who arranged for the meetings with Local 363 representatives. I cannot state, based on this record that his
actions were taken either pursuant to the direction of Moskowitz. At most, it appears that DeVaynes, through Supervisor
Joe Estamabil, set up meetings on an unoccupied floor in the building in which
the Company rents space and that he held and conducted another meetings at a
jobsite. (That is, the meetings were not
held on company property.) In each
instance, the evidence shows that employees were told of these meetings by communication
with the office receptionist and that they went to the meetings during worktime
for which they were paid. The meetings
held at
In a situation where there are rival unions,
neither of which is an incumbent, an employer, once a representation petition
has been filed, is obligated to maintain neutrality in the sense that it cannot
recognize one of the competing unions. Bruckner
Nursing Home, supra. But this does not mean that the employer cannot
express his opinion as to which union he would prefer so long as this is done
in a non-coercive manner. Tecumseh Corrugated
Box Co., 333 NLRB 1 (2001); Alley Construction Co., 210 NLRB 999
(1974); Plymouth Shoe Co., 182 NLRB 1 (1970). Nor can it be said that an employer violates
the Act merely because it allows union representatives to meet its employees on
company premises and company time. Tecumseh
Corrugated Box Co., supra; Coamo Knitting Mills, Inc., 150 NLRB 579
(1964).
In my opinion, the assistance given here to
Local 363 went beyond what was permissible under the Act. I have already concluded that in addition to
helping arrange for the employees to meet with Local 363 representatives and
paying for their time, supervisors attended and remained at a couple of these
meetings even though they did not talk.
More significantly, the evidence shows that Moskowitz, at the May 20
meeting, did more than merely express his views opposing Local 3 and favoring
Local 363. He told the employees that if
Local 3 won the election, he would never sign a contract and that he would
rather close the business and move to
Conclusions of Law
1. By recognizing and entering into successive
collective-bargaining agreements with Local 363, such contracts containing
union-security and dues-checkoff clauses, the Respondent Matros/BTZ has
violated Section 8(a)(1), (2), and (3) of the Act.
2. By interrogating employees about their
sympathies or activities on behalf of Local 3, IBEW, the Respondent has violated
Section 8(a)(1) of the Act.
3. By promising employees promotions and other
benefits in order to dissuade them from voting for Local 3, IBEW, the
Respondent has violated Section 8(a)(1) of the Act.
4. By threatening employees that it would shut
down the business, the Respondent has violated Section 8(a)(1) of the Act.
5. By telling employees that even if Local 3,
IBEW won the election, it would never sign a contact with that labor organization,
the Respondent has violated Section 8(a)(1) of the Act.
6. By discharging Aparicio Garay because of
his activities and support for Local 3, IBEW, the Respondent has violated
Section 8(a)(1) and (3) of the Act.
7. By failing to recall from a temporary
layoff and therefore discharging Jaroslaw Wencewicz because of his activities
and support for Local 3, IBEW, the Respondent has violated Section 8(a)(1) of
the Act.
8. By failing to give raises to Hodge,
Wencewicz, and Gonzalez because of their activities and support for Local 3,
IBEW, the Respondent has violated Section 8(a)(1) of the Act.
9. By giving assistance to Local 363, the
Respondent has violated Section 8(a)(1) and (2) of the Act.
10. By accepting recognition from Matros/BTZ
as the representative of its employees and by entering into collective-bargaining
agreements containing union-security and dues-checkoff clauses, the Respondent,
Local 363, has violated Section 8(b)(1)(A) and (2) of the Act.
11. By threatening to cause the discharge of
an employee if he refused to sign a Local 363 membership application, the
Respondent, Local 363, has violated Section 8(b)(1)(A) of the Act.
12. The aforesaid unfair labor practices
affect commerce within the meaning of the Act.
13. The Respondents have not violated the Act
in any other manner encompassed by the complaint.
Remedy
Having found that the Respondents have engaged
in certain unfair labor practices, I find that they must be ordered to cease
and desist and to take certain affirmative action designed to effectuate the
policies of the Act.
It is recommended that the employer be ordered
to withdraw and withhold recognition from Local 363 for the employees on the
Matros and BTZ payrolls and to cease and desist from giving force or effect to
any collective-bargaining agreements covering those employees, unless and until
that Union is certified by the Board as the collective-bargaining
representative of the employees at that location. However, nothing herein shall be construed to
require the employer to vary any wage or other substantive terms or condition
of employment that has been established in the performance of the
contract.
It is further recommended that Local 363 be
ordered to cease and desist from acting as the bargaining representative of the
aforesaid employees or giving effect to its contracts with the employer unless
and until it is certified by the Board as the collective-bargaining
representative of the employees at that location.
