Daniel O'Connell's Sons, Inc.

DANIEL O'CONNELL'S SONS, INCORPORATED 51 2. Southern Illinois District Council, International Ladies' Garment Workers Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Dorothy Jacobs on February 9, 1962, the Respondent did not commit any unfair labor practice in violation of Section 8(a) (3) and (1) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, it is recommended that the complaint be dismissed. Daniel O'Connell's Sons, Incorporated and Omer Fortin and Hoisting and Portable Engineers, Local No. 4, International Union, of Operating Engineers, Party to the Contract Hoisting and Portable Engineers, Local No. 4, International Union of Operating Engineers, and its business agent, Larry P. Salvucci and Omer Fortin and Daniel O'Connell 's Sons, Incorporated, Party to the Contract. Cases Nos. 1-CA-3552 and 1-CB-723. October 10, 1962 DECISION AND ORDER On June 20,1962, Trial Examiner Lloyd Buchanan issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondents 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 attached Intermediate Report. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief and the Respondent Union filed a brief in oppo- sition to the General Counsel's exceptions. 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 Leedom, Fanning, and Brown]. 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 the case, including the excep- tions and briefs, and hereby adopts the findings, conclusions, and recommendation of the Trial Examiner. [The Board dismissed the complaint.] INTERMEDIATE REPORT AND RECOMMENDED ORDER The complaint herein (issued January 30, and amended March 2, 1962, and at the hearing; charges filed August 14 and 16, 1961) alleges that, since about April 1, 1961, the Company has violated Section 8(a)(3) and (1) of the National Labor 139 NLRB No. 13. 672010-63-vol. 139-5 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relations Act, as amended, 73 Stat. 519, by giving effect to an arrangement 1 or prac- tice which requires or causes discrimination against employees or applicants because of nonmembership in the Union, and by discriminating against Fortin because of his nonmembership or the Union's refusal.to approve him for employment; and that the Union has violated Section 8(b)(1)(A) and (2) by compelling the Company to employ only members of or persons approved by it, by maintaining and enforcing an arrangement or practice which requires the Company to discriminate against em- ployees because of nonmembership in the Union, and by causing the Company to dis- criminate against Fortin because of his nonmembership or because of the Union's refusal to clear him. The answers deny .the allegations of violation. A hearing was held before Trial Examiner Lloyd Buchanan at Fall River and Boston, Massachusetts, on March 21 and 28, 1962. Pursuant to leave granted to all parties, briefs have been filed by the General Counsel, the Company, and the Union, the time to do so having been extended. This is one of a series of three cases (each is a consolidated case), the other two involving Coleman Bros. Corporation, 139 NLRB 393, and Dravo Corporation, 139 NLRB 57. In addition to the respective employer respondents, each of the three cases names as respondents the Union herein and its business agent, and Fortin as the Charging Party. The cases were heard at approximately the same time, being scheduled for and opening on successive days. The General Counsel was empowered under the Board's Rules and Regulations to consolidate all of these proceedings, but did not do so. The question arises under the circumstances whether and to what extent he should now be heard to request that notice be taken in all of the proceedings of testimony in any one which is "applicable" to all. That procedure would deny to the other corporate respondents the op- portunity to be heard or to question witnesses. Such a request was made at the close of the Dravo hearing. Whatever the General Counsel's claim in this connection, I stated at the instant hearing and now repeat that I would not ignore testimony in one case which directly affects the credibility of a witness in another, as where the witness testifies contrary to what he has testified elsewhere. In such event the testimony thus noted would be pointed out and counsel given 10 days after service of the Intermediate Report to take steps to meet it-all of this with the limitation that such testimony would not be considered against a party who was not present and represented when it was received ,and which had no opportunity to cross-examine and to meet such testimony. The outstanding impression throughout these cases is that of Fortin's unreliability on the stand although, as will be seen, that alone is not relied on herein. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT (WITH REASONS THEREFOR) I. