Conomos Painting Co.

National Labor Relations Board - Board Decisions

Dec 20, 1965

156 N.L.R.B. 179 (N.L.R.B. 1965)

CONOMOS PAINTING COMPANY 179
by means proscribed by Section 8(b) (4) (D) of the Act, to force or
require the Employer to assign the above work to ironworkers who are
represented by it.
3. Within 10 days from the date of this Decision and Determination
of Dispute, Iron Workers Local No. 155, International Association of
Bridge, Structural and Ornamental Iron Workers, AFL-CIO, shall
notify the Regional Director for Region 20, in writing, whether it will
refrain from forcing or requiring Valley Foundry & Machine Works,
Inc., by means proscribed by Section 8(b) (4) (D), to assign the work
in dispute in a manner inconsistent with the above determination.
Conomos Painting Company and Gary Nichols, Kenneth
Yahrmatter
Painters Local Union No . 8, Brotherhood of Painters , Decorators
and Paperhangers of America , AFL-CIO and Gary Nichols.
Cases Nos. 25-CA-2131 and ?5-CB-591. December 20, 1965
DECISION AND ORDER
On October 1, 1965, Trial Examiner Thomas A. Ricci issued his
Decision in the above-entitled proceeding, finding that Respondents
had not engaged in any unfair labor practices alleged in the complaint
and recommending that the complaint be dismissed in its entirety, as
set forth in the attached Trial Examiner's Decision. Thereafter, the
General Counsel filed exceptions to the Decision and a supporting brief,
and the Respondents filed answering briefs in support of the Trial
Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [-Members Fanning, Brown, and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and funds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision," the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
[The Board dismissed the complaint.]
"We hereby note and correct the following inadvertent errors in the Trial Examiner's
Decision : Under his finding of facts in section 4 , substitute "senior to W Lambert" for
"Junior to W. Lambert," and "senior to Heiman and Tsankaris" for "junior to Heiman and
Tsankaris."
156 NLRB No. 24.
217-919-GO-vol. 156-13
1S0 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding , with all parties represented , was heard before Trial Examiner
Thomas A. Ricci in Chicago, Illinois, on June 23, 24 , and 25, 1965, on consolidated
complaint of the General Counsel and answers by Conomos Painting Company, herein
called the Company Respondent or the Company , and by Painters Local Union No. 8,
Brotherhood of Painters , Decorators and Paperhangers of America , AFL-CIO,
herein called the Union Respondent or the Union. The issues litigated are whether
the Union has violated Section 8 (b)(1) (A) and 8(b)(2) of the Act, and whether
the Company has violated Section 8 ( a) (3) and ( 1). Briefs were filed after the close
of the hearing by all parties . The General Counsel also filed a motion to correct
the transcript in a number of details ; no objections were received from either Respond-
ent concerning this motion . Except for a proposed change in the testimony of the'
witness Yahrmatter, discussed below, the motion is granted and the motion docu-
ment is hereby made a part of the record as a Trial Examiner 's exhibit.
Upon the entire record and from my observation of the witnesses , I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Conomos Painting Company, a Pennsylvania corporation with its principal office
in Pittsburgh, is engaged in the business of general painting throughout the United
States; at the time of the events here involved it was working on a large project at
Portage, Indiana. During the past year, a representative period, the Company per-
formed services valued in excess of $50,000 in States other than the State of Pennsyl-
vania. During the same period the Company purchased, transferred, and delivered
to its various projects throughout the country goods and materials valued in excess
of $50,000 which were transported to such locations directly from States other than the
one in which the projects or locations were located. I find that the Respondent is
engaged in commerce within the meaning of the Act, and that it will effectuate the
policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Painters Local Union No. 8, Brotherhood of Painters, Decorators and Paper-
hangers of America, AFL-CIO, is a labor organization within the meaning of Section
2(5) of the Act.
