Bricklayers, Masons and Plasterers', Etc.

BRICKLAYERS, MASONS AND PLASTERERS', ETC. 751 Bricklayers, Masons and Plasterers' International Union of America, Bricklayers, Masons, Marble Masons, Tile Layers and Terrazza Workers Union No. 28, AFL-CIO [Plaza Build- ers, Incorporated] and Richard Allen, Kenneth Allen, and Walter L. Smith . Cases Nos. 6-CB-798, 6-CB-799, and 6-CB- 801. November N7, 1961 DECISION AND ORDER On August 15, 1961, Trial Examiner Stanley Gilbert issued his In- termediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in certain unfair labor practices and recommending that the complaint be dismissed, as set forth in the Intermediate Report attached hereto. Thereafter, the General Coun- sel 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 [Chairman McCulloch and Members Rodgers 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 Intermedi- ate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner.' _ [The Board dismissed the complaint.] 1 Respondent's request for oral argument is denied as, in our opinion, the entire record in these cases adequately present the issues and positions of the parties INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This matter was heard before the duly designated Trial Examiner on July 7, 1961, at Erie, Pennsylvania. The complaint herein alleged, in essence, that Respondent violated Section 8(b)(2) and (1)(A) of the Act by causing Plaza Builders, In- corporated, to lay off three of its employees (the Charging Parties herein) because of their lack of membership in Respondent in violation of Section 8(a) (3) of the Act. In its answer Respondent denied all allegations with respect to conduct in violation of the Act. At the close of hearing both General Counsel and Respondent waived oral argu- ment, but filed briefs within the time designated. Upon the entire record in this case, and upon my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE EMPLOYER Plaza Builders, Incorporated (hereinafter referred to as the Employer or Com- pany), is a Pennsylvania corporation with principal office and place of business in Youngstown, Ohio.' The Company is engaged in the business of constructing 1 There being no objection, motion of General Counsel was granted to amend complaint by changing the allegation of State of incorporation of the Company from Ohio to Pennsylvania 134 NLRB No. 60. 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shopping centers and industrial buildings in the States of Ohio, Maryland, Michigan, and Pennsylvania, one such project being that involved herein, located in Erie, Pennsylvania, and called the Erie Central Mall. During the year preceding the filing of the complaint, the Company, in the course and conduct of its business operations, purchased, transferred, and delivered to its Erie Central Mall jobsite building materials valued in excess of $100,000 of which materials valued in excess of $50,000 were transported to said jobsite directly from points outside the State of Pennsylvania. Respondent concedes and I find that the Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent concedes and I find that it is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The Issue Litigated General Counsel contends that Respondent violated Section 8 (b) (2) and (1) (A) of the Act by demanding of the Employer that in making layoffs it give job prefer- ence to members of Respondent, as a result of which the Charging Parties were dis- charged. Respondent, in its brief states: It is conceded that Business Agent Furber and Steward Kohl [of Respondent] attempted to cause and did cause the Company to lay off the three (3) charging parties for some reason. It is likewise conceded that the Company did lay off the three (3) charging parties pursuant to the directions and instructions of Business Agent Furber and/or Steward Kohl. If the reason or motivation was Union membership in Local No. 28, the Union has violated the Act as charged in the Complaint. If the reason or motivation was geographical residence or on the basis of area men, the Union has not violated the Act and the Complaint should be dismissed. The only issue framed by the parties in their briefs is whether the criterion for job preference demanded by the Respondent was membership in Respondent or residence in Erie. The Facts The Company started engaging bricklayers for the Erie Central Mall project, a complex of some 23 stores, early in November 1960. By the early part of December the employment had reached a peak of approximately 27 bricklayers, the large majority of whom were members of Respondent. About six or seven, including the Charging Parties, were members of sister locals of the same International Union and paid a "permit fee" to the Respondent. In order to continue to lay brick when the temperature falls below a certain point, various steps must be taken including the erection of a protective covering over the working area. On December 12, 1960, the temperature fell below the critical point thereby limiting the work to the area which had been prepared for such a contingency. The area was only large enough