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,
RCC Fabricators, Inc. and Metropolitan Regional Council of Carpenters, Eastern Pennsylvania,
State of
RCC Fabricators, Inc. and Piledriver’s Local 454 a/w Metropolitan Regional Council of Carpenters,
Eastern Pennsylvania, State of Delaware and Eastern Shore of Maryland and Construction and General Laborers Union Local 172 of South Jersey. Cases 4–CA–31757, 4–RC–20569, and 4–RC–20572
June 9, 2008
DECISION, ORDER, AND CERTIFICATION
OF REPRESENTATIVE
By Chairman Schaumber and Member Liebman
On October 23, 2003, Administrative Law Judge Paul Buxbaum issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel filed an answer, and the Respondent filed a reply. On September 20, 2006, the National Labor Relations Board remanded the case to the judge for further consideration in light of the Board’s decisions in Oakwood Healthcare, Inc., 348 NLRB No. 37 (2006), Croft Metals, Inc., 348 NLRB No. 38 (2006), and Golden Crest Healthcare Center, 348 NLRB No. 39 (2006). On January 30, 2007, Judge Buxbaum issued the attached supplemental decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief.
The National Labor
Relations Board has considered the decision, the supplemental decision, and the
record in light of the exceptions and briefs,1
and has decided to affirm the judge’s rulings,2
findings,3 and conclusions as modified, to adopt
the recommended Order as modified below, and to issue a certification of
representative.4
We affirm the
judge’s finding that Foremen Ronald Earley and James Phillips were statutory
supervisors based on the judge’s finding that they exercised independent
judgment when assigning, and effectively recommending the assignment of,
employees to departments and significant overall tasks. In light of that finding, we do not pass on
the judge’s further finding that they possessed the power to discipline and
effectively recommend discipline, and his alternative finding that foreman
Phillips was the Respondent’s agent. In
addition, we affirm the judge’s finding that Phillips unlawfully interrogated
employees about a union meeting; however, we reverse the judge and dismiss the
allegation that Phillips’ questions about the union meeting created the
impression of surveillance. Finally,
because of their supervisory status, the challenges to Earley’s and Phillips’
ballots are sustained. Accordingly, we
shall issue a certification of representation.
i. supervisory status
The Respondent
manufactures railroad equipment and structural steel components in a plant in
ii. the 8(a)(1) allegations
On the evening of
October 9, 2002, most of the Respondent’s employees met with union
representatives in a local pizza parlor.
The following morning, as several employees, including Phillips and
Earley, gathered in the breakroom before work, an employee asked Phillips why
he was not at the meeting the night before.
Phillips responded that he did not know about it and asked the other
employees why he wasn’t invited. As part
of the discussion, he also asked who attended the meeting and what happened
there. In addition, the evidence shows
that, on separate occasions during that day, Phillips raised the issue of the
union meeting individually with employees Pohubka and Iannaco and asked about
the meeting, who was there, and what was said.
We agree with the judge that Phillips unlawfully interrogated Pohubka
and Iannaco in these individual conversations.6
The judge further
found that Phillips’ interrogation of Pohubka and Iannaco created an impression
of surveillance. We disagree. The undisputed evidence shows that Phillips
did not know about the meeting beforehand, but rather learned about it the next
morning during a breakroom conversation with several employees, including
Iannaco, before work. Phillips testified
that the meeting was a topic of discussion around the plant during the
day. Under these circumstances, we do
not find that Phillips’ questions to Pohubka or Iannaco would cause them to
reasonably assume that their union activities had been placed under
surveillance. Park ‘N Fly, Inc., 349 NLRB No. 16, slip op. at 2 (2007). We therefore reverse the judge and dismiss
this allegation.
amended conclusion of law
We modify the
judge’s Conclusions of Law by deleting paragraph 4 and renumbering the
subsequent paragraph.
ORDER
The National Labor
Relations Board adopts the recommended Order of the administrative law judge as
modified below and orders that the Respondent,
RCC Fabricators, Inc.,
1. Delete paragraph 1(b)
of the judge’s recommended Order and reletter the
subsequent tparagraph. 2. Substitute the attached notice for that of the
administrative law judge.