HI. THE ALLEGED UNFAIR LABOR PRACTICES
The Question
Yahrmatter and Nichols are painters who have always been members in good
standing in Local Union No. 8; in January 1965 they were employed by the Conomos
Company on a building project at Portage, Indiana, where Bethlehem Steel was erect-
ing a large new facility. For a year the question of whether the painters should or
should not do overtime work for time and a half instead of double time had been a
recurring source of irritation, among the employees themselves, between them and
company officials, within the Union with members disagreeing with their spokesmen,
and even, apparently, setting some union officers against others. The need for painters
fluctuated on the project as the stages of construction varied, and, in the normal course
of business, the Company laid off about 10 men in mid-January from the then com-
plement of approximately 50.
Yahrmatter and Nichols were among those who believed it wrong to work overtime
for less than double time, although they had worked at the lower rate throughout their
employment. Twice during the 13- or 14-month period between the start of the job
and the end of 1964, group sentiment among the painters had caused union agents
to ask the Company to either pay double time or discontinue overtime entirely, and
in each instance the men reverted to a straight 40-hour week. The last such action
occurred on or about the first of January 1965; no overtime was performed at all
between that date and the time of the hearing in June.
The complaint alleges that the Union, in resentment against these two men for hav-
ing been the instigators in bringing about discontinuance of overtime altogether,
caused the Company to select them for inclusion among the group of men that had to
CONOMOS PAINTING COMPANY 181
be laid off in January.., The Company in turn is charged with having discriminated
against them in their employment by selecting them because the Union so commanded.
On the asserted grounds that the efforts of the men to win double time pay in place of
time and a half was a form of union or concerted activity displeasing to the "Union,"
or the "union officers," or at least "certain" union officers, the Union Respondent is'
said to have caused illegal discrimination in violation of Section 8(a)(3) of the Act,'
and therefore itself to have committed an unfair labor practice in violation of Section'
8(b)(2), and the Company, because it acted pursuant to such pressure, to have vio-
lated Section 8(a) (3).
The General Counsel's Theory of Proof; The Nature of the Evidence
This is strictly a circumstantial evidence type of case and the General Counsel
literally conceded the fact at the hearing. There is no testimony, or other form of
direct proof, indicating that any agent or person on behalf of the Union communicated
to management a desire or demand that Yahrmatter and Nichols be laid off. Pur-
suant to a prehearing motion by the Union the General Counsel was ordered by a
Trial Examiner to disclose, among other things, the identity of the union agents who
acted on its behalf, and to what persons, on behalf of the Company, they spoke. In
response the General Counsel stated this information was unknown to him, and that
at best he could only say the business agent, or the steward, "or persons unknown,"
committed the deed for which the Union is now called to account. The sole question
therefore is one of fact, and the case as a whole must stand or fall against the long-
standing test laid down in N.L.R.B. v. Glen Raven Knitting Mills, Inc., 235 F. 2d
413 (C.A. 4). Does the preponderance of the substantial evidence on the record in
its entirety support the essential allegation of the complaint.
Like all records on which it is argued guilt must be inferred, this too contains
certain facts which lend support to the overall conclusion urged by the complaint, and
others either in themselves tending to negate the inference or otherwise weakening the
persuasiveness of the supporting props upon which the Government's case rests. And,
as always, an out-of-context appraisal of only those facts selected by either side of
the argument-as each presents them in its brief-would be not only misleading but
unfair. Some statements made on the record are more revealing than others; some,
although perhaps literally relevant, are of such little weight either way as not to
warrant detailed repetition here, else the report must be as long as the record. The
decision below is based upon all of the record, although only the truly salient and
significant facts justify discussion.
Facts
The following are the principal factual assertions urged as requiring a finding of
illegal discharge: (1) Yahrmatter and Nichols had long been outspoken critics of
the Union's passive acquiescence in the time-and-a=half arrangement; (2) they were
the moving force leading to discontinuance of overtime work at the end of December;
(3) the Company did not select them for layoff strictly in accordance with hiring
seniority; and (4) unlike some others who were released, Yahrmatter and Nichols
were not called back to work by the Company.
