Local 3, Int'l Brotherhood of Electrical Workers

National Labor Relations Board - Board Decisions

Mar 20, 1961

130 N.L.R.B. 1458 (N.L.R.B. 1961)

1458 DECISIONS OF NATIONAL LABOR , RELATIONS BOARD
warrant a finding that McKenzie was offered this job in bad faith , and that McKenzie
left Respondent 's employ rather than accept such job . Accordingly, the Trial
Examiner recommends that the allegations of the complaint to the effect that
Respondent discriminated against McKenzie be dismissed . See The Great Atlantic
and Pacific Tea Company , Inc., 124 NLRB 329.
In the light of the findings and conclusions made in this report it is readily
apparent that in the opinion of the Trial Examiner the allegations of the complaint to
the effect that Respondent violated Section 8(a)(1) of the Act by notifying an
employee that he was to be transferred because of his union activity and by stating
to an employee he would be discharged because of his activities for the Union , should
be dismissed.
There remain for consideration the allegations of the complaint to the effect that
Respondent threatened an employee with discharge unless the employee attempted
to influence the choice of other employees in an impending election . The con-
versation between McKenzie and Carp on the eve of the election in which Carp
related the parable about the dog was clearly a threat of economic reprisal and
supports this allegation of the complaint.
ULTIMATE FINDINGS AND CONCLUSIONS
In summary , the Trial Examiner finds and concludes:
1. The evidence adduced in this proceeding satisfies the Board 's requirements
for the assertion of jurisdiction herein.
2. Local 536, Retail Clerks International Association , AFL-CIO, is a labor
organization within the meaning of the Act.
3. The evidence adduced establishes that Respondent threatened employees with
reprisals because of their activities on behalf of the Union and thereby engaged in
unfair labor practices within the meaning of Section 8 (a)( 1 ) of the Act.
4. The aforesaid activities are unfair labor practices affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
5. The evidence adduced does not establish that Respondent discriminatorily
discharged James F. McKenzie in violation of Section 8(a)(1) and ( 3) of the Act.
6. The evidence adduced does not establish that Respondent violated Section
8(a)(1) of the Act by notifying an employee he was to be transferred because of
his activities, on behalf of the Union or by stating to an employee he would be
discharged because of his activities for the Union.
[Recommendations omitted from publication.]
Local 3, International Brotherhood of Electrical Workers, AFL-
CIO; Building and Construction Trades Council of Greater
New York, AFL-CIO; and David Robertson , agent and Peter
Di Gangi, d/b/a Di Gangi Electrical Services . Case No. s-CC-
573. March 200, 1961
DECISION AND ORDER
On September 9, 1960, Trial Examiner William Seagle issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint 'be dismissed
in its entirety, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the General Counsel filed exceptions to
the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Leedom, and Fanning].
130 NLRB No. 150.
LOCAL 3, INT'L BROTHERHOOD OF ELECTRICAL WORKERS 1459
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 Inter-
mediate Report and the entire record in this case, including the ex-
ceptions and the brief, and hereby adopts the findings,' conclusions,
and recommendations of the Trial Examiner.
[The Board dismissed the complaint.]
1 Although we agree with the Trial Examiner 's conclusion that the Board 's jurisdic-
tional standards are satisfied in this case , we do not believe that the record supports his
view that the business of Caputo Brothers meets these standards . As it appears, how-
ever, that the total direct inflow to the construction project where the alleged violation
occurred is in excess et $50,000, we shall assert jurisdiction. See Caipei,ter8 Local Union
No. 1028 etc . ( Dennehy Construction Company ), 111 NLRB 1025 . We adopt the Trial
Examiner 's credibility resolutions , as the clear preponderance of all the relevant evidence
does not convince us that such resolutions were incorrect . Standard Dry Wall Products,
Inc, 91 NLRB 544, enfd . 188 F . 2d 362 ( CA. 3). We do not , however , thereby imply
that Di Gangi 's testimony should be discredited simply because it is uncorroborated.