CERTIFICATION OF REPRESENTATIVE
It is certified that a majority of the valid
ballots have been cast for Piledrivers Local 454 a/w Metropolitan Regional
Council of Carpenters, Eastern Pennsylvania, State of
All full time Layout Men, Machinists, Mechanics, Shop
Laborers, Welders, and Welders/Fitters employed by the Employer at its
Dated,
___________________________________
Peter C. Schaumber, Chairman
_
Wilma B. Liebman, Member
(Seal) National Labor
Relations Board
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 coercively question you about your union support and activities
or the union support and activities of other employees.
We will not in any like or related manner interfere with, restrain, or coerce
you in the exercise of the rights guaranteed you by Federal labor law.
RCC Fabricators, Inc.
Henry R. Protas, Esq. and Ann
Marie Cummins, Esq., for the General Counsel.
John H. Widman, Esq. and Amy Niedzalkoski, Esq., of
Richard C. McNeill Jr., Esq., of
DECISION
Statement of the Case
Paul Buxbaum, Administrative Law
Judge. This case was tried in
On
October 25, 2002, the Metropolitan Regional Council of Carpenters, Eastern
Pennsylvania, State of
A
representation election was held on November 21, 2002. Sixteen votes were cast.
Six votes favored the Carpenters, five votes were against any union representation,
and no votes were cast in favor of the Laborers. Five ballots were challenged,
a potentially determinative number. On March 6, 2003, the Regional Director
issued an order consolidating the ballot challenges and the unfair labor
practice allegations and scheduling a hearing.
The
General Counsel alleges that an admitted supervisor told an employee that the
Company would close if the employees selected a union as their bargaining representative.
It is also alleged that a foreman interrogated employees regarding their union
activities and created an impression that union activities were under employer
surveillance. That foreman is alleged to be a supervisor and agent of the
Company. Finally, the General Counsel contends that the Company discharged an
employee, Daniel Pohubka, because of his involvement in union activities. The
Company filed an answer, denying the material allegations of the complaint,
including the contention that the foreman was a supervisor and agent.
Regarding
the representation election, the Board agent challenged three ballots since the
names of the prospective voters were not contained on the Excelsior list of voters.3 One of these prospective voters is Pohubka. His
eligibility depends on a resolution of the unfair labor practice allegation
that he was wrongfully terminated from employment due to his union activities.
The remaining two prospective voters challenged by the Board agent were
employees who were laid off prior to the election. The
As
described in detail in the decision that follows, I conclude that the General
Counsel has failed to prove that a supervisor threatened closure of the Company
in the event the employees elected union representation. I further find that
the foreman, a supervisor and agent of the Company, did unlawfully interrogate
employees and create an impression that their union activities were under
surveillance. I also conclude that, while the General Counsel met its initial
burden regarding the discharge of Pohubka, the Company established that he
would have been discharged regardless of his union sympathies and activities.
It follows that Pohubka’s ballot in the representation election was properly subject
to challenge. By the same token, I find that the remaining four ballot
challenges should be sustained since the evidence establishes that the laid-off
employees did not have any reasonable expectancy of return within the
foreseeable future and that the two shop foremen were supervisors within the
meaning of the Act.
Before
detailing my findings of fact, I must address preliminary matters regarding the
state of the record. As is virtually inevitable, there are errors in the
transcription of the testimony. Those significant errors involving testimony
given on April 8 and 10 were corrected on the record during the second
portion of the trial conducted in May. (Tr. 463–465.) Several errors relating
to the testimony on May 15 require correction. The witness was actually asked
if Pohubka often “didn’t” punch in on time. (Tr. 543, l. 10.) The witness
testifies that he observed Pohubka “wandering.”4 (Tr.
580, l. 14.) Three other errors can be
seen in a more lighthearted vein. The Company’s comptroller is reported to have
testified that he was a “beam counter.” (Tr. 609, l. 9–10.) This would be
logical given the Company’s involvement in the structural steel industry.