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED It was admitted and I find that the Company, a Massachusetts corporation with principal office and place of business in Holyoke, Massachusetts, has been engaged as the structural contractor at a jobsite in Somerset, Massachusetts; that it annually pur- chases and causes to be transported in interstate commerce large quantities of supplies and materials, and receives such to the extent of more than $50,000 directly from points outside the Commonwealth of Massachusetts; and that it is engaged in com- merce within the meaning of the Act. It was admitted and I find that the Union is a labor organization within the meaning of the Act. II. THE UNFAIR LABOR PRACTICES Fortin is and has been a member of Local 98 of this same International union, the Operating Engineers. That locals jurisdiction lies in the Worcester area and does not include the Somerset jobsite, which lies within the jurisdiction of the Union herein, Local 4. He is a licensed Massachusetts operator, has operated various machines, including shovels, bulldozers, graders, loaders, cranes, and rollers, and has performed mechanical work on machines. There is no issue here concerning his general experience. Fortin sought work on this job and testified to two conversations, 3 or 4 weeks apart but both in April 1961, with Mathisen, the Company's superintendent on the job. During the first, a Local 98 member whom the Company had brought to this job was operating a machine, and Mathisen allegedly told Fortin that he was having 1 This term is here used inclusively and covers the alternative allegations concerning an oral agreement or understanding. DANIEL O'CONNELL'S SONS, INCORPORATED 53 trouble clearing Paquette. Mathisen also told Fortin at that time that the Company would need many operators eventually and that he should drop in occasionally. The latter suggests that the selection and hiring would be done by the Company, whatever difficulty the Union was allegedly causing with respect to Paquette. In any event, Mathisen's statement is not binding on the Union and does not prove violation by it. Nor, as far as the Company is concerned, did he here discriminatorily refuse to hire Fortin or indicate that he would be unable to hire him. At the time of his second conversation with Mathisen, Fortin observed half a dozen machines on the job and about 10 operators. He testified that he had visited the site almost every day and saw equipment arriving. Fortin later testi- fied that various machines were manned after his second conversation with Mathisen; at the time of that conversation, there were two cranes on the job, one manned and the other for which Mathisen said that he had a Local 98 man. This testimony is quite uncertain sand unclear: whether Paquette was operating the first machine and a second 98 man was to operate the other, or whether some unidentified operator was on the first (his connections and hiring unexplored) and Paquette on the other. What is clear is that Fortin was "confused" (his own term) as he had testified first to half a dozen machines and 10 operators at the time of this second conversation. While as noted, Fortin allegedly went to the site almost every day and by the latter part of April there were about 10 operators, we do not at this stage have any evidence of discriminatory refusal to hire him and only a possible implication from the mere failure to hire. But whether men thus hired had applied before him, whether he was available when men were needed and hired, and the other circum- stances connected with these hirings, we do not to this point know Fortin testified that he then had three conversations with DiPaolo, the master mechanic on the job, a member of the Union. It appears from Mathisen's 'testi- mony that, after DiPaolo was hired, Mathisen would tell him to get operators from the Union, and he would call the Union for men According to DiPaolo, contradict- ing Salvucci, the Union's business agent, and also contrary to Mathisen' s assumption in this connection, he never called Salvucci for operators; he maintains a list or file of applicants and, when Mathisen asks for a man, calls one and takes him to the office, the timekeeper signing the man in for work. DiPaolo maintained that under this procedure he does not hire, and in this he was clearly supported by Mathisen, who testified that he alone has authority to hire. But whether or not DiPaolo's activity constitutes hiring, it is clear that according to both his own and Mathisen's version he plays an important part in the hiring process, acts on behalf of the Company, and is at least held out as a supervisor within the meaning of the Act. There is no evidence that he is an agent of the Union any more than Mathisen was when' he himself called the Union for men early on the job and before DiPaolo was hired. As against the General Counsel and the Union, the duties of a steward as agent of the Union, described by Salvucci in the Coleman case, may be noted in contrast with the master mechanic' s duties as here described. Fortin placed his first conversation with DiPaolo at about the middle of May, the former asking whether DiPaolo was going to do the hiring, and the latter replying in the affirmative and taking Fortin's name, address, and telephone number. Fortin's testimony in this connection does not even suggest that he recognized or suspected discrimination to that time. While we would not rely on his decision of the legal issue presented, his attitude casts light on the facts as he recognized them. Whether he realized that men hired were properly ahead of him for these jobs, or for what- ever reason which we need not guess, he made no complaint. Fortin testified