to permit approximately nine bricklayers to be used. Those bricklayers who reported to work that morning were so advised. They held a meeting in a shanty on the project site and discussed .the situation. The mem- bers of Respondent who were present, including the job steward, Aloysius C. Kohl, decided by vote that either all bricklayers worked or none of them would work. Those men present who were not members of the Respondent abstained from par- ticipating in this action, but agreed to abide by the result reached. The bricklayers then left the site and Kohl advised Frank M. Floryan, the Company's superintendent on the project, of the bricklayers' decision. At Floryan's request, Wilbur Furber, president and acting business agent of Re- spondent, came to the site that day to confer with him. Floryan, Furber, Kohl, and James P. Osborne, the Company's brick foreman, were present at this conference. Floryan told Furber of the problem raised by the bricklayers' decision and that he thought their action was improper. Floryan testified that Furber agreed as to the impropriety of the bricklayers' action and promised to talk to the men the next morn- ing. Floryan further testified that Furber told him the reason they were taking such a stand, in his opinion, was "that there was a great deal of unemployment in Erie and, therefore if I could see fit to employ local men he felt sure that the problem would be solved. . . ." The next morning Furber met with those bricklayers who were present at the site. Since the temperature was even lower than that of the previous day, only approxi- BRICKLAYERS, MASONS AND PLASTERERS', ETC. 753 mately one-third of the full complement of bricklayers reported. Furber then met with Floryan and Osborne and informed them that the men would prefer that all of the,bricklayers worked, but if the weather did not permit it, the men would work, providing Floryan would give the local men "as much preference as possible." Floryan then told Osborne to select the men and "that where ever the local men were as competent as out-of-town men that he was to select local men... .. According to Osborne, nine men were put to work about 9 or 9:30, including one "out of town" man. Shortly thereafter the three Charging Parties, Richard Allen, Kenneth Allen, and Walter L. Smith, having discovered that bricklayers were working, came to the site.2 When they asked Osborne if there was any work for them, he informed them that Furber had said that Erie men had to go to work first .3 At their request, Furber came to the site and conferred with the Charging Parties. Furber told them that he had not requested that they be laid off, but that he had asked that preference be given to "Erie" or "local" men. They then talked to Osborne again who told them that the only alternative was to give them their money. Osborne testified that, since they were from out of town, he did not want them "staying around" and "had no choice but to give them their money." Shortly after lunch they came back and received the wages due them. CONCLUSIONS In his brief General Counsel analyzes the testimony to demonstrate that the criterion for job preference which Furber indicated was membership in the Respondent. However, in doing so General Counsel equates the terms "Erie men" and "local men" with the term "members of Local 28." While it is true that the record discloses that all "Erie men" or "local men" were, in fact, "members of Local 28," nevertheless it does not disclose that Furber, in asking for preference, used the latter term. Osborne and Floryan testified that Furber did not use such -a term nor did they understand him to be asking for a preference for the Local 28 members, as such. In order to accept General Counsel's position it is 'necessary to conclude that Furber intended by his statement to Floryan and Osborne to obtain a preference based on membership in Respondent, rather than on residence in the area. True, the criterion of residence in the area could only be met by members of Respondent, but I am not satisfied that this coincidence, of itself, would render such a conclusion appropriate. Floryan testified that, early in November, when the Company requested brick- layers for the first time, he had "quite a discussion" with Furber about the unem- ployment situation in Erie and that Furber voiced the opinion that, since the project was being financed with local funds, preference should be given in hiring to local men. He was clearly referring to residents of the area rather than members of Respondent, since it was evident at the time that the Company would have to find bricklayers outside the membership of Respondent in order to fill its requirement. Besides members of other locals, 'Respondent hired two men through the State employment service who then became members of Respondent. There is nothing to indicate that the policy Furber sought to have the Company follow in its layoffs on December 13 was not the same as that which he expressed in early November. I have not overlooked Osborne's testimony on cross-examination by General Coun- sel that, in a pretrial