Local 18, Bricklayers, Masons, Etc.

National Labor Relations Board - Board Decisions

Jun 8, 1965

152 N.L.R.B. 1280 (N.L.R.B. 1965)

1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their own choosing , or to engage ' in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection , or to refrain from any or all
such activities.
WARD MANUFACTURING, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by- any other material.
Employees may communicate directly with the Board 's Regional Office, Room
2023 Federal Office Building , 550 Main Street , Cincinnati , Ohio, Telephone No.
381-2200, if they have any question concerning this notice or compliance with its
provisions.
Local 18, Bricklayers , Masons and Plasterers ' International Union
of America, AFL-CIO and Jesse Bulle and Union County Build-
ing Contractors Association and the Johansen Company, Parties
to the Contract . Case No. 10-CB-784. June 8, 1965
DECISION AND ORDER
On March 30, 1965, Trial Examiner Thomas F. Maher issued his
Decision and Order on Motion To Dismiss in the above-entitled pro-
ceeding, finding that the General Counsel has failed to establish a
prima facie violation of Section 8(b) (1) (A) and (2) of the National
Labor Relations Act, as amended, as alleged in the complaint, and
granting the Respondent's motion that the complaint be dismissed in
its entirety, as set forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel filed a request for review thereof, and
the Respondent filed a brief in opposition to such request for review.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner 's Decision, the request for review and the brief in opposi-
tion to review, and the entire record in this case, and hereby adopts the
Trial Examiner's findings, conclusions, and recommendations.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended , the National Labor Relations Board hereby adopts as its
Order the Order of the Trial Examiner, and orders that the complaint
herein be, and it hereby is, dismissed.
152 NLRB No. 130.
LOCAL 18, BRICKLAYERS, MASONS, ETC. 1281
DECISION AND ORDER ON MOTION TO DISMISS
PRELIMINARY STATEMENT
Upon a charge and amended charge filed by Jesse Bulle on September 18 and
November 2, 1964, respectively, the Regional Director for Region 22 of the National
Labor Relations Board, herein called the Board, issued a complaint on behalf of the
General Counsel of the Board on January 7, 1965, against Local No. 18, Bricklayers,
Masons and Plasterers' International Union of America, AFL-CIO, Respondent
herein, alleging violations of Section 8(b)(1)(A) and (2) of the National Labor
Relations Act, as amended (29 U.S C., Sec. 151, et seq.), herein called the Act. In
its duly filed answer Respondent, while admitting certain allegations of the complaint,
denied the commission of any unfair labor practice.
Pursuant to notice, a hearing was held before Trial Examiner Thomas F. Maher,
on January 27, 1965, at Newark, New Jersey, where all parties were present, repre-
sented by counsel, and afforded a full opportunity to be heard. Counsel for the
General Counsel presented his case-in-chief, with full opportunity to Respondent's
counsel to cross-examine witnesses. Upon the conclusion of General Counsel's case-
in-chief, counsel for Respondent moved the dismissal of the complaint herein on the
ground that upon the record made the General Counsel had failed to establish a vio-
lation of the Act. Because I entertained serious doubt that the General Counsel had
established a prima facie violation of the Act, and in deference to Respondent's right
in due process not to be required to enter its defense in the absence of such a showing,
I adjourned the hearing for an indefinite period and requested briefs of the parties
directed to the substance of Respondent's motion. Briefs were filed with me on
February 19, 1965.
Upon consideration of the legal arguments and analysis of evidence advanced by
the parties in their briefs, and upon a review of the record made by the General
Counsel in support of the allegations of the complaint in which I assume, of necessity,
the veracity of all witnesses appearing before me, I make the following.