It is additionally recommended that the employer
and Local 363 be ordered, jointly and severally, to reimburse all present and
former employees who joined Local 363 for all initiation fees, dues, and other
moneys which may have been exacted from them together with interest thereon as
set forth in Florida Steel Corp., 231
NLRB 651 (1977).
As I have concluded that the Respondent illegally
discharged Aparicio Garay and Jaroslaw Wencewicz, it must offer them
reinstatement to their former positions of employment or if those positions are
no longer available, to substantially equivalent positions of employment and
make them whole for any loss of earnings and other benefits, computed on a
quarterly basis from the date of such refusal less any net interim earnings, as
prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of
law and on the entire record, I issue the following recommended[10]
ORDER
A. The Respondent, Matros Automated Electrical
Construction Corp. and BTZ Electrical Corp.,
1. Cease and desist from
(a) Recognizing and entering into successive
collective-bargaining agreements with Local 363, and cease giving affect to the
union-security and dues-checkoff clauses of those contracts, unless and until
that labor organization is certified by the Board as the collective-bargaining
representative of such employees.
(b) Interrogating employees about their
sympathies or activities on behalf of Local 3, IBEW.
(c) Promising employees promotions and other
benefits in order to dissuade them from voting for Local 3, IBEW.
(d) Threatening employees that it would shut
down the business.
(e) Telling employees that even if Local 3,
IBEW won the election, it would never sign a contact with that labor organization.
(f) Discharging Aparicio Garay and Jaroslaw
Wencewicz because of their activities and support for Local 3, IBEW.
(g) Failing to give raises or retroactive
payments to Joseph Hodge, Jaroslaw Wencewicz, and Gilberto Gonzalez because of
their activities and support for Local 3, IBEW.
(h) Giving illegal assistance to Local 363
United Electrical Workers of America, IUJHAT.
(i) In any like or related manner interfering
with, restraining, or coercing employees in the rights guaranteed to them by Section
7 of the Act.
2. Take the following affirmative action
necessary to effectuate the policies of the Act.
(a) Withhold recognition from Local 363 United
Electrical Workers of America, IUJHAT as the representative of its employees
unless and until that
(b) Jointly and severally with Local 363
United Electrical Workers of America, IUJHAT, reimburse all former and present
employees employed for all initiation fees, dues, and other moneys which may
have been exacted from them with interest thereon in the manner provided in the
remedy section of this decision.
(c) Within 14 days from the date of this
Order, offer Garay Aparicio and Jaroslaw Wencewicz, full reinstatement to their
former jobs, or if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other rights or
privileges previously enjoyed and make them whole for any loss of earnings and
other benefits suffered as a result of the discrimination against them in the
manner set forth in the remedy section of this decision.
(d) Make whole, with interest, Joseph
Hodge, Jaroslaw Wencewicz, and Gilberto Gonzalez for the loss
of earnings they suffered as a result of the failure of the Respondent to give
them raises or other payments given to its other employees.
(e) Within 14 days from the date of this
Order, remove from its files any reference to the unlawful actions against
Garay Aparicio and Jaroslaw Wencewicz and within 3 days thereafter, notify them
in writing, that this has been done and that the discharges will not be used
against them in any way.
(f) Preserve and, within 14 days of a request,
or such additional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board or its agents, all
payroll records, social security payment records, timecards, personnel records
and reports, and all other records, including an electronic copy of such records
if stored in electronic form, necessary to analyze the amount of backpay due
under the terms of this Order.
(g) Within 14 days after service by the
Region, post at its facilities in
(h) Within 21 days after service by the
Region, file with the Regional Director a sworn certification of a responsible
official on a form provided by the Region attesting to the steps that the Respondent
has taken to comply.
B. The Respondent, Local 363, United Electrical
Workers of America, IUJHAT, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Acting as the collective-bargaining representative
of the employees of Matros Automated Electrical Construction Corp. and BTZ
Electrical Corp., unless and until it is certified by the Board as the
collective-bargaining representative of such employees.
(b) Maintaining or giving any force or effect
to any collective-bargaining agreement between it and Matros Automated
Electrical Construction Corp. and BTZ Electrical Corp., until it is certified
by the Board as the collective-bargaining representative of such employees.
(c) Threatening employees that it would cause
their discharge if they did not sign applications to become members of Local 363.
(d) In any like or related manner interfering
with, restraining, or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action
necessary to effectuate the policies of the Act.
(a) Jointly and severally with Matros
Automated Electrical Construction Corp. and BTZ Electrical Corp., reimburse all
former and present employees for all initiation fees, dues, and other moneys
which may have been exacted from them with interest thereon in the manner
provided in the remedy section of this decision.