Furthermore , we do not pass on the finding that Robertson was not an agent of the
Trades Council as it is unnecessary in view of the Trial Examiner's finding that no threat
was ever made by Robertson. -
INTERMEDIATE REPORT
STATEMENT OF THE CASE
The complaint charges a violation of Section 8(b)(4)(ii )( B) of the Act in con-
nection with the construction of a project consisting of 24 bowling alleys and a
restaurant at 272-280 Moffat Street, Brooklyn, New York . The general contractor
for this project was Caputo Brothers Coal & Fuel Company ( hereinafter denominated
Caputo Brothers ), which employed a construction superintendent by the name of
Clarence ("Clem") Lilly. In March 1960 the project , which had been commenced
in November 1959, reached a point where the subcontracting of the electrical work
became necessary , and the complaint alleges that the electrical subcontract was let
to one Peter Di Gangi, who did business under the firm name and style of Di Gangi
Electrical Services ( hereinafter denominated Di Gangi ). The complaint further
alleges that , on or about April 28, 1960, the Respondents demanded that Caputo
Brothers cancel Di Gangi 's contract because Di Gangi 's employees were not members
of Local 3 , and that in order to force Caputo Brothers to cease doing business-with
Di Gangi , they threatened Caputo Brothers that they would cause all the employees
of all the subcontractors other than Di Gangi to strike and to withhold their services
at the construction site if Di Gangi's employees performed any work thereon. .
Insofar as pertinent to the present case, Section 8 (b) (4) (ii ) ( B) of the Act pro-
vides that it shall be an unfair labor practice for a labor organization or its agents
to threaten , restrain , or coerce any person engaged in commerce or in an industry
affecting commerce with the object of forcing or requiring such person to cease doing
business with any other person.
On August 3 and 4 , 1960 , I held a hearing with respect to the allegations of the
complaint at New York , New York. All parties at the hearing were represented by
counsel and after the testimony had been taken , they argued orally the issues of fact
and law involved in the case.
Upon the record so made, and based upon my observation of the witnesses, I make
the following findings of fact:
I. THE RESPONDENTS
Local 3 , International Brotherhood of Electrical Workers, AFL-CIO , hereinafter
referred to as Local 3 , or as the Union , is a labor organization that has a membership
of approximately 30,000 in New York City, and that has approximately 600 contracts
with electrical contractors in New York City. The Union employs a business man-
ager, 4 assistant business managers, and approximately 30 business agents.
The Building and Construction Trades Council of Greater New York, AFL-CIO
(hereinafter referred to as the Trades Council ) is a labor organization consisting of
delegates from the local unions of the building trades in the area. There are approx-
imately 200 locals that elect or appoint delegates to the Trades Council and there
1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are in all approximately 212 such delegates. Local 3 sends 14 or 15 such delegates
to the Trades Council. However, no local union, is required to belong to the Trades
Council. In order for a delegate to be seated on the Trades Council, he must be
approved by a majority of the members of the Council. The Trades Council is
affiliated with the Building and Construction Trades Department of the AFL-CIO;
the New York State AFL-CIO; the New York State Building and Construction Trades
Council; and finally with the AFL-CIO itself. The constitution and bylaws of the
Trades Council make provision for the issuance by the Trades Council of member-
ship cards to be carried,by all affiliated local union members, and also provide that
such members shall be required to show their membership cards when requested to
do so by any business agent connected with the Trades Council. In actual practice,
however, such cards are issued by the Building and Construction Trades Department
of the AFL-CIO only to such locals as wish to have them, and the rules of the AFL-
CIO negate the provision requiring such membership cards to be shown to business
agents. The constitution and bylaws of the Trades Council also provide that any
business representative who finds a grievance on a job may attempt to settle such
grievance through his own efforts, but that if he is unsuccessful in doing so he may
present the grievance to the Trades Council for settlement. However, the constitu-
tion and bylaws of the Trades Council expressly provide that members shall use only
lawful means to effectuate its purposes, and that it will not support a strike to secure
increased wages, reduction of hours, or changes in working conditions, unless its
approval has first been obtained.