1. Overtime was performed at time and a half from the start of the project late in
1963. Both Yahrmatter and Nichols started work on March 15, 1964, both quit for
more desirable employment-Nichols in April and Yahrmatter in July-and both were
rehired, the former in October and the latter in September. They worked overtime
like all others throughout their employment.
Early in May there developed a general resentment among the painters against
working for less than double time and in consequence all overtime was discontinued.
Yahrmatter testified simply that "the men" decided against the old practice, and
directed Steward Davis to tell the Company of their decision. Another painter,
Robert Cox, testified that Business Agent Stevens was present when the men made
this decision and that Sevens only said "If a 100% of the men wanted to work for
time and a half, he would ask for it," else it must be discontinued. Stevens denied
telling the Company it was for the men to decide one way or the other. These con-
flicts in testimony are of no significance now; Stevens, like all witnesses for the
Respondents, were determined not to help the General Counsel prove a case. The
business agent, like the president of Local Union No. 8, also must have been in the
anomalous position of trying to protect an area contract calling for double time while
simultaneously blinking at wholesale disregard of the provision by the Conomos
182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company.' In any event , all that really matters so far as this proceeding is concerned,
is that time and a half had been paid, the employees decided against it, and the Union,
one way or another, supported those against the Company, and all overtime was dis-
continued. According to the. General Counsel the fact that Yahrmatter was even
at that time opposed to the arrangement constitutes part of the proof that he was laid
off about a year later for that reason. His attitude then carries little, if any, weight on
the main argument, because he was only one in the large group which took the same
action and all of whom appear to have been equally vociferous. If the "Union," or
one or two of its agents, in fact preferred to continue the old arrangement, their con-
sequent resentment must have been directed against at least a majority of the painters,
for there is indication that the men formally voted on the matter.
2. In a matter of days, at most a few weeks, overtime work was resumed on the old
basis, with an official of the Company promising 7 days of work each week as induce-
ment. He did not keep the promise, but nothing further happened until the end of
the year. In December again the painters started to grumble because the men were
receiving less than double time; as a result the Union called a special meeting for
those members working on this project. The purpose was to discuss this sole question.
It is not clear as to when the men met : Business Agent Stevens said it was sometime
in January, Yahrmatter and Heiman placed it on January 6, Robert Cox testified it
occurred "the latter part of December, and the first part of January-I don't recall."
Meler, the union president, recalled it as just before Christmas, and Nichols, one of
the Charging Parties, said it was December 30. There were 15 to 20 painters present,
plus all 3 of the local union officers. While the precise date may not be of critical
significance, the vagueness in the recollections of so many witnesses on what should
be a simple and objective matter illustrates meaningfully the general unreliability of
much of the testimony throughout the hearing.
The witnesses were equally elusive as to exactly what was said at the meeting, or just
who took clear and definitive positions on the big question. From the total testimony,
however, certain facts are clear. President Meler presided and announced he knew
the men were receiving only time and a half, he had heard there was dissatisfaction
because of it, and he thought the matter should be openly discussed. In the course of
the general talk Yahrmatter and Nichols stated their view that the men should not
work at that rate, that there was a contract which was not being observed, that con-
tinuing the practice in this instance would encourage other employers to do the same
with consequent deterioration of working conditions. Steward Davis expressed him-
self unequivocally in favor of the time and a half rate, arguing that insistence upon
double time would lose overtime entirely for the men and would even keep other
companies from permitting it at all. Business Agent Stevens professed ignorance of
what was going on, a very unlikely state of affairs in view of his activities at the job-
site in the past and the great number of painters who had so long received the limited
rate. It is also clear that in the end Meler announced his decision that overtime would
no longer be permitted at that rate, that he instructed his subordinates to so advise the
Company, and that this was done. The last day of overtime work was December 19,
1964. It was not until sometime in May of 1965, and then only on very limited jobs
at the express request of Bethlehem Steel and with that company paying the full bill,
that a small amount of overtime work was performed at double time.
