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,
Martinelli Interior Construction Company, Inc. and Metropolitan Regional Council of Carpenters,
Southeasten
December 21, 2007
DECISION AND ORDER
By Members Schaumber, Kirsanow, and Walsh
On October 1, 2007, Administrative Law Judge Bruce D. Rosenstein issued the attached decision. The Charging Party filed exceptions and a supporting brief, and the Respondent filed an answering brief.
The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.
The Board has considered the decision and the record in light of the exceptions and briefs, and has decided to affirm the judge’s rulings, findings,1 and conclusions2 and to adopt the recommended Order as modified.3
ORDER
The National Labor Relations Board adopts the recommended
Order of the administrative law judge as modified below and orders that the
Respondent, Martinelli Interior Construction Company, Inc.,
1. Substitute the following for paragraph 1(b).
“(b) 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. Substitute the attached notice for that of the administrative law judge.
Dated,
Peter C. Schaumber, Member
Peter N. Kirsanow, Member
Dennis P. Walsh, Member
(seal) National
Labor Relations Board
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 create the impression that employees’ union activities were under surveillance.
We will not in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.
Martinelli Interior Construction Company, Inc.
Edward J. Bonett Jr., Esq., for the General Counsel.
Marc
Furman, Esq., of
Stephen
J. Holroyd, Esq., of
DECISION
Statement of the Case
Bruce D. Rosenstein, Administrative Law Judge. This case was tried
before me on July 11 and 12, 2007,[1] in
Issues
The complaint
alleges that the Respondent created the impression that employee’s union
activities were under surveillance in violation of Section 8(a)(1) of the Act
and that it discharged its employee Michael Long in violation of Section
8(a)(1) and (3) of the Act.
On the entire
record, including my observation of the demeanor of the witnesses, and after
considering the briefs filed by the General Counsel, the Charging Party, and
the Respondent, I make the following
Findings of Fact
i. jurisdiction
The Respondent,
a Delaware corporation, with a principal office located in Wayne, Pennsylvania,
has been engaged in business as an interior fit out carpentry subcontractor in
the construction industry. During the
past year, Respondent, in conducting its business operations provided goods and
services valued in excess of $50,000 directly to customers located outside the
ii. alleged unfair labor practices
A. Background
The Respondent
is a small open shop carpentry subcontractor in the construction industry that
has approximately 7–10 permanent employees on its payroll but also employs
subcontractors. It primarily works on
commercial projects and provides carpentry services as needed for general contractors.
The president of the Company is Susanne Martinelli and her husband, Alfred (Buddy)
Martinelli (B. Martinelli or A. Martinelli), is vice president and part
owner. A. Martinelli serves as chief
estimator and construction coordinator and is the only managerial
representative that has the authority to hire, fire, and discipline
employees. Martinelli’s brother, Greg
(G. Martinelli), serves as one of the two working carpentry foreman along with
Joseph Gallagher. However, neither G.
Martinelli nor Gallagher has the authority to hire, fire, or discipline employees. At all times material, Michael Long is a
journeyman carpenter who prior to being employed with the Respondent on
November 21, 2006, was and continues to be a full-time paid union
representative. As part of his job
duties, Long was instructed by his superiors to attempt to organize employees
of nonunion companies by securing employment and then educating employees about
the benefits of union representation with the intention of the Union becoming
the collective-bargaining representative of the employees. The Respondent was the first nonunion employer
that Long worked for.[2]
In mid-November
2006, while driving in the area, Long noticed a large construction site and
decided to walk on the premises to seek employment as a carpenter. He left his name and telephone number with
the individual in charge and several days later received a return telephone
call from A. Martinelli. During the
course of their telephone conversation information was exchanged about Long’s
prior experience and the type of jobs he had previously performed as a skilled
carpenter. Without informing Long, A. Martinelli
instructed his financial consultant to conduct a D & B (Dunn and
Bradstreet) report on Long to discern if there were any problems with his prior
experience as a self-employed carpenter.