FINDINGS AND CONCLUSIONS
I. THE EMPLOYING CONTRACTOR'S OPERATIONS
Union County Building Contractors Association, with whom Respondent has a
collective-bargaining agreement, is an association of employers whose members are
engaged in the construction business in and about Union County, New Jersey. In
the course and conduct of the business of these member employers, they caused to be
purchased, transferred, and delivered to construction sites construction material
valued in excess of $50,000, of which materials valued in excess of $50,000 were
transferred to said construction sites in interstate commerce directly from States of
the United States other than the State of New Jersey. Upon the foregoing stipulated
facts I conclude and find that the Association and its members are employers within
the meaning of Section 2(6) and (7) of the Act.'
II. THE STATUS OF LOCAL 18
It is conceded , and I conclude and find, that Respondent , Local 18, Bricklayers,
Masons and Plasterers ' International Union of America, AFL-CIO, is a labor organi-
zation within the meaning of the Act.
III. THE CONTESTED ALLEGATIONS OF THE COMPLAINT
It is alleged that on or about September 22, 1964 and on various other unknown
dates Respondent violated Section 8(b)(1)(A) and (2) of the Act by failing and
refusing to refer Jesse Bulle to employment as a cementmason upon his request that
it do so.
IV. PERTINENT FACTS ADDUCED
A. Introduction
In support of his allegation that Respondent failed and refused to refer Bulle to
employment, counsel for the General Counsel introduced into the record testimony
i It is well settled that applicants for employment such as those who appear at Re-
spondent's headquarters for referral to jobs are considered employees for the purposes of
the Act. Phelps Dodge Corp v. N.L R.B, 313 U S 177, 191-192.
7 8 9-730-G G-v o f 15 2-8 2
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Respondent operates an exclusive hiring system , whereby employers requiring
the services of qualified cementmasons would communicate their needs to the Union's
hall and obtain suitable help . This facility operated pursuant to an agreement between
Respondent and the employers whereby:
The Employer agrees that at least 48 hours before commencing work on any job
in the territorial jurisdiction covered by this agreement , he will notify the Union
and thereafter give it a reasonable opportunity to furnish qualified applicants
to the Employer. In hiring any employees,"the Employer agrees that it will not
discriminate because of membership in the Union.
Evidence in the record establishes that employers invariably go to the Union for
their cementmasons , using the facilities exclusively for this purpose . In instances
when no applicants are available employers then communicate with other union halls
in the area , and when no employees were thus available they would feel free to "go
out on the street" and hire. The employing contractors use this system not only as
a matter of contract obligation but as a matter of convenience.2
By way of background it appears that in 1960 Jesse Bulle , a qualified cementmason,
had experienced difficulties in his relations with Respondent , of which he was then
a member. As a result charges were brought against him and his membership was
forfeited.3 Since then he has made repeated effort to regain his membership status,
but as of the dates upon which he visited the hall in September 1965 he still was not
a member.
B. Bulle 's visits to the union hall
On September 10, 1965, and continuing each weekday thereafter Bulle appeared
at the union hall at or about 7 or 7:15 a.m ., the time when it normally opened and
when men were referred out to jobs by Business Agent Sal Migliore, or whomever
was acting in his stead . When Bulle appeared on Thursday , September 10, he went
to Business Agent Migliore 's office, which was actually a railed off portion of the
union hall ; the hall itself being located on the second floor at the head of a flight of
stairs and , directly off of an entrance hallway. Bulle talked with Migliore for approxi-
mately a half hour about work and about the possibility of reinstatement to member-
ship.4 Specifically, Bulle asked, "How about getting work," and according to his own
testimony , "To my knowledge he (Migliore ) said `no work ."' In any event Bulle
saw no cementmason referred to a job on that day, thus confirming Migliore's state-
ment to him that no jobs were available . Other cementmasons were also at the hall
on this day seeking referral but were equally unsuccessful.
On Friday, September 11, late in the morning , Migliore departed on union busi-
ness for Las Vegas, Nevada, and did not return until late on September 21. Before
leaving on this morning he was at the hall, and at approximately 7 a.m Bulle
appeared there, asked for work, and was told by Migliore that no jobs were available.