The basic contention that the criticism voiced by Yahrmatter and Nichols at this
meeting is the reason why they were chosen, by both the Union and the Company, for
retribution, is weakened by a more significant fact, as to which there can be no dis-
pute. Other painters took the same position, spoke out in criticism of the union
agents, and were as much a moving force in eventually causing loss of all overtime
work as these two particular men. Yahrmatter testified that Milam, Robert Cox,
Lester LeMastus and Robert Coleman spoke up to oppose time and a half as did
Yahrmatter and Nichols. Robert Cox, called after Yahrmatter, said there was much
confusion, everybody talking at once, but he "did not open my mouth." But Yahr-
matter was called by the General Counsel to support his own charge and I must
believe him on this point. Yahrmatter also said that while some of the men remained
i Conomos, out of Pittsburgh, takes jobs throughout the country ; It had no signed
contract with Local Union No. 8 here, but, as is its custom, complied with union condi-
tions of employment when it arrived. There was much disagreement among the witnesses
as to precisely what is the prevailing union practice in this area ; the current contract
was not placed in evidence. Without doubt the Union-including its President Meler-
knew what was going at this project, for at times there were as many as 150 painters at
work, and overtime at this rate was performed almost throughout the entire year of
1964. It is only a play on words to say this was not a practice. What the record does
show is that the Union's practice is to approve of time and a half if the painters on a
particular project are satisfied with the arrangement.
CONOMOS PAINTING COMPANY 183
neutral , only one, William Cox, urged continuance of the established rate. If any-
thing, Milam, an ordinary painter, was more persistent than either of the two litigants
in his criticism. When Business Agent Stevens claimed he did not know what was
going on, Milam gave him the lie by recalling that he himself had told Stevens in the
beginning , when earlier in the year the same question had arisen and overtime been
discontinued , and that it was he, Milam, who had been responsible for the discon-
tinuance . William Cox corroborated Yahrmatter that only one man spoke in favor
of time and a half, and added that "90 percent" of the painters present spoke up in
favor of double time. And Meler, the president, recalled that Yahrmatter and
Nichols spoke no more than did a number of others, and that in the end "the men
agreed in numbers that were present that this would be discontinued."
3. The general layoff took place on the afternoon of January 20, and that evening
the regular monthly meeting of the Union was held; the laid off members were there.
There was talk of the layoff, some painters voiced the possibility of suit against the
Company to compel retroactive payment of the half-time differential between time
and a half and double time for all overtime performed in the past, and again the
disagreement between Yahrmatter and/or Nichols, together with other employees, on
the one hand, and union agents on the other, came to the fore. As in the case of the
earlier special meeting, the testimony is vague and general as to what was said there
that may be pertinent to the issue of this proceeding. Regardless of whatever else
may have been said, Yahrmatter admitted at the hearing that although all the union
officers were present, neither he nor Nichols accused any of them of having caused
their discharge. Nichols agreed with this testimony and added he did not even ask
why he had been released. He did say that sometime during the meeting he expressed
the opinion Yahrmatter and he had been laid off "because of the comments we made
at the special meeting in early December ... because we made an attempt to collect
something due us, something about the backpay, and the time and a half thing ...."
Some of the men gathered at a nearby tavern for beer following the meeting.
After some drinking, Davis came to the tavern and had words with Yahrmatter, the
two almost coming to blows. Yahrmatter told him he "stank" as a steward, and in
reply, according to Yahrmatter, Davis "told me if my mouth was as big as I was, I
would still have my job. I said the reason that you've got your job ... he said, `I'm
going to get my book, and have you fired by every contractor in the area.' " 2
At this point there can be no question but that between these two men there existed
a very deep dislike, and that in some fashion the discussion during the meeting a few
minutes before had included sharp words between them. Davis did threaten to hurt
Yahrmatter in his work opportunities, in the future at least, although what he meant
by "get your book" remains ambiguous; it could as well mean having him expelled
from the Union as it might reveal an intent to cause illegal discrimination to a union
member. Certainly whatever Davis said in- the heat of the argument, so poorly
remembered and quoted by Yahrmatter, falls far short of a- clear admission of
personal responsibility for what the employer had done that day. The men were
reveling in deriding each other; Davis said the other had to suffer because of his "big
mouth," a phrase which points to another possibility lurking behind much of the
testimony in the entire record. Resentful of the activities of some employees in
refusing to work at time and a half, the Company way well have seized the oppor-
tunity of the economic layoff to get rid of them quite independently of whatever the
Union or any of its agents may have wished.
