Furnco Construction Corp.

FURNCO CONSTRUCTION CORP. Furnco Construction Corporation and Emmett Rogeirs and Clarence Frazier Local 41, Laborers International Union of North America and Emmett Rogers and Clarence Frazier. Cases 13-CA-8222, 13-CA-8277, 13-C13-2383, and 13-CB-2419 January 13, 1969 DECISION AND ORDER BY MEMBERS BROWN, JENKINS, AND ZAGORIA On August 26, 1968, Trial Examiner John F. Funke issued his Decision in the above-entitled proceeding, finding that the Respondents had not engaged in the unfair labor practices alleged in the complaint and recommending dismissal of the complaint in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel[ filed exceptions to the Trial Examiner's Decision together with a supporting brief, and Respondent Union filed a reply brief. 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 and briefs, and the entire record in this case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations. ORDER Pursuant to the provisions of Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the complaint herein be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN F. FUNKE, Trial Examiner- Upon a charge and an amended charge in Case 13-CA-8222 filed on January 22 and April 4, 1968, respectively, by Emmett Rogers, herein Rogers, and upon a charge filed in Case 13-CA-8277 on February 16, 1968, by Clarence Frazier, herein Frazier, against Furnco Construction Corporation, herein Furnco, the General Counsel issued complaint dated April 30, 1968, alleging Furnco violated Section 8(a)(1), (3), and (4) of the Act. Upon a charge and an amended charge in Case 13-CB-2383 filed on January 18, 1968 and on April 1, 1968, respectively, by Rogers, and upon a charge in Case 13-CB-2419 filed February 19, 1968, by Frazier against 93 Local 41, Laborers International Union of North America, herein Local 41, the General Counsel issued complaint dated April 30, 1968, alleging Local 41 violated Section 8(b)(l)(A) and (2) of the Act. On the same day the General Counsel issued an order consolidating the cases for hearing.' Furnco and Local 41 denied the commission of any unfair labor practices 2 This proceeding with the General Counsel, Furnco and Local 41 represented was heard by me at Chicago, Illinois, on July 1, 1968. At the close of the hearing the parties were given leave to file briefs and briefs were received from all parties on August 5. Upon the entire record' in this case and from my observation of the witnesses while testifying, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF FURNCO Furnco is a New York corporation maintaining its office and principal place of business at Buffalo, New York. Furnco is engaged in the construction of coke ovens in the states of Florida, Pennsylvania, Illinois, and Indiana. The operation involved in this proceeding was the construction of coke ovens for Youngstown Sheet and Tube Company at East Chicago, Indiana, herein known as the Youngstown project. In the course of the past calendar year Furnco caused to be delivered to the Youngstown project materials valued in excess of $50,000 from places outside the state of Indiana. Furnco is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Local 41 is a labor organization within the meaning of the Act. Local 269, Laborers International Union of North America, herein Local 269, is a labor organization within the meaning of the Act. III. THE ISSUES The issues set forth in the complaint are simple and were succinctly stated by the General Counsel in his opening statement. In substance the General Counsel stated that: 1. Local 41 violated Section 8(b)(1)(A) and (2) of the Act on October 30, 1967, by refusing to refer Rogers and Frazier to Furnco because Rogers had previously filed unfair labor practice charges against Furnco and was considered a troublemaker. (Germane to this issue is the question whether Local 41 operated an exclusive hiring or referral hall.) 2. Furnco discriminated against Rogers and Frazier at the jobsite during October because Rogers had previously filed unfair labor practice charges against Furnco and thereby violated Section 8(a)(1), (3), and (4) of the Act.4 'At the hearing both complaints and answers were amended as to matters not substantially affecting the issues 'Motions were made at the close of the hearing by Furnco and Local 41 to dismiss the complaint. These motions are disposed of in accordance with the recommendations herein. 