Bricklayers and Masons Int'l Union of America

BRICKLAYERS AND MASONS INT'L UNION OF AMERICA 691 Bricklayers and Masons International Union of America, AFL- CIO, Local No. 10 and Its Business Agent Robert Barrett, Jr. [G. L. Rugo & Sons, Inc.] and Luigi Alberti. Case No. 1-CB- 514. August 2/f, 1959 DECISION AND ORDER On May 26, 1959, Trial Examiner Max M. Goldman issued his In- termediate Report in the above-entitled proceeding, finding that the Respondents engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter the Respondents filed exceptions to the Intermediate Report. Pursuant to Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Bean, and Fanning]. 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 Interme- diate Report, the exceptions, and the entire record in this case and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondents, Bricklayers and Masons International Union of America, AFL-CIO, Local No. 10, its agents, officers, successors, and assigns, and Robert Barrett, Jr., its business agent, shall : 1. Cease and desist from : (a) Causing or attempting to cause the Company, G. L. Rugo & Sons, Inc., its officers, agents, successors, or assigns, or any other employer, to discriminate against its employees in violation of Section 8(a) (3) of the Act. (b) Restraining or coercing the employees of the Company or any other employer by enforcing or threatening to enforce a fair represen- tation agreement requiring the employment of members of Bricklayers and Masons International Union of America, AFL-CIO, Local No. 10. (c) In any manner restraining or coercing employees in the exer- cise of the rights guaranteed in Section 7 of the Act, including the right to refrain from engaging in any or all of the activities guaran- teed thereunder, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8 (a) (3) of, the Act. 124 NLRB No. 89. 692 DECISIONS CF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Notify the Company in writing that they will not enforce the fair representation agreement requiring employment of members of the Respondent Union. (b) Notify the Company and Luigi Alberti in writing that they have no objection to Alberti's employment and that they request the Company to offer Alberti immediate and full reinstatement to his former or substantially equivalent position. (c) Post at the Respondent Union's offices and meeting halls in Lawrence, Massachusetts, copies of the notice attached hereto marked "Appendix A." 1 Copies of said notice, to be furnished by the Regional Director for the First Region, shall, after being duly signed by the Respondent Union's representative and by Respondent Robert Bar- rett, Jr., be posted by the Respondents immediately upon receipt thereof, and be maintained by them for 60 days thereafter in con- spicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (d) Promptly mail to said Regional Director signed copies of Ap- pendix A for posting, the Company willing, at its Boston and Law- rence, Massachusetts, facilities. 3. In addition, the Respondent Union 2 shall take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Make whole Luigi Alberti for any loss of pay he may have suffered as a result of the discrimination against him, in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (b) Reimburse all bricklayers, bricklayer apprentices, and laborers who are or who have worked on the Company's Bon Secour Hospital project at Methuen, Massachusetts, for all moneys illegally received from them, in the manner and to the extent set forth in the section of the Intermediate Report entitled "The Remedy." 4. The Respondents shall notify the Regional Director for the First Region in writing, within 10 days from the date of this Order, what steps the Respondents have taken to comply herewith. IIn the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." a Although we find that Business Agent Robert Barrett, Jr ., violated Section 8 (b) (1) (A) and Section 8(b) (2) of the Act, we will not order him to make whole Luigi Alberti or reimburse the employees on the Bon Secour Hospital project , because he merely acted as agent of the Respondent Union. ' Local 420, United Association of Journeymen and Apprentices of the Plumbing and Pipe fitting Industry of the United States and Canada, APL, et al. (J. J. White, Inc.), 111 NLRB 1126. BRICKLAYERS AND MASONS INT'L UNION OF AMERICA 693 APPENDIX A NOTICE TO ALL MEMBERS OF LOCAL No. 10, BRICKLAYERS AND MASONS INTERNATIONAL UNION OF AMERICA, AFL-CIO, AND TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the Labor Manage- ment Relations Act, we hereby notify you that : WE WILL NOT cause or attempt to cause G. L. Rugo & Sons, Inc., its officers, agents, successors, or assigns, or any other employer, to discriminate against employees in regard to hire or tenure of employment, in violation of the Labor Management Relations Act. WE WILL NOT restrain or coerce the employees of the Company, or of any other employer, by forcing or threatening to enforce a fair representation agreement requiring the employment of our members. WE WILL NOT in any manner restrain or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act, including the right to refrain from engaging in any or all of the activities guaranteed thereunder, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as author- ized by Section 8(a) (3) of the Act. WE WILL notify Luigi Alberti and the Company in writing that we have no objection to the employment of Luigi Alberti, and that we request the Company to offer him immediate and .full reinstatement to his former or substantially equivalent .position. WE, the undersigned Union, WILL make whole Luigi Alberti for any loss of pay suffered as a result of the discrimination against him. WE, the undersigned Union, WILL reimburse all bricklayers, bricklayer apprentices, and laborers, who are now or who have worked on the Bon Secour Hospital project for all moneys ille- gally received. AFL-CIO, LOCAL 10, BRICKLAYERS AND MASONS INTERNATIONAL UNION OF AMERICA, Labor Organization. Dated---------------- By------------------------------------- (Representative) (Title) ROBERT BARRETT, JR., Business Agent. This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. ,694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding against Bricklayers and Masons International Union of America, AFL-CIO, Local No. 10 and its Business Agent Robert Barrett, Jr., herein called the Respondent Union or the Union, involves Section 8(b)(1) and (2) allegations, and was initiated by Luigi Alberti, herein called the Charging Party or Alberti. At the time of the events involved Alberti was employed by G. L. Rugo & Sons, Inc., herein called the Company. Upon the entire record in the case, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY G. L. Rugo & Sons, Inc., maintains its principal office and place of business in Boston, Massachusetts, where it is engaged as a general contractor in the building and construction industry. The Company annually has construction contracts in the State of Massachusetts