4. During the afternoon of January 20, Roles, a general foreman, appeared at the
project with a slip of paper on which were listed a number of names and told Steward
Davis these men were to be laid off. Yahrmatter and Nichols were included, and the
fact that in this case strict seniority was not followed is urged as further proof that
2 Davis did not appear as a witness. In his motion to correct the transcript, the Gen-
eral Counsel would alter this testimony by Yahrmatter to read as follow:
So he told me if I was as big as my mouth I would still have my job, the reason you
got fired was because you were after my job. He said "I'm going to get your book,
and have you fired by every contractor in the area."
Nichols was present at the time and he testified that to his knowledge Davis did not
"say to Yahrmatter you were fired from the job for any reason," but did make "some
other comments to the effect he would still have a job if he didn't have a big mouth."
In view of the General Counsel's initial announcement that this was essentially a cir-
cumstantial evidence case, I was particularly attentive throughout the hearing to all
testimony touching upon any statements that may have been made by agents of either
Respondents. I am certain Yahrmatter did not testify as the General Counsel asserts in
his motion, and I therefore deny the motion to alter the transcript in this critical and
substantial way.
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union was responsible for their selection. Here again the record is utterly con-
fused and it is almost impossible to say exactly how many men were released and what
their precise hiring dates were. Throughout the hearing the witnesses were sure a slip
of paper with about 10 names was passed around on the 20th, and that as the men
listed there were located they were sent home. Their testimony supports that of
Paul Bon, the general superintendent, who testified that around the 15th, because of
reduced work, he decided a layoff was necessary, listed the 10 men for release, and
then instructed his subordinates to carry out the reduction in force on the 20th.
At the very end of the hearing the Company produced, onsubpena of the General
Counsel, the original payroll records, and, without then commenting upon their
significance, the General Counsel placed them into evidence in toto. They were
analyzed later, and in the General Counsel's brief there is present an out of context,
selected picture reducing the total layoff activity, and eliminating other pertinent facts
which weakened the seniority argument.
Neither the oral testimony nor any of the records prove the day of hiring of the
employees; all that appears is the week during which they came, or during which they
left. Nor is there any probative evidence of the relative skill and experience of the
men; passing phrases of opinion as to one or two individuals by "pushers," or straw
bosses, or even by clear supervisors, in some instances describe particular painters, but
serve not at all to evaluate any of them in a relative sense.
The records show that about 40 men worked during January. Seven or eight who
arrived at the jobsite after Yahrmatter and Nichols, were "permanent" employees, had
worked in other cities and were going to other locations throughout the country for
the Company, and are always retained if at all possible. The General Counsel sees
nothing wrong in the Company having kept them in any event. As to the remaining
painters, they list as follows, so far as the record reveals seniority:
1964
Nov.
W. Lambert-------------------------------------------------- 29
Cease-------------------------------------------------------- 22
Kolega------------------------------------------------------ 22
LeMastus---------------------------------------------------- 15
Monroe----------------------------------------------------- 1
Heiman------------------------------------------------------ 1
Tsankaris----------------------------------------------------- 1
Schrader----------------------------------------------------- 1
Martin------------------------------------------------------ 1
Oct.
J. Davis----------------------------------------------------- 25
Coleman ----------------------------------------------------- 25
Nichols------------------------------------------------------ 25
Thomas------------------------------------------------------ 18
C. Lambert--------------------------------------------------- 18
Niferos------------------------------------------------------- 18
Splittsberger-------------------------------------------------- 4
W. Davis----------------------------------------------------- 4
Ele---------------------------------------------------------- 4
Sept.