'General Counsel's motion to correct the record is granted 'Rogers had filed unfair labor practice charges against Furnco in 1964 The charges resulted from a dispute between Rogers and a Furnco 174 NLRB No. 19 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Furnco, with the knowledge that Local 41 had discriminated against Rogers and Frazier by its refusal to refer them, had acquiesced in such refusal and thereby violated Section 8(a)(1), (3), and (4) of the Act. IV. THE UNFAIR LABOR PRACTICES A. The Facts 1. Background Furnco commenced construction of coke furnaces for Youngstown at its East Chicago site in October 1967, and completed the work sometime in January 1968. The jobsite was within the territorial jurisdiction of Local 41 with respect to the employment of laborers. Eugene Trippeer, business manager of Local 41, testified that he had the usual prejob discussion with representatives of Furnco and that they agreed to abide by the terms of a "Working Agreement" (Joint Exhibit No. 1) between the area general contractors and Local 41. In this agreement the Employer recognized Local 41 as exclusive representative of all construction laborers. The agreement, page 2, contained the following provision with respect to hiring: HIRING PROCEDURE In the employment of men, no applicant shall be discriminated against for membership or non-membership in the Union. When the Employer has requested the Union to furnish men for such a job, such men shall be referred by the Union on a non-discriminatory basis from an unemployment list maintained by the Union The Employer may call the Union for an individual by name, provided that he is on the Unemployment list and is not employed by another Employer All applicants for employment may be required to furnish the employer satisfactory evidence of their qualifications and skill from any source that is recognized as a proper source, not limited to the Union, and copies of such evidence shall be kept by the employer and the local union. The employer shall have the right to reject any applicant for employment who is unable to thus establish his qualifications and skill necessary to perform the work required by the employer or for any other reason. The employer shall have the right to determine the competency and qualifications of his employees and the right to discharge accordingly. The employer and the Local Union shall both post in such places as notices are customarily posted a copy of this Article An appellate procedure shall be established which will have representation of the Union, the Employer and an impartial chairman, appointed jointly by the Employer and the Union, for the purpose of hearing grievances of applicants for employment and rendering decisions which shall be final and binding. During the period critical herein Al Urbanski was construction superintendent for Furnco, Joseph Catanio, known as Mustache Joe, was general foreman and Thomas Green was night general foreman. Edward Ballock was shop steward on the jobsite for Local 41 and representative It was stipulated by the parties that a complaint was issued and a settlement agreement executed Trippeer was in charge of its hiring hall. A great quantity of testimony was taken with respect to the hiring practice at the Youngstown project, most of it of little relevance to the issues of the case. Trippeer for Local 41 and Catanio and Green for Furnco were in substantial agreement as to the practice, although the testimony is not free from confusion. Trippeer testified., that if union members were hired directly from the union hall they would be given introduction slips which would be picked up by Ballock when they reached the jobsite. As to those who were hired at the jobsite, they usually were sent to the hall the next day to receive their introduction slips. ' It is nowhere alleged that the hiring clause was illegal or that the hiring practice was discriminatory, except as to Rogers and Frazier. 2. The refusal to hire Rogers and Frazier Both Rogers and Frazier were members of Local 269, not of Local 41. Rogers testified that he first worked for Furnco in 1964 at a Wisconsin Steel project in Chicago It was at this jobsite that the dispute above referred to occurred. The dispute appears to have been over 4 hours' pay and a steward named Brown of Local 269 gave Rogers some money (whether it was the disputed pay is not disclosed) and Rogers was laid off.' Rogers testified that he again worked for Furnco at a project at Sparrow's Point, Maryland, in 1965, for a period of 3 weeks At the time he was laid off he was told by Al Urbanski, superintendent for Furnco on that job that if he (Urbanski) had known he was "the character that had filed the charges against the company I never would have got the job " In 1966 Rogers again worked on a Furnco job in Chicago and was laid off after 3 days because the job ran out. On or about October 3, 1967, Rogers applied for work with Furnco at its Youngstown project. He went out on a bus from Local 41 with other craftsmen and saw Al Urbanski who told him they were not hiring then, but would be in another week ' From that date until October 30 Rogers reported to the Local 41 hall everyday but received no referral to any job. On October 30, the date of the alleged discrimination, Rogers went to the jobsite at about 6:15 in the morning. He saw Mustache Joe (Catanio) and with him were Clarence Frazier, John Flowers and John Young.' Catanio told them Furnco would be hiring 15 men that day