As on the previous day, Bulle saw no one assigned to work during the time he was
present and knew of no assignments.5
On the next workday, Monday, September 14, Migliore's duties were assumed by
Thomas Clark , president of the Respondent Union. Bulle was at the hall, as usual,
by 7.15 am. and prior to Clark's arrival. When Clark came in he asked him, "How
about work?" Clark replied, "No work, Jesse." Elsewhere in his testimony Bulle
recounted this question to Clark, thus: "Any chance of getting a day's work?" To
which Clark replied, "Bulle , there's nothing doing . If there was I would give it to
you.,,
2 The testimony of John McCaron, an official of the Union County Builders
Association,
and official of one of its employer members.
3 Unless otherwise indicated all facts detailed herein are those supplied by Jesse Bulle
at the hearing.
4 At one point in his testimony Bulle stated, "I knew I could
work with or without a
book , and that's why I went up there "
5 James Oliphant, a cementmason , was placed at the hall on this date by Bulle
Oliphant
testified concerning referrals but none on the date in question , September 11
In an
affidavit signed by Bulle prior to the hearing he stated, referring to this
occasion, "I do
not know what men, if any, were referred out that day as cementmasons
" [ Emphasis
supplied ]
LOCAL 18, BRICKLAYERS, MASONS, ETC. 1283
President Clark substituted for Migliore for the remainder of the week. Each day
Bulle would report and ask for work, each time to be told that no jobs were available.6
Miglore returned to Newark on Monday, September 21, but not in time to perform
his duties at the union hall. When the men first appeared at the hall that morning
no one was there to handle matters so someone immediately went to a nearby con-
struction project where President Clark was then employed and brought him back to
the hall to handle the referrals until Mighore appeared.7 Bulle, who had arrived at
7.05 a.m., described Clark's late arrival but did not testify to any conversation with
Clark or to any referrals made on that day.
On the following morning, Tuesday, September 22, Mighore was back at the hall.
Bulle appeared there but, contrary to his practice during the previous week (supra),
"didn't ask them anything." He stayed downstairs. Indeed Bulle testified: "When
Mr. Mighore came back Tuesday I never saw him no more. Only when he passed
with a car on something; that's the only time I saw him."
C. Countervailing evidence
The foregoing narrative, as has been noted, is a synthesis of the testimony of the
charging party, Jesse Bulle, except where indicated otherwise. In addition to this
testimony, Bulle provided other items of testimony which should be noted in a deter-
mination of this sort, and certain other witnesses likewise provided testimony that
must also be considered.
Four times while testifying Bulle stated that following his September 22 visit to
the union hall he never saw Migliore again. Thus on direct examination, as quoted
above, and thereafter on cross-examination he stated that after the 22d "I never came
back and asked for a job. I was downstairs, but I never saw Sal Mighore for a job."
And again he testified that after that date "I never went upstairs at all." And finally,
in answer to the question, "You were there only one day when Sal (Mighore) was
there and that was the 22d, is that your testimony?" To which Bulle replied, "That's
right." 8
On the other hand, counsel for the General Counsel invites my attention to testi-
mony of Bulle on redirect examination, immediately prior to the completion of his
testimony Counsel had presented Bulle with his pretrial affidavit in which Bulle
had stated that "On September 22, 23 and 24 I saw Mighore about 7:30 or before
each day and asked him for work but he told me he's got none of work and has no
job for me " When asked to confirm this statement Bulle replied, "It must be true.
It could be true. I just can't recall " I cannot accept this confused answer as proba-
tive testimony by Bulle that he was present after the 22d. Indeed, without regard
to this confusion and to other matters in which Bulle contradicted himself as to minor
details, dates, and trivia, a reading of his testimony in full context can provide no
more plausible sequence of facts than those in the narrative of the preceding section.