Shiller------------------------------------------------------- 20
Yahrmatter--------------------------------------------------- 20
R. Cox------------------------------------------------------ 20
Of these, 11 ceased work in the middle of January, 4 leaving during the week ending
January 17 (Cease, Kolega, Martin, and Ele), and 7 the week ending January 24
(LeMastus, Monroe, Schrader, Coleman, Nichols, Yahrmatter, and Robert Cox).
The only rationale finding I can make, on this entire record, is that these were the 10
or 11 names Bon wrote down for release when, on January 15, he prepared the list
which later was seen by so many employees.3 I must believe that by the 20th, the
first four had already left of their own accord, or for whatever reason. There is no
other way in which I can accept the total testimony, unless it be to hold all of the
witnesses-both in favor and against the complaint-deliberately lied. There .is no
basis for such an approach.
8 Bon testified at random as names were thrown at him at the hearing. It was clear
he had no personal recollection of individuals worthy of note . In the course of his testi-
mony he said flatly he had scheduled Kolega, Cease , and Martin for discharge on the 20th.
CONOMOS PAINTING COMPANY 185
In his brief the General Counsel makes much of the fact that the slip of paper, on
which the general superintendent had listed the men to be laid off, was not produced;
he calls it the "mysterious lists" [sic] because the superintendent's earlier affidavit
shows an "s" after the word list. But there is no evidence on the record that there
was more than one slip of paper, the document was not shown to have been a regular
record of the Company, and there does not appear to have been any reason why the
Company should have preserved it at the time. Unless, of course, it is to be presumed
the Company was guilty and knew it! Perhaps it can be said the Respondents
deliberately refused to assist the General Counsel to prove a definitive case at the
hearing; a void cannot serve as positive support for any affirmative burden resting
upon the General Counsel in this type of situation. I find that the 11 men named
above were selected for layoff in consequence of a purely economic need.
At one point during the hearing the General Counsel skirted the idea that perhaps
the entire layoff was discriminatorily motivated, upon demand of the Union; he does
not pursue this theory in his brief. In any event in that case it would have to be
argued that all 11 painters were treated illegally, and all should have been included in
the complaint. The record would not support such an allegation, and the case reverts
to the theory that although the layoff was an economic one Yahrmatter and Nichols
were deliberately selected because they pushed the Union into insisting upon double
time and/or because they irked the union steward.
The overall inference of illegal motivation is not greatly strengthened by the fact
that the Respondent did not select Yahrmatter and Nichols on the basis of strict
seniority, and on that basis alone, because (1) the greater length of service of some
who were retained was extremely short, (2) others were also selected for layoff out
of seniority, and (3) there is no substantial evidence that the Company in this
instance departed from an established past seniority practice. All of the men laid
off were junior to W. Lambert, retained; four men laid off, other than Yahrmatter
and Nichols, were also junior to Heiman and Tsankaris, both retained; and R. Cox,
a very vocal agitator against time and a half, had the same seniority as Yahrmatter;
i.e., was senior to 11 men who stayed. Nichols started work the week of October 25;
Heiman and Tsankaris, called junior to him, had come the following week. For all
the record shows one may have started the last workday of one week and the others
the first day of the next. And there had never been a general layoff of this magni-
tude in the past. In scanning the company records after the close of the hearing, the
General Counsel discovered that during the week ending January 10, two men were
laid off, one who had worked less than I week and the other about a month, both
junior at the time. The only other occasion for multiple layoffs seems to have been
early in December, when four men were released; at that time at least two others
who had come later were retained. Such a limited and inconsistent record, consid-
red against a total complement of perhaps 50 painters, is not proof of any practice
r°specting seniority in layoffs.
5. Yahrmatter testified that Schoonover, one of the two general foremen, when
re,easing the men on January 20 said "he would call us back maybe if he needed us."
Nichols was less clear on whether there was a promise to recall made to anyone.