(b) Within 14 days after service by the
Region, post at its offices and meeting halls, copies of the attached notice
marked “Appendix B.”[12] Copies of
the notice, on forms provided by the Regional Director for Region 2, after
being signed by the Respondent Local 363’s authorized representative, shall be
posted by Local 363 immediately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where notices to employees are
customarily posted. Reasonable steps
shall be taken by the Respondent Local 363 to ensure that the notices are not
altered, defaced, or covered by any other material. In the event that, during the pendency of
these proceedings, the Respondent Employer has gone out of business or closed
the facility involved in these proceedings, or sold the business or the
facilities involved herein, Local 363 shall duplicate and mail, at its own
expense, a copy of the notice to all current employees and former employees
employed by the Respondents at any time since April 1, 2004.
(c) Sign and return to the Regional Director
sufficient copies of the notice for posting by Matros Automated Electrical Construction
Corp. and BTZ Electrical Corp., at all places where notices to employees are
customarily posted.
(d) Within 21 days after service by the
Region, file with the Regional Director a sworn certification of a responsible
official on a form provided by the Region attesting to the steps that the Respondent
has taken to comply.
It is further ordered that the complaint is dismissed insofar as it
alleges violations of the Act not specifically found.
Dated,
APPENDIX
A
Notice To
Employees
Posted
by Order of the
National
Labor Relations Board
An Agency of the
The National Labor Relations Board has
found that we violated the National Labor Relations Act and has ordered us to
post and abide by this notice.
Section 7 of the Act gives employees
these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected concerted activities.
We will not recognize or enter into collective-bargaining
agreements with Local 363, and cease giving affect to the union-security and
dues-checkoff clauses of those contracts, unless and until that labor
organization is certified by the Board as the collective-bargaining representative
of such employees.
We will not discharge employees, withhold wage increases
or other benefits, or otherwise retaliate against any of our employees because
of their membership or support for Local 3, International Brotherhood of
Electrical Workers.
We will not interrogate employees about their sympathies
or activities on behalf of Local 3, IBEW.
We will not promise
our employees promotions and other benefits in order to dissuade them from
voting for Local 3, IBEW.
We will not threaten
our employees that we would shut down the business if Local 3, IBEW won the
election or became the bargaining representative.
We will not tell
our employees that even if Local 3, IBEW won an election, we would never sign a
contact with that labor organization.
We will not give illegal assistance to
Local 363, United Electrical Workers of America, IUJHAT.
We will not in any like or related manner interfere with,
restrain, or coerce our employees in the rights guaranteed to them by Section 7
of the Act.
We will withhold recognition from Local 363, United
Electrical Workers of America, IUJHAT as the representative of our employees
unless and until that
We will jointly and severally with Local 363, United
Electrical Workers of America, IUJHAT reimburse all former and present
employees for all initiation fees, dues, and other moneys which may have been
exacted from them with interest thereon.
We will offer Aparicio Garay and Jaroslaw Wencewicz
who have been found to have been illegally discharged, immediate and full reinstatement
to their former jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or any other rights
or privileges previously enjoyed, and make them whole for any loss of earnings
and other benefits suffered as a result of the discrimination against them.
We will make whole Aparicio Garay, Jaroslaw Wencewicz,
Gilberto Gonzalez, and Joseph Hodge for the loss of earnings they suffered as a
result of the discrimination against them.
We will remove from our files any reference to the
unlawful discharges that have been concluded to be unlawful and notify the
employees in writing that this has been done and that these actions will not be
used against them in any way.
Matros
Automated Electrical Construction Corp. and BTZ Electrical Corp.
APPENDIX
B
Notice To
Employees
Posted
by Order of the
National
Labor Relations Board
An Agency of the
The National Labor Relations Board has
found that we violated the National Labor Relations Act and has ordered us to
post and abide by this notice.
Section 7 of the Act gives employees
these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected concerted activities.
We will not act as the collective-bargaining representative
of the employees of Matros Automated Electrical Construction Corp. and BTZ
Electrical Corp., unless and until we are certified by the Board as the
collective-bargaining representative of such employees.
We will not maintain or give any force or effect to any
collective bargaining agreement between us and the above-named employer, unless
and until we are certified by the Board as the collective-bargaining representative
of such employees.
We will not in any like or related manner interfere with,
restrain, or coerce our employees in the rights guaranteed to them by Section 7
of the Act.
We will jointly and severally with the employer, reimburse
all former and present employees for all initiation fees, dues, and other
moneys which may have been exacted from them with interest thereon in the
manner provided in the remedy section of this decision.
Local 363, United Electrical Workers of