Nevertheless, in referring to his duties as financial analyst, he actually said
he was a “bean counter.” (Tr. 670, l.
13.) Counsel for the
On June 5,
2003, the Company filed a motion to reopen the record and admit newly discovered
evidence. This evidence consists of a decision of the Appeal Tribunal of the
State of New Jersey Department of Labor regarding the disposition of Pohubka’s
claim for unemployment compensation benefits. On June 11, 2003, counsel for the
Counsel
for the
[A]ny tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
Federal Rules of Evidence, Rule 401. As a result, I attach no significance to the Company’s failure to mention the pending unemployment case during the trial of this matter.
The
Company has filed an affidavit from its comptroller, Frank Santos, indicating
that he received the decision of the Appeals Tribunal upon returning to his
office after attendance at the final day of trial in this case on May 15, 2003.
The Appeals Tribunal decision states that it was mailed to the parties on May
13, 2003. This is entirely consistent with
I must next address the question of whether the Appeals Tribunal
decision is relevant to the issues under consideration. Both counsel for the
We have long held that [unemployment compensation decisions by state departments of labor], although not controlling as to the findings of fact or conclusions of law contained therein, have some probative value and are admissible into evidence.
Finally, I
note that, on June 19, 2003, the General Counsel filed an errata to counsel for
the General Counsel’s brief to the administrative law judge. This contains only
technical corrections. No party has objected to this submission, and I grant
leave to file this document.
On the
entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Company and
the oral closing argument presented by counsel for the
Findings of Fact
i. jurisdiction
The
Company, a corporation, manufactures railroad equipment and structural steel
components at its facility in
ii. alleged unfair labor practices
A. The Factual Background
Alphonso Daloisio Jr. is the owner of RCC Fabricators, Inc. The firm’s acronym is an abbreviation of “Railroad Construction Company.” Daloisio’s family has a long history in this field of endeavor. His grandfather started the original company in 1926, with exclusive focus on the railroad industry. Over time, the nature of the business expanded to include road, bridge, and site work, as well as, building construction. In 2000, the original company was divided into a number of separate entities. Historically, these companies have had work forces represented by a variety of unions. Daloisio testified that the family of companies currently has 27 agreements with unions, including the operators, teamsters, iron workers, laborers, dock builders, and carpenters.
Although RCC Fabricators, Inc. has a venerable corporate
ancestry; the Company itself is quite new. Its immediate predecessor was a
corporation known as RCC Materials and Equipment, located in
A suitable facility for the Company was purchased. Located
in
(Tr. 42.) As the autumn of 2001 progressed, additional employees were hired, including principal management officers. Among them was Dave Puza, the Company’s vice president. He testified that one of his initial impressions was a concern that the Company lacked formal disciplinary procedures for employees. He believed that the absence of such procedures was a cause of developing disciplinary problems. As a result, he directed that disciplinary forms be obtained from other components of the RCC family of companies.
In November 2001, operations began. Originally, these consisted
of the cleaning and painting of the shop facility. At this time, Phillips was appointed
as a foreman. He was told that he “would be working, as well.” (Tr. 403.) The
hiring process also continued. In December, Ronald Earley was hired as a welder
and fitter. He had extensive prior experience, having risen from laborer to
foreman in the defunct company that had been the prior occupant of the
By January 2002, the Company was fully operational and was manufacturing its products. The first billing was generated in that month. At the same time, the Company implemented use of the disciplinary form provided by the human resource manager of the RCC family of companies.
In the following month, Daniel Pohubka, another important participant in the events involved in this case, was hired. His job was as a laborer and the duties consisted of painting, sweeping, and, as he put it, “a little welding” and “whatever [else] I was told to do.” (Tr. 169.)
At the approximate time that Pohubka began his employment
with the Company, the question of union representation for the work force first
arose. Daloisio testified that he serves as co-chair of Project Build, a
cooperative union-management committee that resolves jurisdictional disputes
among unions in
[W]hy don’t you give us a year or two and we’ll definitely,
we’ll talk about it, there’s no question that if the
co-workers7
are interested[,] that we’d be interested.