"Schoonover ... made a remark about a telephone called, I can't state positively, but
I believe he said something to the effect that he would call Yahrmatter. He wasn't
speaking to me, it must have been Yahrmatter." Nichols testified positively that he
was not told he would be recalled. Roles said all he Sold the men was to "keep in
touch" with him. Neither of these two men ever returned to ask for work, either
at the project or through the Union, although each heard later that the Company
had started to put men back to work again. Nichols found other employment 6 days
later; in Februa-y Yahrmatter started on other jobs within the jurisdiction of the
Respondent Local.
The Company hires indiscriminately when it needs local men; the word is passed
through the painters on the job to their friends outside men who apply are hired at
the gate, and the Company sometimes calls the union hall for help. This is the
traditional hiring practice in the construction industry by roving contractors like the
Respondent Company, and its representatives testified that on this project this was
company practice. The testimony offered by the General Counsel to offset the com-
pany witnesses does not warrant a contrary finding.
Further Testimony, Analysis and Conclusion
Agents of both Respondents disclaimed all allegations that it was the Union which
wanted Yahrmatter and Nichols to be laid off, or that the reason why they were
selected was to satisfy such a demand. Instead Bon, the highest officer of the Com-
pany at the project, explained that he chose the 10 men on the basis of their "relia-
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bility, dependability, capability and possibly if everything being equal the recently
hired." This complex phrase appears and reappears throughout Bon's testimony,
and in his earlier affidavit, in many variations; all it means is he claims to have
selected on the basis of his personal judgment of individual painters' craft skill,
cooperation in being available when needed, plus those ever-varying reactions that
make one employee more desirable than another to his superiors. The factors being
largely subjective or requiring a relative evalaution of all the painters on the job,
necessarily the Company could not prove definitively or mechanically its application
of this test throughout the layoff. Another supervisor in charge would probably
have decided on a different list of 10 men even applying Bon's test. The question
here is not, as the General Counsel argues, whether Bon correctly evaluated the men;
it is only whether, on the basis of the Government's evidence, plus the Respondents'
facts, plus Bon's exculpating testimony, an affirmative finding of illegal conduct is
warranted. I find that the evidence as a whole does not support the essential allega-
tion of the complaint and shall therefore recommend dismissal of the case as to both
Respondents.
Yahrmatter was only one of many painters who joined in the majority which
forced the union agents to commit themselves to double time for overtime work in
the beginning. When he and Nichols again disagreed with the steward and the busi-
ness agent at the end of the year at the special union meeting, again they were
included in what someone called "90 percent" of those present. Whatever the per-
centage others were equally outspoken; of those identified in the record some were
laid off, like Yahrmatter and Nichols, some were not. Why painters like Coleman,
LeMastus, and Robert Cox, who no doubt irritated Steward Davis and Business
Agent Stevens as much as anyone, and who were also laid off, are not named in the
complaint is not explained. More confusing to the entire case is Milam, according to
the testimony even more offensive to the Union at the special meeting; he was not
laid off at all. The significance of his retention cannot be avoided by the General
Counsel on the ground that Milani had greater seniority, for such explanation is
inconsistent with the general theory of the complaint that the very proof of illegal
motivation lies in the disregard of seniority. But all this shows that Yahrmatter and
Nichols simply were not singled out for special treatment. The same is true of the
seniority contention; this layoff was not shown to be substantially different from
anything in the past, and others were also released out of seniority turn. Yahrmatter
even said at the hearing that in his type of work "I know that seniority does not
replace ability. Its what he can do and what he can't do."
Yahrmatter did not like Davis, the steward, thought him to be a poor union agent
and told him so, at the special union meeting and at other times. He even tried t'
replace him in the steward's job. His opposition to the steward's stand on the ove -
time issue flared more than once and certainly Davis resented it. Animosity thls
shown would be an element supporting the inference of retaliation by causing c'cs-
charge. But Davis is not named as a respondent, a logical step if the case were 11in-
pointed to him in the complaint. "The Union" is said to have caused the ComonY
to choose Yahrmatter and Nichols. But the chief of the Union was President MeW'
and although he surely knew Conomos was paying only time and a half, and by his
silence necessarily did not object, there is no evidence whatever of personal animosity
flowing from him to either of the Charging Parties, nor indeed towards these mem-
bers of the Local as a group. In such a confused picture as to who, in the Union's
hierarchy, was in dispute with these two men, the total absence of any proof of
communication between the two Respondents on the entire subject assumes greater
meaning.