that a week or 10 days later (evidently in the latter part of May, although he was uncertain as to dates ) he again asked DiPaolo for a job and was again asked his name; DiPaolo then allegedly asked whether he was a member of the Union, he replied that he was not, and he was told that there was nothing for him. DiPaolo testified that he has told hundreds of men that there was no job for them. He places applicants' names on a spindle, and the only reason that he has not called Fortin was that he had seen about 75 applicants before him and had not reached his name. DiPaolo denied that he ever checks an applicant's union affilia- tion. It does not appear that Fortin was discriminatorily denied a job at the time of this conversation. As for the suggestion of unlawful practice and anticipatory re- fusal,2 I do not believe that DiPaolo would have or did indicate that employment was based on membership in the Union. Fortin testified further that a week or 10 days thereafter he complained to DiPaolo that a man whom he had not seen before had been hired that morning and that others were being hired although he himself was there almost every day. The 2 Cf The Lummvs Company, 101 NLRB 1628, 1632 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fact of such hiring does not itself prove discrimination. But DiPaolo allegedly replied that he was doing what he could, and added that Salvucci has a mind of his own. His recollection refreshed, Fortin now added that DiPaolo told him that Salvucci had sent down the individual to whom Fortin had referred . DiPaolo testi- fied that he had only two conversations with Fortin: the second, in June, was limited to Fortin's question whether there was anything doing and his own reply, "Nothing yet," and suggestion that Fortin try other contractors on the same site (still within the Union's jurisdiction). To explain -DiPaolo's alleged statement that Salvucci has a mind of his own (we recall DiPaolo's denial, which I do not credit, that he ever called Salvucci for men), Fortin testified to a background conversation with Salvucci in 1960, the latter at that time declaring that he had men of his own who were loafing. Clearly the master me- chanic could not bind the Union. Nor can it be said that his duties in the hiring pro- cedure were such that he could bind the Company by an admission concerning the Union's attitude or its effect. To the extent that the General Counsel argues that from DiPaolo's statement that Salvucci has a mind of his own "may be inferred" the rea- son for employing only members of the Union, the short answer is that what "may be" may with equal validity not be. Most significantly since the General Counsel relies on "the men of my own loafing" phrase to prove the violative tenor of DiPaolo's reference to Salvucci, it has recently been pointed out that such a phrase is "as susceptible of a nondiscriminatory interpretation as a discriminatory interpretation." 3 Finally, Fortin testified that Salvucci had more recently, in the summer of 1961, said to him on another jobsite that he would be the judge of who would and who would not work, and suggested that another contractor nearby would need men. Fortin did not enhance his credibility as he thereafter testified that the references to the men loafing and the statement that Salvucci would be the judge of who works in this territory were made in the same conversation, in the summer of 1961. At this point Fortin contradicted himself in several other respects, which need not now be detailed. (The remarks were not made twice. As in Dravo, Fortin placed the same conversation at different periods.) With Fortin so unreliable, it should not be necessary to point out that even if Salvucci had said that he would judge who was to work (he admitted that he selects a man when a request is received), and even if all applicants were cleared by the Union,4 the testimony here being to the contrary, this could conceivably be based on priority of application. Salvucci testified that at a prejob conference, later placed no March 29 and 30, between representatives of the Company and the Union, the Company stated that it wanted to bring to the job two Local 98 men and Salvucci agreed; and that there was no talk of other men except that, if the Company could not get qualified op- erators, the Union would supply them. As for whether it was agreed at this con- ference that all operators except those two should be obtained through the Union, Salvucci when questioned about this specifically would say no more than that he did not recall such an agreement . The fact is that, except for men who "came with" various pieces of equipment which the Company brought to the job, all operators other than the two local 98 men aforementioned were members of the Union herein although, as we shall see, one was hired directly, not through the Union. Salvucci testified variously that the Company hired operators as they applied for work on the job, not through the Union; then that "they probably got some of them [through the Union]. They would call [him] up and say they needed a man for such and such a thing, and [he] would send them down"; then that he knew men were hired on the job directly because he saw them there and they had not been referred by him. As Mathisen reliably