Phillip Diniaco & Sons, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 825 (N.L.R.B. 1969)

PHILLIP DINIACO & SONS, INC. 825
Phillip Diniaco & Sons, Inc. and Painters,
Decorators and Paperhangers of America Local
Union 813, AFL-CIO. Case 9-CA-4931
June 30, 1969
DECISION AND ORDER
By MEMBERS FANNING, BROWN, AND JENKINS
On April 22, 1969, Trial Examiner George A.
Downing issued his Decision 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, 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 Respondent filed a brief in
support of the 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.
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 exceptions, the briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendation of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
TRIAL EXAMINER ' S DECISION
STATEMENT OF THE CASE
GEORGE A. DOWNING, Trial Examiner : This proceeding
under Section 10(b) of the National Labor Relations Act
as amended was heard at Huntington , West Virginia, on
March 18, 1969 , pursuant to due notice . The complaint
which was issued on January 17, 1969 , on a charge filed
October 24, 1968,' alleged as amended that Respondent
engaged in unfair labor practices proscribed by Section
8(a)(5) and (1) of the Act by refusing on or about August
15 and thereafter to bargain with the Charging Union as
the collective bargaining representative of its employees in
a unit of maintenance painters performing work for
'Although we agree with the Trial Examiner 's finding that Respondent
did not violate Sec. 8(a)(5) of the Act, we find it unnecessary to adopt his
findings and conclusions regarding whether or not Business Representative
Dille was, in the total context of the case , attempting properly to represent
Respondent ' s employees.
Respondent at the International Nickel Company,
Huntington Works, . at ;Huntington . Respondent answered
on January 24, denying the unfair labor practices.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS, THE LABOR ORGANIZATION
INVOLVED
I find on admitted allegations of the complaint that
Respondent is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act' and that the Charging
Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Introduction and Issues
Respondent and its predecessor , Phillip Diniaco (as an
individual), have for many years contracted with
International Nickel Company (Inco herein) to do its
inplant painting on an hourly basis . Respondent also
occasionally contracted with Inco for certain types of
construction work where no painting was involved, and it
also sometimes subcontracted under other
(construction)contractors for the painting of new
construction at Inco.
When painting under its direct contract with Inco,
Respondent paid the rates for maintenance painting as
provided in its collective bargaining agreement with Local
813' and when painting under subcontract with
construction contractors it paid the rates established by an
"outside" or area agreement to which it was not a
signatory.
The present controversy arose out of the Union's efforts
to put a stop to a long -standing practice by Diniaco, when
directed by Inco, of doing certain painting on new
construction (generally structural steel). It involved
specifically an attempt by Business Representative W. L.
Dille to gain admittance to the plant compound in August
1968, and the refusal of admittance. The contract was
silent concerning the conditions under which outside union
representatives might be admitted, but Inco's practice was
to admit them when requested to do so either by the
contractor's representative or by the steward on the job.
The complaint alleges a refusal to bargain by reason of
the denial of admittance to Dille to inspect the duties and
conditions of employment of Respondent's employees,
thereby interfering with the Union's administration and
policing of its contract.
B. The Evidence
The General Counsel's case rests on the testimony of
Business Representative W. L. Dille as corroborated in
'All events herein occurred in 1968 unless otherwise noted
'Respondent , a West Virginia corporation , engaged at Huntington in the
building and construction contracting business, had a direct outflow of
goods and services in interstate commerce in excess of $50,000 per annum
which it sold directly to customers located outside the State of West
Virginia.
'Respondent has for some 15 years recognized that Union as the
bargaining representative of its maintenance painters performing work
within the Inco plant complex, the current contract running from June 10,
1968, to June 10, 1971
177 NLRB No. 88
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
limited respects by Ted R. Hatton, a representative of the
Building Trades Council, who was present when Dille was
refused admittance by Nicholas Diniaco. Respondent
offered opposing testimony by Nicholas Diniaco and
Mark Diniaco, by union steward George Smith, and by
employees (and union members) Ernest Endicott and
Eugene Meade. Though the circumstances which directly
surrounded the denial of admittance are the subject of
some controversy , there is no dispute concerning certain
background events, themselves essential to determination
of the central issue herein , as next summarized.