so Rogers, Frazier and Flowers left for the union hall. Catanio told Young to go to work. When they reached the hall there was a line of about five or six men in front of the business agent's office and they joined the line, Rogers, Frazier and Flowers in that order. In a few minutes Ballock came out and called out the names of those who preceded Rogers in line. These men went into 'The purpose of the introduction slip was to have a record of the men employed since the contract required payments of 10 cents per hour to Local 41 's Welfare fund and 15 cents an hour to its pension fund for each hour worked by employees covered by the agreement. Payments. were made by the Employer `Rogers denied to Brown that he had been "raising hell about four hours pay „ 'At about this time Rogers also saw Charlie Larkin and Thomas Green, night supervisor and night general foreman , respectively , and was told they were not hiring. There is no testimony by Rogers that on either of these visits he saw other laborers hired 'Rogers did not go out to the jobsite with Frazier, Flowers and Young FURNCO CONSTRUCTION CORP. the office with Ballock and then left for the jobsite. Rogers did not observe any other assignments made that day, nor did, he observe any assignments during the balance of the week. In November he started working for A. P Green. He was hired at the jobsite and received his introduction slip from Local 41. Clarence Frazier testified that he was a member of Local I in Chicago and that he had worked for Furnco at Youngstown from October 1966, until April 1967. Ballock was the union steward and Green the general foreman on the job. He was hired at the jobsite by Green but when he asked Ballock for his introduction slip he was told "f- - - you guys from Chicago." Later through the intervention of Richard Brown, another laborer, he was given his slip and went to work. On October 30, 1967 he, together with John Flowers, applied for work at the Youngstown project. Emmett Rogers and John Young were with them and all saw Catanio. Catanio told them Ballock would hire 15 men that morning and to get to the union hall. Frazier testified that there were about 25 men in the hall and that Rogers, he and Flowers got behind a line of four or five men which had formed. Ballock arrived shortly and called out about 15 names, including all in line in front of Rogers and some who were elsewhere in the hall.' These who were called went into the office and Frazier assumed they received introduction slips and went to the Youngstown project. Frazier was also at the hall the next day and saw Ballock take two men into his office where he likewise assumed they received slips and went to the jobsite. On the following day Frazier stated that Trippeer gave introduction slips to two men and sent them to the jobsite. There were approximately 20 to 25 men in the hall on each of these days. While Frazier reported on the following 2 days he did not notice that anyone was sent out. On November 11 Frazier obtained work with A. P. Green, where he was hired at the jobsite, receiving his introduction slip from Local 41 thereafter. Curtis Bush, another general laborer and a member of Local 269, testified that after October 9 he applied for work at the Youngstown project everyday. He was present at a conversation between a laborer named McKee who told Ballock to hire him (Bush), promised Ballock that Bush would not make any trouble and that he had never made any trouble for the Negro members. A few days later Bush was hired at the jobsite by Catanio and went to Local 41 the next day where he received his introduction slip. In November Bush had a conversation with Ballock in which Ballock told him he was thinking of "running a job" after the Youngstown job and wanted to know if Bush knew any good men." Ballock exempted Rogers from consideration on the ground that Rogers was "a troublemaker" and had filed charges against Furnco in the past." Catanio testified that he knew Rogers and also knew that he had filed unfair labor practice charges against but he was apparently with them when they talked to Catania 'This does not agree with the testimony of Rogers who stated only those in line in front of him were called. '"What Ballock meant by running a job or in what capacity he expected to be employed was not explained. "On cross-examination Bush admitted that he had litigation pending against Trippeer and other trustees of Local 41's pension fund and also had filed charges with the Board against Local 269 The testimony was received to show possible bias and prejudice on the part of the witness against Local 41. 