testified, and contrary to DiPaolo, Salvucci declared that it was DiPaolo who called for men on behalf of the Company. If Salvucci contradicted himself again when he later testified that employers from outside the Fall River area, like this Company, are not acquainted with applicants' qualifications and therefore call the Union for men, we have at most evidence of a frequent but not regular or exclusive practice of calling on the Union, without con- comitant proof of discrimination in referrals by the latter. Further bearing on Salvucci's credibility is what appeared to me to be a reckless denial by him that he had known Fortin, much less that he knew that Fortin was looking for a job; followed by his statement that he talks to many men and may have talked to Fortin before. All of the testimony on this point appears to suggest that the Company did call on the Union for men except in March and April, at the beginning of the job, when s Pipe Fitters Local No. 393 , et al. (Alco Products, Inc.), 136 NLRB 492. 4 Ibid. DANIEL O'CONNELL'S SONS, INCORPORATED 55 it was satisfied with the qualifications of three operators and hired them directly. Such a finding is to some extent supported by Mathisen's testimony that, while the Company had agreed to abide by a contract whose relevant hiring provisions are noted in the margin,5 and had called on the Union for men, it was not "unusual" to hire a man directly, i.e., not through the Union. In fact, only one such operator was hired in this manner, on the recommendation in April of a field engineer who knew him. Whatever conclusion may be urged from the fact that this operator was a member of the Union, he was not hired through it or pursuant to the agreement mentioned. On the other hand, suggesting the need for union action (but still not showing violation) is the request noted that the Union clear the two operators whom the Company had brought to the site; and, need or not, Mathisen's testimony that the Company later complied with Salvucci's demands that the Union be used as the source of operators although Mathisen told Salvucci that he "didn't agree with it." If, as the General Counsel recognizes, a written agreement that the Union would be the exclusive source of supply is not violative where the Union's discriminatory refusel to refer an applicant is not shown, it is not clear how violation can be found in the proof of an oral argreement which reflected the Company's desire to get experienced men and which was not fully lived up to, there being no discriminatory refusal. Although absence of specific discrimination earlier and of a prior unlawful practice does not remove the possibility of violation here, not to be overlooked is the fact that Foitin had been employed by a local company which has a contract with the Union. This indicates that in the other situation at least the contract itself was not followed or recognized as constituting the Union the exclusive source of supply; or that the Union nevertheless recommended Fortin, who was not a member; or both We also should note Salvucci's testimony that, in response to Fortin's question, he told the latter that he was free to go to work on the instant job. Since May 1, 1961, there have been approximately 25 hirings, including an un- specified number of "duplicates," i.e., men hired, laid off, then recalled. No claim has even been made of unlawful preference in recalling men laid off rather than hir- ing a new man, like Fortin. It cannot be said that the unknown number of new hirings which this figure of 25 represents suggests violation when compared with DiPaolo's uncertain testimony concerning the number of applicants whose names he took. Some 75 inquired concerning jobs,-but not all asked to be listed. DiPaolo testified that he took 30 or 35 names between May 1 and the third week in May, when he took Fortin's name,6 then that the number was 25 to 28; and that he has taken approximately 15 names since. Not only was DiPaolo evidently guessing at these numbers, but his confusion was manifest as he first stated that, of the 30 to 35 names on his spindle when Fortin's was taken, that name was the 20th or 23d; regardless of the question here put to DiPaolo and his answer, it must be clear that, at the time when Fortin's name was taken, it was the last on the then-existing list, there being no suggestion or claim that he was preferred over prior applicants. If there be any meaning in the approximation, Fortin's name was at that time approximately 26th or 29th. If 10 or 12 men have since been put to work, Fortin would have moved up to a number 14 or 19 position, which with all of these approximations is not inconsistent with DiPaolo's statement that he is now about 14th. On the other hand, I find it difficult to reconcile with this the further guess that there are now "probably 18" names on the list and that Fortin's "could be around 14." If 15 names were added after Fortin's why are there only about 4 behind him now? How much of this variance is ascribable to the guessing game, we do not know. No attempt was made to obtain an explanation. Nor does the General Counsel's attempt to analyze these figures provide sufficient basis for assuming discrimination, i e , that some who were behind Fortin on the list were given jobs, and