David Robertson is one of the business agents of Local 3. He is also a delegate
to the Trades Council, and secretary-treasurer of the Brooklyn Board of Business
Agents, which is composed of all the business agents in Brooklyn who are delegates
to the Trades Council. The borough boards of business agents were formed by the
business agents themselves, and do not have charters from the Trades Council.
Despite this, however, the Trades Council requires the boards to abide by the con-
stitution of the Council. Robertson receives no compensation from the Trades
Council, nor is he assigned any specific duties by the Trades Council.
H. THE EMPLOYERS
Di Gangi is a licensed electrical contractor, located at 177 Knickerbocker Avenue,
Brooklyn, New York, and the annual gross revenue of his business is about $100,000.
During the past year, Di Gangi has performed services valued at between $20,000
and $30,000 for the Brooklyn Union Gas Company.' During the past year, Di Gangi
has purchased materials in the amount of $30,000 or $40,000. However, only $4,000
or $5,000 worth of materials appear to have been purchased by Di Gangi and shipped
to him from a point outside the State of New York. These purchases were made
from Lincoln Electric Services located at Orange, New Jeresy.
Caputo Brothers is a corporation with its principal office and place of business at
272 Moffat Street, Brooklyn, New York. Before undertaking the bowling alley and
restaurant project in November 1959, Caputo Brothers had been solely in the coal
and fuel business, and had done no construction work. In connection with the
construction project, Caputo Brothers apparently organized an operating corporation,
Moffat Lanes, Incorporated, which was to own and operate the equipment installed
in the project. Frank Caputo was not only president of Caputo Brothers but also
of Moffat Lanes, Incorporated. The cost of the bowling alley and restaurant project,
which has not yet been completed, will be approximately $700,000. This will cover
the cost of the building, as well as of the equipment. The equipment, which will
consist of 24 bowling alleys and automatic pinsetters, is to be furnished by Brunswick
Corporation (formerly Brunswick-Balke-Collender Company, Inc.), which manufac-
tures and installs bowling alleys, and by Brunswick Pinsetter Corporation, which
furnishes automatic pinsetters. The bowling alleys will be installed on the jobsite by
Brunswick Corporation employees. The installation of the automatic pinsetters will
be performed, however, by the Otis Elevator Company. The contracts calling for
the furnishing or installation of the equipment are between Moffat Lanes, Incorporated
and the respective corporations. The value of the contract for the furnishing and
installing of the bowling alleys is $123,204.60. The cost of the equipment and sup-
plies to be furnished under this contract is about $98,000, more than $50,000 of
which is being shipped directly to the jobsite from points outside the State of New
York, such as Muskegon, Michigan, and Marion, Virginia. The value of the contract
for the furnishing of the automatic pinsetters is $249,172.32, and the pinsetters are
being shipped to the jobsite from Newark, New Jersey.
'The Board has asserted j urisdiction over the Brooklyn Union Gas Company (123
NLRB 441).
LOCAL 3, INT'L BROTHERHOOD OF ELECTRICAL WORKERS 1461
III. THE ALLEGED UNFAIR LABOR PRACTICE
The background of the incident that forms the basis for the unfair labor practice
charge against the Respondents is reasonably clear from the testimony of the principal
witnesses who included Peter Di Gangi , Frank Caputo , and Clarence ("Clem") Lilly.
When, in March 1960 , Caputo invited bids for the electrical subcontract , the bidders
were Thorstenson Electrical Construction ( hereinafter denominated Thorstenson),
Grove Electric Company, and Di Gangi . The Grove Electric Company does not
appear ever to have been seriously in the running for the award of the contract. The
first bid received by Caputo was made by Thorstenson , which was the only bidder
that ever actually prepared a plan showing in detail the electrical work to be done.
Di Gangi never prepared a plan of his own, and based his calculations entirely on
the building plans. There is also little, if any, doubt that from the very inception of
the letting of the electrical subcontract Caputo wanted to award it to Thorstenson,
and that the only reason that he did not do so any sooner than he did was that Di
Gangi was bringing pressure to bear upon him.