(Tr. 44.) Daloisio indicated that subsequent to this conversation, D’Antonio would occasionally ask him about the status of the Company.
Pohubka testified that in March 2002, he began speaking to his fellow employees regarding the question of union representation. He reported that the idea for such representation came to him after employees of another RCC company took him to task, telling him that he was doing union work and should be getting paid union wages. Pohubka asserts that in the following month he asked Baer why there was no union at the plant and Baer responded by telling him that Daloisio would “shut down the shop” if a union came in. (Tr. 219.) Baer flatly denies any such conversation.
There is general agreement that Pohubka raised a peripheral issue regarding union representation during a meeting in April. Puza testified that during the meeting Pohubka asked why the employees were not being paid union wages when the material they were fabricating was being used on union contract jobs. Puza responded by noting that the contracts were prevailing wage contracts and that the Company was complying with this requirement. Puza opined that this response appeared to satisfy Pohubka, “because I was never asked about it again.” (Tr. 640.)
On July 2, 2002, Pohubka became involved in an event that resulted in his first formal disciplinary sanction. Foreman Phillips discovered Pohubka and another employee, Shawn Mace, sleeping in the parts room 10 minutes after the conclusion of an employee breaktime. Phillips testified that he told both men that they owed the Company 10 minutes of work time. He told both men to make up the 10 minutes and then “forget about it.” (Tr. 482.) Pohubka refused to make up the lost time and told Phillips he was being “anal” about the episode.8 By contrast, Mace readily agreed to make up the time.
Phillips instructed Pohubka to return to the welding job that he had been performing. Pohubka testified that approximately 1 hour later, he became angry that he was being required to perform a welder’s duties but was not being compensated at a welder’s level of pay. He took this complaint to Phillips. Pohubka conceded that he behaved poorly, intentionally dropping a 30-pound piece of metal and cursing at Phillips.9 Phillips ordered Pohubka to report to Baer’s office. Pohubka was given formal notice that he was being suspended for 3 days. The suspension was memorialized and explained on a written “Corrective Action Notice” form. The nature of the misconduct was characterized as “insubordination” and “inadequate work performance.” Pohubka was warned that he must improve both his attitude and his performance. (GC Exh. 4, p. 24.)
As mentioned, another employee, Mace, was discovered sleeping in the parts room at the same time as Pohubka. The corrective action notice issued to Mace is significantly different from Pohubka’s. The level of discipline is listed as a verbal warning that Mace must be “more aware of scheduled break time.” In addition, Baer added a comment that Mace deserved commendation for “the manner in which he handled this incident.” (GC Exh. 4, p. 14.)
In his testimony regarding these events, Baer evinced a
bit of difficulty in articulating his reasoning underlying Pohubka’s
suspension. At first, he contended that the suspension was imposed for the
offense of sleeping on work time. Later, he testified that “[a]ttitude was the
major reason” for the suspension. (Tr. 410.) Interestingly, Pohubka chose the
same word to describe his conduct on this date, testifying that he gave his supervisors
“attitude” and that he “yelled back at them.” (Tr. 201.) I conclude that the
best explanation for Pohubka’s suspension is found in the reasons enumerated on
the contemporaneously prepared corrective action notice, particularly the offense
of insubordination. Emphasis on Pohubka’s poor attitude as demonstrated by his
insubordinate refusal to make up the lost time and his cursing at his foreman
satisfactorily account for the difference in severity and tone between his discipline
and that issued to Mace.10
In the following months, the new company continued to experience
a variety of growing pains.
In early October 2002, the first concrete action was taken
regarding union representation for the Company’s employees. One of those
employees, Brian VanNortwick, contacted the Carpenter’s
VanNortwick took the next step by scheduling a meeting between
interested employees and representatives of the
There is no evidence to suggest that company officials had any advance notice that the Carpenters were meeting with employees. On the other hand, it is clear that immediately after the meeting the Company learned about it from a number of sources. Phillips testified that three employees told him about it either later that evening or the following day. Indeed, he reported that “lots of