95 Furnco some 4 or 5 years ago. He stated that one day in October (the date he could not fix) he discovered that he would need 15 men, that he contacted Ballock and ordered them for the next morning. On the next morning, which would be October 30, according to Rogers and Frazier, he saw Rogers and Frazier at the jobsite and told them he had called the steward the night before and asked for 15 men and that they would be coming from the hall. He advised Rogers and Frazier to go to the hall and see "if he has his 15 men." Catanio testified that he received his 15 and put them to work. Rogers and Frazier were not among them. One laborer, John Young, was notified through another laborer named Streeter to report on the 30th because Catanio knew him."2 The 33 pages of examination of Trippeer add nothing to the summary of his testimony contained in the last paragraph . of that part of this report entitled "Background." B. Conclusions 1. Discrimination by Local 41 It might first be noted that any proceeding based upon an allegation that an individual has been discriminated against by either an employer or a labor organization because he had previously filed unfair labor practice charges under the Act must be given the closest scrutiny. The right of any employee to resort to the statute for redress against discrimination is to be safeguarded at all costs against subsequent reprisal. This does not, however, relieve the General Counsel of his burden of proof. The issue most easily disposed of in this case is the General Counsel's allegation, paragraph VII (a) of the complaint, that "Respondent Union and Respondent Employer maintained and otherwise gave effect to an arrangement, understanding or practice which required referral, clearance or approval by Respondent Union as a condition of employment with Respondent Employer at its Youngstown project." No issue could have been more exhaustively litigated than this. The credible testimony of Catanio and Green established that they could and did hire at the gate and also hired through the union hall. (Catanio testified that he had hired approximately 12 to 15 men at the gate and Green testified that he hired all his men at the gate.) Additionally there is direct evidence that Catanio hired Young through a telephone call made by another employee and put him to work on the morning of October 30 without referral to or clearance by the union hall." Both Rogers and Frazier, the charging parties, testified that they were hired at the A. P. Green job without referral by the hall. It is a reasonable inference that had there existed an exclusive hiring practice with Furnco the same practice would include other contractors within the jurisdiction of Local 4l.11 I 'Catanio was cross-examined as to Joint Exhibit No 3, which purported to be a list, with dates, of the employees hired and laid off by Furnco at Youngstown This list shows only 13 employees , including John Young, were hired on October 30. It does show 2 employees rehired on October 28 and 3 hired on October 31. Nevertheless Catanio insisted he received 15 men on October 30 "This gate hiring of Young is used by the General Counsel to show discrimination against Rogers and Frazier This overlooks the fact that Catanio hired Young because he knew him from past experience and wanted him on the job. "General Counsel also relies on Frazier 's testimony that Green told him, before hiring him in 1966, to get an O.K from Ballock This does not 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD While the General Counsel continually referred to the necessity of clearance or referral by Local 41 it is clear that he referred to the introduction slips (a term the General Counsel refused to use) given employees sent to the jobsite for hiring or to employees who had been hired at the jobsite in order to have an accurate record of the payments required to be made by the employer to the Union's Health and Welfare and its Pension funds.t5 (These payments were based upon the number of hours worked by its members.) This is a far cry from establishing an exclusive hiring practice The General Counsel admitted in his brief that an exclusive hiring hall agreement, practice or arrangement is essential to a finding of discrimination under Section 8(b)(1)(A) and (2) of the Act on the part of Local 41. The evidence I have credited, and which is not contradicted, does not support the finding of such an agreement, practice or arrangement. It is therefore my recommendation that the complaint against Local 41 be dismissed." 2. Discrimination by Furnco A more difficult question is presented with respect to the charges filed by Rogers and Frazier against Furnco, although as to Frazier I find no evidence of discrimination except the fact that he was not hired. The General Counsel's theory of discrimination rests on the fact that Frazier was at the jobsite on October 30 with Rogers. Frazier's own testimony is that he was hired at the jobsite at Youngstown by Green in October 1966 and worked until April 1967. Then, on October 30, 1967, he was at the jobsite seeking employment together with Rogers, Flowers, and Young. Young had been notified by Catanio, through Streeter, on the previous day that he would be hired and was put to work immediately. Rogers, Frazier, and