Other witnesses appearing for the General Counsel have provided items of testi-
mony upon which General Counsel relies to establish, despite Bulle's denials of the
fact, that he requested and was refused a job.
James Oliphant testified that when he arrived at the hall on the 22d he went upstairs
and he "met Jesse Bulle on his way out ... he was upstairs there. I met him coming
down." But when asked if he saw Bulle talking with Mighore on that occasion he
replied, "No, I didn't."
Similarly, Raymond Powell testified that he saw Bulle at the hall on September 22.
Thus, as Powell was going into or coming out of the union hall (the record is not
0In this respect it is significant to the determination of issues presented here that
counsel for the General Counsel stated on the record, "We are not alleging that Mr Clark
did discriminate," thus excluding consideration of the events occurring during the week
beginning Monday, September 14 When asked by me what he did consider the subject
matter of the discrimination, counsel replied that it was the meeting with the Business
Agent Mighore thereafter on September 22 (infra)
7 The mutually corroborating testimony of Jesse and Edward Bulle and Raymond Powell
Occasionally, as lie testified, Bulle confused Monday, the 21st, with Tuesday, the 22d
It will be recalled that Mighore first appeared at the hall on Tuesday, the 22d, after his
return. I have taken this known fact into account when consideiing Bulle's testimony
and in so doing I relate his testimony to the September 22 date, regardless of his calendar
confusion.
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clear which ) he testified to having seen Bulle standing in the hallway. Bulle's posi-
tion there, leaning on a bannister , was not such , according to Powell , that Miglore
could have seen him standing there. Nor did Powell testify to any knowledge that
Bulle had asked for a job on that particualr day 9
And finally, Bulle's son Edward testified that when he arrived at the hall on the
22d he found his father standing downstairs. Edward Bulle asked his father "was
anything doing," and Bulle replied , "Nothing doing." Thereupon Edward Bulle was
asked a leading question as to whether Jesse Bulle had told him he had been up to
see Migliore and had been told by him that there was nothing doing. Edward Bulle's
reply was, "Yes." On examination by counsel Edward Bulle was never confronted
with his father 's previous testimony wherein he failed to recollect that he had spoken
to Migliore on that occasion.
Powell also testified concerning an incident claimed to have occurred on Friday,
September 25, one of the subsequent dates on which Bulle has four times denied
having seen Migliore. On this day Powell reported to the hall in his usual fashion and
was referred to a job by Migliore, together with one for Wallace and Bulle's son,
Edward Bulle. After Powell had left Migliore's office with his own referral slip, and
one each for Wallace and Bulle, Junior, he went downstairs and was told by Wallace
that he did not want the job. Jesse Bulle meanwhile , according to Powell, had gone
upstairs to Migliore's office. As Powell went back to Mighore to tell him he would
need a replacement for Wallace he met Jesse Bulle coming out of Mighore's office
complaining that he "can't get a day's work out of him." Powell went into Migliore's
office at this point and told him of Wallace's refusal. Migliore asked, "Who else is
outside." Without any reference to Bulle, Powell immediately replied, "Johnny
Holner"; and Migliore directed Powell to take Holner to the job.
D. Analysis and conclusions
The gravamen of the complaint here is that Respondent, in its administration of
an otherwise legal referral system, has caused discrminiation against Jesse Bulle by
failing and refusing to refer him to jobs in accordance with the usual practice of the
system Basic to the whole issue is the burden upon General Counsel to establish
three distinct items of proof that: (1) Bulle requested that he be assigned or referred
to a job, (2) a job was available when such a request was made, and (3) his request
for an available job was refused for reasons proscribed by the Act.
With respect to the first requirement the evidence adduced discloses that on Bulle's
many visits to the hall his requests were intermittently for his reinstatement to union
membership, for a job, or for both As such is the case it cannot be inferred that
his mere presence at the hall each time constituted , in and of itself , a request for a
referral. Bulle testified that he had frequently gone there seeking his "book," thus
rebutting any presumption that he may have gone there then, or on other occasions,
for a job, when on such occasions he was not shown to have requested a job.