Caputo had known Di Gangi socially for about 10 years and they were friends
and lodge brothers ( Knights of Columbus ) but, since Caputo had theretofore been
solely in the coal and fuel business , Di Gangi had, of course , never done any elec
trical construction work for him ,2 and their friendship had never been put to any
test in any business relationship . It is apparent that Caputo doubted Di Gangi's
ability to do the extensive electrical work which the bowling alley and restaurant
project involved but he found it difficult to shake off a friend , even though that
friend 's initial bid was far higher than that of Thorstenson ,3 which was in the neigh-
borhood of $20,000. In this situation Caputo temporized by telling Di Gangi that
he would have to come down on his price . Di Gangi did reduce his asking price
considerably but he was not content to rely merely on the laws of competition, par-
ticularly against such a superior competitor as Thorstenson . While Di Gangi had
had no - previous experience in performing electrical work in connection with the
installation of bowling alleys, Thorstenson was the leading contractor in this field
in the city . Di Gangi, who knew that Caputo was also a friend of Father Rizzi,
their parish priest , proceeded to enlist the support of the latter in his effort to
obtain the Caputo Brothers electrical subcontract.
Thus it happened that one day-the day was a Tuesday , April 26 4-Father Rizzi
telephoned to Caputo to put in a good word for Di Gangi . In this telephone con-
versation , Caputo told Father Rizzi that he did not think Di Gangi was "big enough
to do that sort of a job" but the priest suggested , nevertheless , that he come down
to the rectory for a discussion of the problem , and to this, of course , Caputo agreed.
There were present at this meeting in the rectory , which took place the same day,
Di Gangi , Lilly, Caputo's construction superintendent , and, of course, Caputo him-
self and Father Rizzi. At the meeting there was considerable discussion of the
union affiliation of Di Gangi 's employees . Frank Caputo and Lilly wanted to
know specifically with what union Di Gangi had a contract , and he told them that
his contract was with Local 199 of the Industrial Workers of Allied Trades , affili-
ated with the Confederated Unions of America . When informed of this, they
wanted to know whether Di Gangi's "belonging to 199 would give them any trouble
with the rest of the trades," and Di Gangi told them that he thought "it was legiti-
mate." Father Rizzi urged Caputo to give Di Gangi the job, if it were at all
possible, since Di Gangi was a local man and a member of the parish . When Caputo
was asked at the hearing: "And what did you say to Father Rizzi when Mr.
Di Gangi was there?" he replied : "What can you say when you are called down by
a priest . I said that I would try to give him all due consideration ." Whatever
consideration Caputo did give to Di Gangi 's bid , it did not lead him to accept it, for
on May 3, 1960 , he signed an electrical subcontract with Thorstenson . The con-
tract price was $18,950.
Thus Di Gangi never had any electrical subcontract with Caputo Brothers, as is
assumed and alleged in the complaint . Of this there can be no doubt . The only
question raised by the conflicting testimony of Di Gangi and Caputo is whether
Di Gangi had even any oral commitment from Caputo to give him the electrical
subcontract . Even Di Gangi did not claim that Caputo promised him the contract
2 Di Gang! had once done the wiring for two oil burners that were being installed in
St. Joseph's College but obviously this small job had not been done for Frank Caputo
personally.
8 DI Gang! testified that his initial bid was $24,000 but Caputo testified that It was
$27,500.
• DI Gangi testified quite positively that it was the Tuesday of the week of April 28,
which would be April 25.
1462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at the meeting in Father Rizzi 's rectory . He testified that , having submitted to
Caputo a proposed contract in the form of a letter 5 or 6 days before the meeting in
the rectory , he went to Caputo 's office the very afternoon of the meeting in the
rectory at the latter 's suggestion to tell him whether he would meet the Thorstenson
bid and that he then told Caputo that he would meet the bid. Whereupon, according
to Di Gangi, he and Caputo shook hands, and the latter said: "It's a deal. Get
started right away," and walked away, being "in a,hurry to go some place."