valued at about $3,000,000, in connection with which materials valued in excess of $100,000 are shipped directly to it from points outside the State of Massachusetts. It is found that the Company is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Bricklayers and Masons International Union of America, AFL-CIO, Local No. 10, is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The issues The issues presented are: (1) Was there an agreement or an established practice between the Company and the Union under which the Company was obligated to employ at least one-half of its bricklayer crew through the Union or who were members of the Union; (2) in the event that there is such a practice or agreement, did Luigi Alberti lose his employment with the Company or or about August 13, 1958, as a result of the Union's enforcement of the above agreement or practice; .or (3) whether or not there was such an agreement or practice, did Luigi Alberti lose his employment with the Company on the above date because he was not a member of the Union. B. The events At about the end of March 1958, the Company began the bricklaying work for an addition to the Bon Secour Hospital at Methuen, Massachusetts. About a week after this work started, Garry Curtain, the then business agent of the Union which is located at Lawrence, talked to John Alberti, the Company's foreman. As a result of this conversation it was agreed that the Company would maintain good conditions on the job, employ at least 50 percent of its men who were members of the Union-which was considered to be fair representation, and make requests for men through the job steward. In July, Robert Barrett, Jr., the current president and business agent of the Union, saw Foreman Alberti at the job and complained that the Union did not have a fair representation on the job. Foreman Alberti explained that the bricklayers working there had come to the job through the job steward. On about August 8, the Company decided to lay off bricklayers and, of the crew of approximately 13, to keep the foreman and 4 men. Foreman Alberti so in- formed the job steward and Barrett, who were both employed on the job. A dis- pute arose between the foreman and Barrett as to who among the employees was to be counted in the computation of at least 50 percent of the Union to constitute a fair representation. The problems thus presented related to such matters as the status of the foreman, bricklayers who were members of other locals but who were hired through the job steward, and apprentices. No agreement was reached be- tween Foreman Alberti and Barrett. On the night of Friday, August 8, the Union held a meeting and according to its minutes, "It was agreed that the business agent will go to the Bon Secour Hospital and get fair representation at Local No. 10 [the Union] or stop the job." The following Monday morning, August 11, Foreman Alberti and Barrett fur- ther discussed the fair representation matter and no agreement was reached. Bar- rett thereupon instructed the men not to work and by about noon the bricklaying work had come to a halt. BRICKLAYERS AND MASONS INT'L UNION OF AMERICA 695 No bricklaying work was performed on August 12 by members of Local Union No. 10. On August 13, Barrett and Foreman Alberti again took up the matter of fair representation and Barrett pointed out that the Company had the alternative of hiring a union man or laying off one of its other employees. That day the Com- pany laid off a member of another local, Luigi Alberti, Foreman Alberti's brother, and Barrett thereupon instructed the union men to return to work. C. The conclusions The Union's position is that it was not insisting that its members be employed on the job but that men from the Lawrence area be employed and that it was following a Massachusetts statute, chapter 461 (1935), which provides for certain preferences and the establishment of minimum wages on public works, and requires that, "Each county, town or district in the construction of public works, or persons contracting or subcontracting for such works, shall give preference to veterans and citizens who are residents of such county, town, or district." This statute cannot, under Section 10(a) of the Act, provide a defense to conduct violative of the Act. It appears, moreover, that the job was financed by a religious organization and not by the State or any of its subdivisions as a public works. Practically every qualified mechanic in the area is a member of the Union, and there are members of the Union who are not residents of Lawrence. In view of the foregoing, particularly the Union's minutes quoted above, it is found that the Union engaged in a strike in order to enforce its agreement with the Company to have fair representation or at least one-half of the men employed on the job and that Luigi Alberti lost his employment as a consequence of the enforcement of this agreement and his nonmembership in the Union. It is accordingly found that Luigi Alberti was laid off on August 13, 1958, in violation of Section 8(b)(1) (A) and (2) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Union set forth in section III, above, occurring in connection with the operations of the Company described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent Union engaged in unfair labor practices it is recommended that the Respondent Union cease and desist therefrom and take cer- tain affirmative action designed to effectuate the policies of the Act. Having found that Luigi Alberti was discharged as a consequence of the Union's enforcement of its fair representation agreement in violation of Section 8(b) (1) (A) and (2) of the Act, and as it does not appear that the Company, the other party to this agreement, was notified of this proceeding, it will be recommended that the Union offer the Company in writing to cease giving effect to its fair representation agreement. It will be further recommended in order to expunge the illegal effect of this agreement, that the Union refund all moneys collected in accordance with the remedy in J. S. Brown-E. F. Olds Plumbing & Heating Corporation, 115 NLRB 594. Having found that Luigi Alberti was discriminatorily laid off on August 13, 1958, it will be recommended that the Union notify Alberti and the Company in writing that it has no objection to his employment by the Company, and that the Union make Alberti whole for any loss of pay he may have suffered from the date of the discrimination against him until 5 days after the sending of such notification or the completion of the bricklaying work on the job involved, whichever is sooner. Such loss of pay shall be computed in accordance with the Board's F. W. Woolworth Company formula (90 NLRB 289). Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Bricklayers and Masons International Union of America, AFL-CIO, Local No. 10, is a labor organization within the meaning of the Act. 2. The Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1) (A) and Section 8(b)(2) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.]