Both Eugene Meade and job steward George Smith
testified that Diniaco's painters had customarily done the
painting of structural steel at the maintenance rate
(almost daily for some 9 years according to Meade). They
had served on the Union ' s negotiating committee which
bargained for the contract (see fn. 3, supra), and their
understanding was that under Diniaco's contract with Inco
maintenance painting covered anything on which the
painting orders came directly from Inco to Diniaco.
Endicott testified to a similar understanding , and none of
them ever had or expressed any feeling that in performing
such work they should be getting the outside (area) rate.
Indeed, Dille admitted that he had no complaint or
grievance from any of his members in the unit covered by
his contract with Diniaco and that his visit was occasioned
instead by reports from outside painters that Diniaco's
employees were painting construction work . Dille also
admitted ultimately that the purpose of his visit was,
"Absolutely," to protect the work of the outside painters,
and he testified that he would have an objection even if
Diniaco' s painters were paid at the outside rate because it
was the Union's practice to furnish outside painters from
the union hall to do new construction painting of the type
which Diniaco's employees were doing. Summing up, Dille
conceded specifically that what he wanted was to put
other (nonmaintenance ) painters on the job.
This setting sheds revealing light on the curious
circumstances of Dille's efforts to gain admittance and
constitutes the decisive factor in resolving the only
conflicts in the testimony. Dille testified that in company
with Business Representative Ted Hatton, of the Building
Trades Council, he first sought entrance at the
construction gate' because of reports of construction
painting in the new building. The guard informed him
there were no construction painters who entered through
that gate and directed him to go to the main gate.
Dille did not go to the main gate immediately and there
intervened a curious interlude of substantial length during
which Dille and Hatton were outside the fence of the
compound near the open end of the newly constructed
building. Under Dille's testimony he saw, as he started
toward the main gate , two of his union members (Ernest
Endicott and Eugene Meade) painting inside the new
building and had a brief conversation with them through
the fence during which they confirmed the fact that they
were painting on the building . Dille informed them they
should not be doing that work but they refused to stop,
stating that it was "what the boss told them to do."
There was more to the incident, however, under the
mutually corroborative testimony of Endicott and Meade,
which I credit.' Endicott testified that he was alone when
he first talked with Dille through the fence and that when
he affirmed that he was painting on the new building,
Dille asked if he knew he was doing so "illegally."
'A separate entrance provided for employees of outside contractors.
However , Diniaco' s employees did not use that gate , to Dille 's knowledge.
Endicott stated his understanding was it was not illegal,
and Dille replied that he was going to stop Endicott or
"would see about it." Dille asked him to give a signed
statement, but Endicott refused, stating that Dille could
see for himself what Endicott was doing.
After Endicott returned, Meade went out during the
dinner period to speak with Dille about his union book,
but Dille was not there. Following dinner Meade went out
again and spoke with Dille, who inquired what he was
doing . (In the meantime Endicott also came out again.)
When Meade replied that he was painting, Dille
responded, "[D]on't you know that is our work," by
which Meade understood Dille to mean the work of the
outside painters. Dille added that he was going to stop
them from doing that work and he requested Meade to let
him into the compound. Meade refused, telling Dille he
should apply to the guard at the main gate. Meade
testified further that Dille did not ask to see Smith, the
job steward, and did not ask whether he was getting the
outside rate or felt that he was entitled to it.