To believe in the existence of the claimed "handshake agreement" is to strain
credulity. Di Gangi had had previously a number of meetings with Caputo and
with either his architect or Lilly, but the record does not show that there emerged
from these meetings any definite proposal or any definite understanding . Di Gangi
was rather vacillating in his testimony with respect to whether in these meetings he
definitely stated that he would meet the bid which Caputo had. He testified both
that he would meet the bid and that he would try to meet this bid. The first pro-
posal which can be said to have any definiteness is the proposed contract in letter
form submitted to Caputo by Di Gangi some days prior to the rectory meeting 5
but even this consists only of a list of electrical items to be installed without giving
the price either of each individual item or the cost of performing the electrical work
as a whole . I find it difficult to believe that any businessman would commit him-
self to an electrical subcontract which involved about $20,000 under such circum-
stances, especially when he doubted the ability of the subcontractor to perform the
contract , and when he was also in a great hurry to leave . Caputo's hurry was due
to the fact that he was about to leave on a vacation . He explicitly denied that he
made the "handshake agreement" with Di Gangi. Thus, when asked: "Did you say
to Mr. Di Gangi directly or indirectly that he had the contract and should proceed
with the work?" he replied : "No sir . No one could even proceed or any man would
be silly to proceed with a contract unless he has a signed contract ." Moreover, he
also denied that Di Gangi had ever left the letter-form contract proposal with him,
as the latter testified . I must credit Frank Caputo 's denials, not only because he
impressed me as an honest witness but also because his testimony makes more sense
than that of Di Gangi.
I come now to the question of fact which is at the same time the most crucial
and also the most baffling of any in the case. This is, of course , the question
whether David Robertson, the union business agent, made any threat to Di Gangi,
Caputo, or Lilly in connection with the letting of the electrical subcontract. The
witnesses who testified with respect to this question were not only Di Gangi, Caputo,
Robertson, and Lilly but one Maurice Vicario, who was also an old friend and lodge
brother of both Di Gangi and Caputo, and who had worked for Caputo until late
in 1959. The testimony of almost all the witnesses is, however, greatly divergent
with respect to even the smallest circumstantial details. Whoever can resolve
the contradictions in their testimony can do so only on the basis of the preponder-
ance of the perjury. It will be best to proceed, therefore, by summarizing the
testimony of each of the witnesses.
Di Gangi testified as follows: Right after the "handshake agreement" with Caputo
he went to see Lilly, and told him that he had the job, and Lilly inquired about the
union affiliation of Di. Gangi's employees, and also raised some question about a
change in equipment. Di Gangi arranged to meet Lilly at the construction site the
next day.6 He went there "airound lunchtime" the next day and looked for Lilly in
the construction shack but the construction superintendent was not there, and "the
fellows in the shack having lunch" told him that Lilly was somewhere in the back,
and he went outside to wait for Lilly's return. While he was standing on the side-
walk in front of the shack, Di Gangi saw his friend Vicario parking his car nearby,
and entered into conversation with him. Vicario suggested that they lunch together
but Di Gangi declined on the ground that he had to wait for Lilly. Vicario re-
marked: "There is Clem Lilly now," and as Di Gangi turned around, he saw Lilly
and Robertson standing right behind him. They all greeted each other and Robert-
son asked Di Gangi what he was doing there. When Di Gangi told Robertson that
he was going to do the electrical work there, the union business agent asked:
"What union do you belong to?" Di Gangi replied that it was Local 199, whereupon
Robertson remarked that "it was a fly-by-night outfit run by racketeers." Di Gangi
explained that Local 199 was what his men wanted, and Robertson asked him why
he did not come back to Local 3 (Di Gangi had had a contract with Local 3 some
8 or 9 years previously), and said that "only Local 3 was going to be able to do that
job" (namely, the bowling alley job). When Di Gangi remarked: "Well, so far as
"Although in letter form, this proposed contract was never mailed to Caputo.
"Di Gangi must have been mistaken in thinking that it was the next day. He had
previously testified that the "handshake agreement" occurred on Tuesday , April 26.