Upon learning that the D & B report did not uncover any
irregularities, A. Martinelli offered a carpenter position to Long at the rate
of $20 per hour.[3] Long did not reveal his union affiliation to
any coworker or to any member of management until January 30, when he wore a union
sweatshirt to the 220 E. Lancaster Avenue job (Dane Décor) and spoke to fellow
employee Marc Palumbo about the benefits of being a union member. During the morning of January 30, the general
contractor representative on the job, Andy Purcell, commented to Long that we
have a “spy” on the project.
B. The Agency Status of G. Martinelli
The Board and
the courts have uniformly held that whether someone acts as an agent under the
Act must be determined by common law principles of agency. See, e.g. NLRB
v. Plasterers Local 90 (
Applying these
principles to the subject case, the evidence establishes that G. Martinelli is
a foreman of the Respondent with the authority to assign work to employees
while on the jobsite. Likewise, G. Martinelli
is the Respondent’s representative on the jobsite who is the liaison with the general
contractor. The evidence further shows
that G. Martinelli gave a direct order
to Long on the Dana Décor jobsite to install a door in an elevator room as part
of his official duties.
Under these
circumstances, and particularly noting that employees including Long recognized
G. Martinelli as the person in charge on the jobsite, I find that G. Martinelli
is an agent of the Respondent and reject the Respondent’s denial in its answer
to the contrary. Facchina Construction Co., 343 NLRB 886, 887 (2004) (company
foremen were agents, as they served as conduits between employees and
management, employees receive their daily assignments and work instructions
from the foremen, and foremen were responsible for overseeing employees’ work
and instructing them to redo work if it is done incorrectly); Celtic General Contractors, 341 NLRB
862, 877 (2004) (brother of company president was an agent, because he spoke
with considerable authority and was used as a conduit to employees).
C. The 8(a)(1) Allegation
The General
Counsel alleges in paragraph 5 of the complaint that Respondent, by A. Martinelli,
at a jobsite located in Blue Bell, Pennsylvania, created the impression that employees’
union activities were under surveillance by telling an employee that he had the
employee checked to see if he was a union “plant.”
1. Facts
Long, on
December 28, 2006, was working at the
Union Representative
William Cassidy went to the jobsite where the incident occurred and inquired
about the well being of Velasquez.
Cassidy learned that he had recovered and was back working on the
job.
Long, on
December 29, 2006, was working at the 630 Skippack Pike job jobsite (GC Exh. 2)
along with A. Martinelli and fellow employees Vince Grosso and Jorge
Cordenos. He overheard a telephone
conversation that Cordenos received concerning Cassidy showing up on a jobsite
and inquiring about the welfare of Velasquez.
After the telephone call was completed, A. Martinelli told Long that he
should always wear his hardhat, safety glasses, and if he was in a boom lift,
he should make sure that his harness was on.
A. Martinelli told Long that the
2. Analysis
Long’s testimony
has a ring of truth to it and the above statement is consistent with his
contemporaneous notes taken on December 29, 2006 (GC Exh. 7(d)).[4] Likewise, Counsel for the Respondent reviewed
his pretrial affidavit before commencing cross-examination and did not
challenge Long’s version of what a. Martinelli stated to him. A. Martinelli did not specifically deny that
he made the statement attributed to him in the complaint. Rather, he generally denied ever having any employee
checked out to see if they were union members.
Under these
circumstances, I conclude that A. Martinelli made the statement alleged in the complaint
and find that the Respondent created the impression that employees union activities
were under surveillance in violation of Section 8(a)(1) of the Act.
D. The 8(a)(1) and (3) Allegations
In Wright Line, 251 NLRB 1083 (1980), enfd,
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Board
announced the following causation test in all cases alleging violations of
Section 8(a)(3) or violations of Section 8(a)(1) turning on employer
motivation. First, the General Counsel
must make a prima facie showing sufficient to support the inference that
protected conduct was a “motivating factor” in the employer decision. On such a
showing, the burden shifts to the employer to demonstrate that the same action
would have taken place even in the absence of the protected conduct. The United States Supreme Court approved and
adopted the Board’s Wright Line test
in NLRB v. Transportation Management
Corp., 462 U.S. 393, 399–403 (1993).