And finally t:.e two men said nothing, on the very evening of their discharge, when
the matter was discussed in full union meeting. There was talk of suing the Com-
pany for backpay, but no one even remotely suggested the Union, or any of its offi-
cers, were responsible. Some men were recalled later, and some not, but on
January ^0 all the painters knew was who had crossed the steward or the business
agent, and exactly what each man's seniority was.
More than once Nichols expressed the fear he would lose his job for speaking up
in favor of double time. At the special meeting, weeks before the mass layoff, he
voiced the opinion he "would possibly be fired for stating my opinions at this place,"
but Meler, the president, replied "he could not get fired on something like this for
something he said that night." On the afternoon of the layoff Nichols told Frank
Cole, a pusher, his discharge was "a lousy thing to do, just because I had opened my
mouth and said what I thought." He also told Steward Davis in the shanty "I was
laid off because of my remarks at the union meeting." There was considerable talk
at the time, and the General Counsel makes much of the fact neither the pusher nor
UNION FISH ' COMPANY 187
the steward bothered to answer Nichols respecting that particular remark. It is not
clear whether Nichols was accusing the Union or the Company; in any event the
ambiguous charge out of his mouth is hardly substantial evidence of guilt by the
Respondents.4
RECOMMENDED ORDER
Upon the basis of the foregoing findings and conclusions , it is hereby recommended
that the complaint be dismissed in its entirety.
* A number of painters are pushers , and are called supervisors by the General Counsel;
they are regular union members and were present at the various meetings . The General
Counsel relies upon their presence at such meetings and on statements of some of them
on the job as supporting proof that the Company knew what was going on in the Union
and therefore carried out the will of the Union . I find on the entire record that the
pushers are not supervisors within the meaning of the Act, but deem it pointless to
detail here the minutiae of testimony on this disputed issue . Even assuming the push-
ers were agents of the Company , my conclusion would be the same, for their participation
in the events adds little of substance to the case.
Joseph Busalacchi, Thomas Busalacchi , Mario Busalacchi and
Anthony T. Procopio, a partnership d/b/a Union Fish Com-
pany, ' Petitioner and Amalgamated Meat Cutters and Butcher
Workmen of North America, Local 229, AFL-CIO 2
Joseph Busalacchi, Thomas Busalacchi , Mario Busalacchi and
Anthony T. Procopio , a partnership d/b/a Union Fish Company
and Jeannette K. Liegel, Petitioner and Amalgamated Meat Cut-
ters and Butcher Workmen of North America , Local 229, AFL-
CIO. Cases Nos. 21-RM-1147 and 21-RD-744. December 20,1965
DECISION, ORDER, AND DIRECTION OF ELECTION
Upon separate petitions duly filed under Section 9 (c) of the National
Labor Relations Act, as amended, a consolidated hearing was held
before Hearing "Officer Max Steinfeld. The Hearing Officer's rulings
made at the hearing are free from prejudicial error and are hereby
affirmed. Thereafter, the Employer and the Intervenor filed briefs .,3
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
these cases to a three-member panel [Members Fanning, Brown, and
Jenkins].
1 The name of the Employer appears as amended at the hearing.
a The name of the Intervenor appears as amended at the hearing.
s On March 15, 1965, the Intervenor filed a motion to stay proceedings and to reopen,
and on May 24 filed a motion to reopen record for the receipt of arbitration transcript.
On June 7 the Employer filed an opposition to the Intervenor's motion to stay and its
motion to reopen. Subsequently , on July 22 the Intervenor filed a motion to reopen
record for the receipt of addendum to agreement , and on July 30 the Employer filed an
opposition to this last motion of the Intervenor. The foregoing motions are hereby
denied for the reasons set forth elsewhere in this Decision, Order, and Direction of
Election.
156 NLRB No. 33.