LOCAL 3,-INT'L BROTHERHOOD OF ELECTRICAL WORKERS 1463
I know , I had the job," Robertson told him that all the trades belonged to the same
council and that "if he went out, the rest of the trades would follow him." At the
same time Robertson showed Di Gangi a card which indicated that Robertson was
secretary-treasurer of the Brooklyn Board of Business Agents, affiliated with the
Trades,Council, and listed, on the reverse side of the card, the local unions that were
represented in the board. Di Gangi could not recall saying anything to Robertson
at this point. But he recalled that the business agent then said that his mother was in
the car and that he had to leave, and that as he was leaving he turned to Lilly and
told the superintendent that "if Di Gangi set one foot in the building he would call all
the rest of the trades out." Whereupon Lilly said to Di Gangi: "That is it, I don't
want anything to happen to the job." Di Gangi assured Lilly that nothing could hap-
pen but Lilly merely -repeated what he had already said. Di Gangi went back to his
office and called Mike Gordon, the president of Local 199, to make a complaint to
the latter. •Di Gangi also made a call to_Caputo but the latter told him that he had
heard what had happened, and that he would not be able to start the job.
Vicario was called as a witness on behalf of the General Counsel in order to cor-
roborate Di Gangi's testimony with respect to Robertson's alleged threats. Vicario
testified that he was at the bowling alley construction site about noon on April 28 (he
explained that he went there because it was the only place where he could park his
car when he went to lunch in that neighborhood) and that, seeing Di Gangi there, he
said "hello" to him. Vicario further testified that while he and Di Gangi were
talking Lilly and Robertson came out of the construction shack and Di Gangi walked
toward them but that although he could observe that they were engaged in conversa-
tion , he could not hear distinctly what was being said, since he was 10 to 15 feet
away, and there was too much noise because of the construction work that was being
done. All he could hear was some reference by Robertson to his being "secretary of
the labor council," and "something about labor there, about the people that are
working there, the unions.. . Not having been able to hear very well, he went
down to Di Gangi's office later in the afternoon to ask him what had happened,
and Di Gangi told him what Robertson had said. Counsel for the General Counsel
attempted to refresh Vicario's recollection by showing him two statements to which
he had sworn on May 21 and June 4, 1960, respectively, and in which he had deposed
that he had heard Robertson make certain statements. Vicario, very ill at ease, ad-
mitted making the statements, as well as declining to sign another statement that had
been presented to him on the ground that it was inaccurate, but he now declared that
he had signed the statements not because they were true but because he wanted
"to help out my friend Pete."
In the affidavit that Vicario made on May 21, he deposed merely that he had been
present at approximately 11:45 a.m. "at a conference held in the premises known as
__________" at which Robertson, Lilly, and Di Gangi had been also present and
that at such conference he had heard "Mr. Robertson make this statement: `You put
one foot into this building and all the trades will follow me out.' " It should be
noted that in this affidavit the place of the "conference" is left blank, and also that
it contains no statement as to whom Robertson made this threatening remark.
The affidavit of June 4, which is handwritten, is much longer-three pages-and
full of circumstantial detail. In this affidavit, however, Vicario did not mention that
he called the attention of Di Gangi to the fact that Robertson and Lilly were right
behind him. Vicario merely stated that Lilly and Robertson came out of the office
and spoke to Di Gangi, and that in the course of the conversation, which he heard,
being only 3 feet away from them, Robertson said to Di Gangi: "If you put one
foot in this building, all the trades will follow me out." Also Vicario did not men-
tion in his affidavit that he saw Robertson give his business card to anyone. Vicario
did mention that after what he overheard, he motioned to Di Gangi that he would
meet him in the restaurant but that Di Gangi failed to meet him in the restaurant,
and did not call him until the next day about making an affidavit.7
The witness who followed Vicario to the stand in behalf also of the General
Counsel was Caputo, who explicitly denied that Robertson had ever made any
threat to him, directly or indirectly, that the men would walk off the job if he gave
the electrical subcontract to any contractor who did not employ members of Local 3.