discriminatorily so We can adopt the General Counsel's conclusion: "The figures supplied by DiPaolo are not clearly conclusive of anything." Coming from one who elicited this information, and on whom the burden of proof rests, such a rA finding with respect to the allegediv exclusive nature of the hiring provision would be obiter While the Union is declared to he "the established and prime source" of operators, and the Company agrees to notify the Union of its needs, reference is made to "workmen procured by the Employer from other sources " Maintaining that it did not agree at the prejob conference to hire all men through the Union (in contradiction to his earlier affidavits as I construe it), Mathisen declared that it "Indicated that [it] would probably hire locally" 9 As noted Fortin's uncertainty was also manifest when he appeared to place this in the latter part of May 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conclusion indicates defeat in this connection and suggests that the information was sought at the hearing in the Micawber-like hope and on the bare possibility that "something would turn up." The Company's assistant superintendent of equipment, O'Brien, provided exact figures on the number of operators employed, but since May 1, not the third week in May: that number is 22. Pursuing this numbers game further, it may be noted that the total of 22 could be reconciled with Fortin's approximation of 10 at the end of April (conceivably early in May) and DiPaolo's guess of 10 to 12 added after he took Fortin's name. A caution is here warranted: Some of the 10 to whom Fortin referred may have been men who came with the machines and were not hired by the Company; on the other hand, men may have been hired between the dates indefinitely fixed by Fortin as the latter part of April and his third conversation with DiPaolo 3 or 4 weeks later or about the third week in May. The valiant attempt to elicit data which would indicate discriminatory failure to hire or refer Fortin has been followed by this fruitless attempt to analyze that data to a reliable conclusion. The figures are inexact, unreliable, and indeed inconclusive With or without consideration of the collective-bargaining agreement mentioned in the complaint but not claimed to be unlawful, either as background or as alleged motivation for the violations claimed, determination must be made on the basis of the facts adduced with respect to the acts by the Company and the Union which are alleged to be violative. The various alternative violations have not been proved. To the extent that the Company hired or sought to hire directly, no unlawful prac- tice or refusal of Fortin has been shown. Violation has no more been shown to the extent that the Company looked to the Union for men, or in the Union's activities. Despite or with the elements of doubt with respect to the credibility of various witnesses, including Fortin, as indicated, the testimony taken piecemeal or as a whole does not show an unlawful arrangement or practice, or discrimination against Fortin specifically. Nor does it appear that the Union caused or attempted to cause discrimination or that it interfered as alleged.'+ Lack of a job may have made Fortin unreasonably (considering the employment situation) impatient. On the other hand, proof which was not here available might support his suspicion and claim of discrimination. One may wonder whether, as distinguished from the absolute preferment of union men, alleged but not proved, there was instead of an actual plan to prevent Fortin's employment, a limited and unlawful preference to members of this Union. But although Fortin testified that he applied very early and before he saw various men put to work, we have no proof that those who were hired had applied after him. Thus with respect to neither union referral nor direct company hiring has discrimination been shown because of membership in the Union or lack thereof. Whether continued failure to obtain a job and detailed investigation thereof will in the future disclose violation of the Act remains to be seen. One may hazard the guess that Fortin will soon find an opportunity for employment (if he has not already) with one of various employers as one was opened to him at Coleman through direct hiring; or by the process of working up, as he evidently has been, to the head of a list. Whatever suspicion may exist because of the fact of Fortin's unemployment may be effective in prompting a thorough investigation; but it is not proof or a sufficient substitute for proof. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Company is engaged in commerce within the meaning of the Act. 2. Hoisting and Portable Engineers, Local No. 4, International Union of Oper- ating Engineers, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Company has not engaged in unfair labor practices within the meaning of Section 8 (a) (3) or (1) of the Act. 4. The Union has not engaged in unfair labor practices within the meaning of Section 8 (b) (1 ) (A) or (2) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that the complaint be dismissed in its entirety. 7 Compare the evidence In Yuba Consolidated Industries, Inc., 136 NLRB 683; Local 41, Sheet Metal Workers (Iowa Sheet Metal Contractors , Inc.), 136 NLRB 787.