statement he made to the Board investigator, he said that he selected "Local 28 bricklayers" for retention because he "wanted to avoid trouble with Local 28 and complete the job." However, he also testified that all the men on the job who were residents of Erie were members of Local 28. In view of this and of his testimony that Furber did not make any reference to Local 28 men, I do not believe his pretrial statement, without more, is sufficient to establish that 2 They had not reported at 8 a.m , the normal starting time, because they assumed that, in view of the low temperature, no one would be working in accordance with the "all or none" decision of the previous day. 3 Although Richard Allen testified on direct examination that Osborne `said "we have to put on Local 28 members first," when questioned by the Trial Examiner he testified that Osborne stated that the union representative said "that Erie men had to be given a preference, had to be put to work first." Kenneth Allen testified that Osborne-told hi-m and the other two'that Furber had said "All Erie men had to go to work first " Osborne testified that he, could not recall using the term "members of Local Union 28," as was first testified to by Richard Allen 630849-62-vol 134-49 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Furber indicated to the Company that membership in the local and not local residence was to be the criterion. I am not of the opinion that the record would support the conclusion that the General Counsel has sustained the burden of proving that Respondent sought to have the Company give job preference based upon the criterion of membership in Respondent with the resulting discharge of the three Charging Parties because of their nonmembership status. I cannot probe Furber's mind to determine whether he desired to obtain job preference for members of Respondent and realized that he could accomplish it by the pretext of asking for preference on the basis of residence, since the effect would be the same. The only testimony in the record which sheds any light on whether it was or was not a pretext was Floryan's testimony of his conversation with Furber in early November which would indicate that, at least at that time, Furber, in urging a preference for local men, was not using it as a pretext to secure preference for Respondent's members. The Respondent concedes that it caused the discharge of the two Aliens and Smith, but contends that the reason therefor was not their lack of membership in Respondent but their lack of residence in the area and that its conduct based on such motivation was not in violation of the Act. Absent any finding •of pretext or sham, I am of the opinion that preferential hiring or job retention based upon an objective criterion such as area residence, particularly in the construction industry, would not be violative of the Act. The legislative history of Section 8(f) (4) of the Act with reference to employment priorities in union agreements in the con- struction industry demonstrates that such an objective criterion is to be permitted. In Senate Report No. 187 on S. 1555, of April 14, 1959, it is stated: "Such criteria as are spelled out in the bill are not intended to be a definitive list but to suggest objective criteria which shall be applied without discrimination. Thus it is per- missible to give preference based upon seniority, residence or training. " Legislative History of the Labor-Management Reporting and Disclosure Act of 1959, p. 424. The Supreme Court, in Local 357, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Los Angeles-Seattle Motor Express) v. N.L.R.B., 365 U.S. 667, indicates that discrimination in employment, as such, by employer or union is not outlawed, but that the validity depends on the "-true purpose" or "real motive." In the absence of a finding herein that the motive of Respondent was to seek job preference for its members, I do not believe it appropriate to find a violation of the Act, even though Respondent's conduct resulted in a benefit to its members. General Counsel's brief is silent on this point. In view of the above findings and conclusions, it appears appropriate to recommend that the complaint be dismissed in its entirety. CONCLUSIONS OF LAW 1. Plaza Builders, Incorporated, is engaged in commerce within the meaning of the Act. 2. Respondent is a labor organization within the meaning of the Act. 3. The Respondent has not committed unfair labor practices as alleged in the complaint. [Recommendations omitted from publication.] Plaskolite, Inc. and Textile Workers Union of America, AFL- CIO. Cases Nos. 9-CA-2033 and 9-RC-41225.1 November V,1961 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION On June 30, 1961, Trial Examiner Samuel Ross issued his Inter- mediate Report in Case No. 9-CA-2233, finding that the Respondent 1 Because the findings in the unfair labor practice proceeding effectively dispose of the issues in the representation case, the Board hereby orders that Cases Nos. 9-CA-2233 and 9-RC-4225 be , and the same hereby are , consolidated for purposes of decision. 134 NLRB No. 63.