Caputo also denied that Lilly had ever reported to him that Robertson had made
such a threat to him. Affirmatively, Caputo testified that the only reason he awarded
the contract to Thorstenson was that its bid represented the better bargain from the
point of view of both performance and price.
David Robertson, who was called, of course, as a witness on behalf of Local 3,
° It seems difficult to understand why Vicarlo should have had to motion to his friend
Di Gangi when he was only 3 feet away.
1464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
admitted that he had a conversation with Lilly on April 28 but denied that he
threatened the latter. He testified that he had merely urged on Lilly the desirability
of employing electrical workers who were members of Local 3 because of their
greater competence and experience, and that Lilly undertook to convey what he had
told- him to his boss. Robertson also admitted that he gave Lilly his Brooklyn
Board of Business Agents card because the latter had mentioned the possibility of
the development of a jurisdictional dispute, and the card listed the various unions
in the building trades. According to Robertson, the conversation between him and
Lilly took place inside the construction shack on the job, and the encounter with
Di Gangi occurred as he and Lilly emerged from the shack and found Di Gangi
"standing right there." Robertson testified also that in the ensuing conversation with
Di Gangi, with whom he had had previous acquaintance, he made no threat to him
but merely told him that he would try to do what he could to get the job for his
people. Robertson also explicitly denied that he saw anyone that looked like
Vicario standing nearby while he talked with Di Gangi. Robertson did not at that
time know Vicario but Vicario, who is short, stocky, and swarthy, presented a
striking figure and,if Robertson had seen him, he could hardly have forgotten him.
Lilly was the last witness with respect to the alleged threats, and he was called
as a witness by counsel for Local 3 rather than by the General Counsel. Lilly had
made a brief affidavit on June 8, 1960, in which he had deposed that he had heard
of the claimed threats by Robertson but that he had not heard "him or anyone else
from Local 3 make such a threat." In his testimony at the hearing, Lilly fully sup-
ported Robertson's version of the latter's conversation with him in the construction
shack and of their encounter with Di Gangi on April 28 and, like Robertson, Lilly
also insisted that Vicario was not even present at the time. Nevertheless, Lilly did
not strike me as a very reliable witness. While he testified that he remembered the
events and conversations of April 28, he lapsed into complete testimonial amnesia
about everything else. He remembered very little, indeed, concerning the circum-
stances surrounding the preparation and execution of his affidavit of June 8. Al-
though he was among those present at Father Rizzi's rectory when Di Gangi's
interest in the electrical subcontract was discussed, he could not recall anything
that was said by anyone who was there. Asked to explain why he could remember
what was said by Robertson to him and Di Gangi on April 28 when he could not
remember what was said at the rectory meeting on April 26, he complied by ex-
plaining that he remembered what was said on the later occasion because it had
to do with the negotiation of the contract. But so, too, did the conversation at the
rectory 2 days earlier! Lilly also made a number of slips of the tongue which in
each instance he corrected almost immediately 8 but they cast further doubt on his
account of Robertson 's utterances and activities.
On the basis of the record in this case, I can only arrive at a Scotch verdict of
"Not Proven." There is no convincing evidence that any threat was made, directly
or indirectly, to any officer or other representative of Caputo Brothers, as seems to
be assumed in the complaint. Frank Caputo denied that any threat was made to
him. If Robertson made any threat to Lilly directly, he took good care to make
it in the privacy of the construction shack where no witness would be present.
Assuming that Robertson was indiscreet enough, when he emerged from the con-
struction shack, to threaten Di Gangi in the presence of Lilly, and that such a
threat could be considered as made indirectly to Caputo Brothers, the making of
the threat is denied by both Robertson and Lilly, and the latter testified, moreover.
that he never reported to Caputo when Robertson had said to him. Although Di
Gangi testified that Robertson threatened him, I cannot accept his testimony without
corroboration. It is corroborated, to be sure, except in some minor details, in the
affidavits which Vicario made, but he repudiated these affidavits at the hearing as
mere efforts to help a friend, and it is impossible to determine whether he com-
mitted perjury when he made the affidavits, or when he testified at the hearing. One
of the most puzzling aspects of Vicario's repudiation of his affidavits is that he de-
clared that he was still a friend of Di Gangi-indeed, they lunched together on the
very day that Vicario testified at the hearing. But the record does not show what
convinced Vicario to desert his friend.