With respect to the second factor-job availability-the evidence clearly estab-
lishes that on certain days jobs were available, and that on certain other days jobs
were not available. A review of all the testimony, however, does not, in my opinion,
disclose one single item of affirmative evidence that Jesse Bulle ever requested a job,
and was thereafter refused, on a day, or at a time, when jobs were available. Absent
evidence of such a request, essential as it is to the substance of the violation, I must
necessarily conclude that General Counsel has failed to establish that Respondent
could have refused such a request.
I am mindful of a modicum of testimony which I have considered under the sec-
tion "Countervailing Evidence." This constitutes a considerable amount of circum-
stantial data , contradiction , and hearsay . Balanced against it are the admissions of
Bulle inherent in his total testimony that during the period involved he never asked
for a job when one was available.
Upon consideration of the foregoing , together with the entire record and the briefs
of the parties, I conclude and find that counsel for the General Counsel has failed to
establish a prima facie violation of Section 8(b)(1)(A) and (2), as alleged.
'Powell also testified to having been referred to a job on that same morning Until
it has been established that Bulle requested that he be referred to a job, the existence
of jobs does not appear to be relevant to the issue at hand ( infra)
CARPENTERS . DISTRICT COUNCIL, LOCAL 253 ., ETC. .1285
IT IS HEREBY ORDERED, pursuant to Section 102.25 and 102.35(h) 10 of the Board's
Rules and Regulations , Series 8, as amended, that Respondent 's motion to dismiss
the complaint be granted , and that the complaint be accordingly dismissed in its
entirety.
IT IS FURTHER ORDERED that unless, pursuant to Section 102.27 of the aforesaid
Rules and Regulations , counsel for the General Counsel files with the National Labor
Relations Board a request for review of the action taken herein within 10 days from
the date of this Order the case shall be closed.
10 United Steelworkers of America, AFL-CIO, and Local Union No. 2140, et at. ( United
States Pipe and Foundry Company ), 129 NLRB 375, enfd . sub nom. United States Pipe
and Foundry Company , 298 F . 2d 873 (C.A. 5) ; Cherry Rivet Company , 97 NLRB 1303,
footnote 1.
Carpenters District Council, and Carpenters Local Union No. 253
and Wood , Wire & Metal Lathers International Union, Local
No. 136, AFL-CIO and Forman Bros . Cases Nos. 17-CD-64 and
17-CD-66. June 8, 1965
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding pursuant to Section 10(k) of the National
Labor Relations Act, as amended, following charges filed by Forman
Bros., herein referred to as the Employer, alleging, in substance, that
Carpenters District Council and Carpenters Local Union No. 253,
herein referred to respectively as the Council and Local 253 and col-
lectively as the Carpenters, and Wood, Wire & Metal Lathers Inter-
national Union, Local No. 136, AFL-CIO, herein referred to as the
Lathers, violated Section 8(b) (4) (D) of the Act by engaging in con-
duct to force or require the Employer to assign certain disputed work
to employees represented by the respective Unions. A consolidated
hearing was held before Hearing Officer Hutton S. Brandon on Feb-
ruary 6 and March 8, 1965. The Employer, the Carpenters, and the
Lathers appeared at the hearing and were afforded full opportunity
to be heard, to examine and cross-examine witnesses, and to adduce
evidence bearing on the issues. The rulings of the Hearing Officer
made at the hearing are free from prejudicial error and are hereby
affirmed. A brief was filed by the Lathers and has been duly considered.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Jenkins].
Upon the entire record in this proceeding, the Board makes the
following findings :
A. The business of the Employer
The parties stipulated that during calendar year 1964, the Employer,
a partnership engaged in the building and construction industry, with
152 NLRB No. 129.