Thereafter Dille went with Hatton to the main gate and
sought admission from the guard, who told them
(pursuant to standard Inco policy) that they would have to
be taken in either by the steward or by Diniaco's
supervision. Dille testified that the guard called the paint
shop and learned that Nicholas Diniaco was there but that
Smith, the steward, was at the other end of the compound
(some quarter-mile away). Nicholas came to the gate and
Dille requested admittance to check the work to see
whether the maintenance painters were doing construction
painting . Diniaco admitted that they were, and an
argument ensued , with Dille contending that they were not
to do new construction painting because the wage rates
were different and it was unfair to outside contractors in
trying to bid for work at the lower rates for maintenance
painting. Diniaco in turn contended that his painters
should do the work because, "it is all Nickel plant work"
and that Dille wanted to come in simply to cause trouble
on the job.
Dille admitted on cross-examination that he asked
Diniaco to take the maintenance painters off the job (of
construction painting ) and to "stop right then," and that
Diniaco refused to do so. Despite that, Dille testified, he
desired admittance to inform the steward that the men
should not be doing the work.
Hatton testified that as a representative of the Building
Trades Council he normally applied at the construction
gate for admission by the various contractors who might
be engaged in construction work, and that Dille requested
him to go along on the occasion in question in order to
facilitate his own admission, stating that he was having
trouble with Diniaco's employees who were doing
maintenance painting on construction work. Hatton did
not directly corroborate Dille's version of the conversation
with Diniaco insofar as it concerned the purpose of
entering the plant, testifying only that Dille said he
"wanted to get in there and see what they were doing."
Hatton did not recall whether Dille asked to see Smith.
Nicholas Diniaco testified that Dille asked to talk to a
Mr. Perry, who was supervising for Respondent a
construction project under a different contract which
covered road work, foundations and concrete work in
connection with building a miniature railroad but which
involved no painting . He informed Dille that since Perry
had no painters on that job, Dille had no authorization to
'Hatton testified he did not hear the conversation between Dille and the
employees
PHILLIP DINIACO & SONS, INC. 827
go onto it, that the only painters in the area were
Diniaco' s maintenance painters, and that since Dille was
not presenting any grievance concerning them, Diniaco
could not let him in the plant. Dille insisted that Perry's
job was "his work" and that he wanted to go in there to
stop it. Diniaco refused, stating that if Dille had any
"gripe" concerning the painters, he should handle it
through union procedures. Dille made no claim of a
grievance and did not ask to talk either with Smith or any
of the painters.
There was no dispute under the testimony (including
that of Dille and Steward Smith) that as the grievance
procedure operated the employees presented their
grievances to the steward, who would take them up with
Nicholas Diniaco and endeavor to resolve them on the
spot. However, no grievance had been brought to Smith in
some two years of his tenure as steward.
There remains the matter of resolving the conflicting
claims by Dille on the one hand that he sought entrance
from Diniaco to check the painting job and by Diniaco on
the other that Dille proposed to check on a new
construction project which Respondent was performing
under a separate contract with Inco which involved no
painting. As the latter work was proceeding under Dille's
full view as he stood at the fence, there was no apparent
need or reason for Dille to check on it from within the
compound. Yet under Dille's testimony his stated purpose
was to check the painting job though he had already fully
confirmed the fact (which Diniaco admitted) that the unit
painters were painting structural steel. Thus though there
was no need for Dille to gain entrance under either
version, I credit Diniaco's testimony for the following
reasons:
It was apparent from Dille's prior experiences that he
had known for years that Diniaco's painters customarily
painted structural steel and that he well knew he could not
hope to gain admittance from Diniaco at the main gate by
allegedly seeking to check on that fact. Instead Dille
studiously avoided resorting to established procedures for
reaching the job steward and Diniaco's employees in the
unit which the Union represented. He attempted first to
gain admittance at the construction gate (apparently using
Hatton as an ostensible endorser) though knowing that
Diniaco's painters did not use that gate, and failing there,
he sought to have Meade admit him into the plant after
fully confirming the report he was allegedly investigating,
i.e., that Diniaco's employees were engaged in painting
new construction. Failing then also in his efforts to have
Meade and Endicott stop work on the new construction,
Dille informed them he nevertheless proposed to stop
them, and there later ensued the disputed conversation
with Diniaco.