The slips of the tongue and other bits of circumstantial evidence are insufficient
to support a finding that Robertson threatened Caputo Brothers, either directly or
9
Thus, in testifying about what Di Gangi said to Robertson in their conversation out-
side the shack, Lilly testified that "Pete said that he had this job" but then Lilly cor-
rected this to "that he was going to get the job. . . Lilly corrected another slip in
the very same breath. He testified that Robertson said to Di Gangi "he would see that
his men would get-try to get the job for his men in his local."
CROSCILL CURTAIN CO. & DURHAM DRAPERY CO., INC. -1465
indirectly . The making of a threat could be inferred , to be sure, from circumstantial
evidence if the only possible explanation of Frank Caputo 's refusal to award the
electrical subcontract to Di Gangi were the making of the alleged threat. But it
is perfectly clear from 'the record in this case that , quite apart from any question of
the union affiliation of Di Gangi 's employees , Frank Caputo had ample reason to
prefer Thorstenson to Di Gangi as an electrical subcontractor.
So far as the Trades Council is concerned , I find also that Robertson , in approach-
ing Caputo Brothers , was not authorized to act on behalf of the Trades Council, and
acted solely on behalf of Local 3. I reach this conclusion because the record shows
that Robertson was not an officer of the Trades Council; that he did not act as its
general agent ; that his approach to Caputo Brothers was not specifically authorized
by it ; and, finally, that the constitution and bylaws of the Trades Council expressly
prohibited the taking of any unlawful action.
In view of my findings of fact , there is no occasion for me to consider the con-
tention of counsel for Local 3 that the provisions of Section 8(b) (4) (ii ) (B), which
speak in terms of forcing any person by threats "to cease doing business with any
other person ," could not be said to have been violated in any case in which the
person threatened had no contract relationship or prior business relationships with
the person who was the object of the threat.
IV. THE QUESTION OF COMMERCE
Although Di Gangi is engaged in commerce , his own operations are not of suffi-
cient magnitude to meet the Board 's jurisdictional standards . The operations of
Caputo Brothers amply meet, however , such standards. As in cases arising under
Section 8 ( b)(4) of the Act the businesses of the employers involved may be com-
bined for jurisdictional purposes, the jurisdictional standards of the Board are
satisfied.
Upon the basis of my findings of fact, and upon the entire record in the case, I
hereby reach the following:
CONCLUSIONS OF LAW
1. Local 3, International Brotherhood of Electrical Workers, AFL-CIO, and
Building and Construction Trades Council of Greater New York, AFL-CIO, are
labor organizations within the meaning of Section 2(5) of the Act..
2. Peter Di Gangi , doing business as Di Gangi Electrical Services , and Caputo
Brothers Coal and Fuel Corporation are persons engaged in commerce or in in-
dustries affecting commerce within the meaning of Section 2(6) and (7) of the Act.
3. By engaging in the activities described in section III of this report , the Re-
spondents have not engaged in any unfair labor practice affecting commerce within
the meaning of Section 8(b) (4) (ii ) (B) of the Act.
[Recommendations omitted from publication.]
Croscill Curtain Company and Durham Drapery Company, Inc.
and International Ladies' Garment Workers Union , AFL-CIO.
Cases Nos. 11-CA-1612 and 11-CA-1621. March 20, 1961
DECISION AND ORDER
On July 27, 1960, Trial Examiner Charles W. Whittemore issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. The Trial Examiner also found
that the Respondent had not engaged in certain other unfair labor
practices alleged in the complaint, and recommended that the allega-
tions of the complaint to such extent be dismissed. Thereafter, the
130 NLRB No. 147.