In Manno Electric, 321 NLRB
278 fn. 12 (1996), the Board restated the test as follows. The General Counsel has the burden to
persuade that antiunion sentiment was a substantial or motivating factor in the
challenged employer decision. The burden
of persuasion then shifts to the employer to prove its affirmative defense that
it would have taken the same action even if the employee had not engaged in
protected activity.
The General
Counsel alleges in paragraph 6 of the complaint that the Respondent, on or
about January 31, discharged its employee Michael Long because he supported and
assisted the
1. Facts
During Long’s
first day of employment on November 21, 2006, he made a statement that he did
not like Mexicans especially black ones.
A. Martinelli immediately informed him that we do not talk like that
about our fellow employees.
Long was hired
by A. Martinelli without the benefit of an application for employment, but he
ultimately received the application on November 26, 2006. The application shows that in addition to his
education Long noted that he had been self-employed as a carpenter from 2001 to
the present and was applying for the position as he needed a steady
paycheck. Long did not list any other
prior employers on the application and did not reveal his position as a
full-time paid union organizer. Accordingly,
the application was not complete and Long misrepresented his employment
history.
Long worked on
approximately six different jobsites during the course of his employment (GC
Exh. 2). He regularly received job
assignments from A. Martinelli, G. Martinelli, or Gallagher while working at
these locations along with other employees of the Respondent.
Long, between
November 21, 2006, and January 18, experienced no job-related problems for
which he was counseled, reprimanded, or had written memoranda placed in his
personnel file. Indeed, over the
Christmas holiday Long received a number of gifts including an employee
jacket. A. Martinelli recognized Longs
skills as a journeyman carpenter in the beginning of January 2007, when he
received a wage increase of $2 per hour.
On January 9, A. Martinelli told Long that he should be around a long
time at the Respondent (GC Exh. 7(f)), and often complimented his skills as a
carpenter during this period (GC Exh. 7(a)).
A. Martinelli,
on January 19, had a telephone conversation with Forrest Grove Enterprises
Project Manager Franco D’Andrea wherein A. Martinelli learned for the first
time that D’Andrea was experiencing problems with Long. D’Andrea told A. Martinelli that Long
exhibited a poor attitude on the
Long, by letter
dated January 21, filed a complaint against the Respondent with the
Pennsylvania Department of Labor alleging that he and other employees were not
paid for overtime work at the proper rate (GC Exh. 4).
On January 25,
Department of Labor employee Joseph Winkler arrived at the 630 Skippack Pike
jobsite where Long was working that day, to investigate the overtime work complaint.
Long, on January
26, while working at the court at
A. Martinelli
testified that he was away from the area when the Department of Labor complaint
was filed but his brother called on January 26 to inform him that Long had
filed the overtime complaint and that Winkler had visited one of their jobsites
on January 25. A. Martinelli instructed
G. Martinelli to telephone there financial consultant to straighten out the overtime
claim but to wait until he had a chance to telephone the consultant to bring
him up to speed. The record shows that
Long was paid by check dated February 2, for the back overtime that he was owed
(GC Exh. 6).
A. Martinelli
testified that he went to
Martinelli,
contacted his financial consultant on January 26 immediately after he completed
his telephone conversation with Beckers, and discussed whether it was prudent
to terminate Long based on the issues raised by D’Andrea and Beckers. It was jointly decided during the course of
the telephone conversation that Long should be terminated based on these
incidents and the racial slur that he uttered on November 21, 2006. A. Martinelli instructed the financial
consultant to prepare a termination letter to give to Long when he returned to
Long, on January
30, wore a union sweatshirt to the
A. Martinelli,
on January 31 around 5:30 a.m., telephoned Long to come to the court at
2. Analysis
The General
Counsel argues that Long was a skilled carpenter who was routinely complimented
by A. Martinelli, was never counseled or reprimanded, and it was not until he
filed an overtime complaint with the Pennsylvania Department of Labor and wore
his union sweatshirt that the Respondent took disciplinary action against
him. Moreover, the Respondent never told
Long about the complaints that D’Andrea and Beckers made nor was he informed
that he was removed from the Forrest Grove Enterprises jobsites or other job
locations because of his conduct. Accordingly,
the General Counsel asserts that the reasons advanced by the Respondent for
Long’s discharge are pretextual and a finding should be made that the Act was
violated.