Though the point is not crucial to determination of the
ultimate issue, I conclude and find on Diniaco's credited
testimony that Dille was pursuing his attempts to gain
entrance to the plant by subterfuge.
C. Concluding Findings
seeking payment to them of the outside rate on new
construction, but he intended to the contrary to supplant
them in their jobs with other painters, not in Diniaco's
employ, to be assigned from the union hall. Thus the
entire picture of Dille's conduct showed that he was acting
not in the interest of the unit employees but in a manner
directly opposed to and inimical to those interests.
Neither does it advance the General Counsel's position
to urge the Union's right to enter in pursuance of its duty
to administer and enforce the contract for Dille was fully
informed of the facts when he requested admittance.'
Indeed, under the history of its bargaining relationship
with Diniaco and its representation of the maintenance
painters, the Union must have known for years of (and
have acquiesced in) the almost daily practice of painting
structural steel, thus establishing in effect an agreed
contract interpretation. This does not gainsay, of course,
that the Union might properly have sought through
collective bargaining, to negotiate a different contract or
to agree on a different interpretation, but it could not
properly seek admission to Inco's plant to force a change
in the longstanding practice by stopping the job.
Especially is that so when the Union's action was the
direct antithesis of its duty to represent and protect the
interests of the unit employees, its only constituency
within the plant.
I am cited to no case which will support a finding
under the evidence here that Respondent refused to
bargain within the meaning of Section 8(a)(5) by denying
Dille admittance to the plant. The principles of the time
study and refusal to furnish information cases go farthest
toward upholding a union's right to enter to obtain
necessary information "to police and administer existing
agreements," e.g., The Fafnir Bearing Company, 146
NLRB 1583, 1585; J. I. Case Company v. N.L.R.B., 253
F.2d 149 (C.A. 7), but their holdings are without
relevance here for Dille had obtained the information and
Diniaco confirmed it. N.L.R.B. v. Otis Elevator
Company, 208 F.2d 176 (C.A. 2); Fafnir Bearing
Company v. N.L.R.B., 362 F.2d 716, 719 (C.A. 2). A
separate line consists of the grievance cases, but those too
are inapposite, for Dille had no grievance to investigate or
to present and his interests and his actions (including
intended future actions) were inimical to the interests of
the employees whom it was his statutory duty to represent
and protect.'
Though the balancing of interests principle is
applicable, see e.g., Westinghouse Electric Corp., 113
NLRB 954, 957-958, Dille made out no showing of actual
need to enter, and I therefore find that the denial of
access to him under the circumstances here did not
constitute an unreasonable impediment to the Union's
right and duty effectively to represent Diniaco's
employees.
I therefore conclude and find that Respondent did not
refuse to bargain in violation of Section 8(a)(5) and (1) of
the Act as alleged in the complaint and I recommend that
the complaint be dismissed.
The evidence establishes and I find that at the time
Dille sought and was denied admittance by Diniaco he
had fully confirmed the report he set out to investigate
and was aware as well that no grievance existed on behalf
of any of the employees whom the Union represented
within the plant. Furthermore, in proceeding with his
admitted attempts to stop the job (of painting structural
steel), Dille was plainly not seeking to advance the
interests of the unit employees, as he might have done by
`A subsequent letter dated October 17 adds nothing to the case for, in
repeating the request to enter the plant , it refers to the existing contract
and to the necessity to enter in order "to properly represent my members
who are employed by you and who are performing certain work therein."
Since the individual employees had, pursuant to statutory requirement
surrendered their right to self-representation to the Union as their exclusive
bargaining agent, there was imposed on the Union in return the reciprocal
duty of fair representation and to act for and not against those whom it
represented . Steele v Louisville & N R R., 323 U.S. 192, 198-199, 2021