The Respondent
opines that Long was terminated for legitimate business reasons unrelated to
his protected activities. In this
regard, they argue that his belligerent attitude and conduct as evidenced by
his refusal of a direct order from G. Martinelli to hang a door in a elevator
room coupled with the issues discussed in the D’Andrea and Beckers letters and
the racial slur provide legitimate nondiscriminatory reasons for the discharge.
While I found
that A. Martinelli engaged in 8(a)(1) conduct by creating the impression that
employees union activities were under surveillance, I am not persuaded that
Long was terminated because of his protected activities.
In this regard,
I note that the General Counsel did not allege in the complaint that the
termination was in any way related to the filing of the overtime complaint with
the Pennsylvania Department of Labor despite the fact that the complaint was
lodged on behalf of Long and other employees.
Moreover, the General Counsel did not allege the remarks of G.
Martinelli that this was “union rules or union shit” as independent 8(a)(1)
conduct.
The evidence
conclusively shows that the decision to terminate Long was independently made
by A. Martinelli on January 26, which was prior to the time that Long revealed
his union affiliation.[5] In this regard, A. Martinelli made the
termination decision in a telephone conversation with his financial consultant
on January 26, immediately after he completed another telephone conversation
with Beckers that came on the heels of an earlier conversation with D’Andrea
that involved repeated inappropriate conduct by Long.[6] While Long and others might believe that the
conduct relied upon by A. Martinelli was exaggerated, the bottom line is that
the termination was not based on Long’s protected conduct as neither A. Martinelli
or any employee learned of the conduct until January 30, a period of time after
the decision had been made to discharge Long.
Moreover, I note
and credit the testimony of A. Martinelli that his family has a long history of
union membership and allegiance. Indeed,
his father, older brother, and himself are or had been members of the
Carpenters Union. Additionally, I note
that G. Martinelli previously was a member of the Teamsters Union and that when
A. Martinelli hired employees Velasquez, Cordenos, and Grosso, he was aware
that they were all active union members.
Thus, I do not attribute any union animus toward A. Martinelli when he
effectuated Long’s discharge for legitimate nondiscriminatory reasons.
Accordingly, I
find that Long was not terminated because of his union support and activity and
recommend that this allegation of the complaint be dismissed.[7]
Conclusions of Law
1. Respondent is
an employer engaged in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. The
3. Respondent
violated Section 8(a)(1) of the Act when it created the impression that
employees’ union activities were under surveillance.
4. Respondent
did not violate Section 8(a)(1) and (3) of the Act when it discharged its
employee Michael Long.
Remedy
Having found
that the Respondent has engaged in certain unfair labor practices, I find that
it must be ordered to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
On these
findings of fact and conclusions of law and on the entire record, I issue the
following recommended[8]
ORDER
The Respondent,
Martinelli Interior Construction Company, Inc.,
1. Cease and
desist from
(a) Creating the
impression that employees union activities were under surveillance.
(b) In any other
manner interfering with, restraining, or coercing employees in the exercise of
rights guaranteed them by Section 7 of the Act.
2. Take the
following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14
days after service by the Region, post at its facility in
(b) 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
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 create the impression that employees’ union activities were
under surveillance.
We will not in any other manner interfere with, restrain, or coerce our
employees in the exercise of their Section 7 rights protected by the Act.
Martinelli Interior Construction Company, Inc.