Flowers were advised by Catanio to get to the union hall where Ballock would be referring 15 men At the hall they joined a line which had formed in front of the business agent's office and Ballock came out and called off the names of the employees who were in front of them in line. He called no names of members who were past them in line. There is contradiction in the testimony between Rogers and Frazier as to whether he called other employees who were not in line. (Rogers said he did not know, Frazier said he beckoned to other men sitting around the hall.) All according to Frazier went into the office, were given their slips and left. From this I am asked to infer that Frazier was refused referral at the hall establish that a similar procedure was followed in 1967 nor does it establish anything more than that an introductory slip was required Green denied telling Frazier he had to get an O.K. from Ballock and, as between the two, I credit Green. Similarly I attach little import to Bush's testimony that he was hired at Youngstown after another employee interceded with Ballock to put him to work Nothing is more clearly established than that Ballock did the referring for Local 41 but this does not establish that Catanio did not also hire for Furnco . From Catanio's testimony I find that Catanio hired those employees whom he knew and wanted without reference from Local 41 and, as to those whom he did not know, he sent to the hall Intercession by an employee with either a union agent or a company hiring agent to hire a fellow -member is certainly not uncommon and proves nothing It is to be assumed that a union member would intercede with the union shop steward with whom he was acquainted rather than with the employer's hiring agent who would normally be a stranger to him. "These slips were not presented to the hiring agent for Furnco, Foreman Catanio, but to Ballock , the Union's shop steward , for return to Local 41 "Local 357. I B T (Los Angeles-Seattle Motor Express ) v N L R.B 365 U.S. 667. simply and only because he was at the jobsite that morning at the same time as Rogers." The General Counsel does not allege that Flowers, who also appeared at the jobsite on October 30 with Frazier and Rogers was the subject of discrimination although he, too, was not accepted for employment and, like Frazier and Rogers, was sent to the union hall by Catanio. I find an insufficiency of proof to support the General Counsel's allegation that Frazier was denied employment because he appeared at the jobsite with Rogers. As to Rogers, a more difficult determination must be made. Evaluating the factors which lead to an inference of discrimination against Rogers, we have these: (1) He did file unfair labor practice charges, subsequently settled, against Furnco. (2) He was later advised, after employment by Furnco, by Urbanski, that if he had known it was Rogers who had filed the charges he would not have been given employment at Sparrow's Point - (3) He was refused employment by Urbanski at the Youngstown project on either October 3 or 4 on the ground that work was not available. Furnco's records (Joint Exhibit No. 3) show that one man was hired on October 3 and that six men were hired on October 4.18 (4) Rogers was refused employment when he applied for work at the jobsite on October 4 and 8 by Charlie Larkin and Thomas Green on the ground that work was not available. In addition to the employment of six men on October 4 Furnco's records indicate that three men were employed on October 7. The records do not indicate whether these men were hired for the day shift operated by Catanio or the night shift operated by Green. The General Counsel does not allege this refusal as a violation, presumably because of Green's testimony that on the same day he refused employment to Rogers he refused employment to his son and brother. (5) Rogers was refused employment at the jobsite on October 30 but was told by Catanio to go to the union hall since he had requested 15 men. Rogers was not among those referred by Local 41. (There is dispute as to whether 15 or 13 men were actually referred since Furnco's own records show only 13 men were hired on October 30. Since Young would be among the 1',3 it would appear that only 12 were sent from the hall. Catanio, as previously stated, insisted he received 15 men.)" "The General Counsel rests a part of this inference , seemingly, on the testimony of Frazier that he saw Catanio talking to Ballock at the jobsite as he, Flowers and Rogers left for the hall at Catanio's suggestion. The General Counsel suggests that the subject of conversation , concerning which there is no testimony, was Rogers and Frazier To ask a Trial Examiner the subject of a conversation concerning which there is no testimony and to infer it adversely to the Respondents in making an extravagant demand upon his gift for extrasensory perception The realms of possibility concerning the topic of such a conversation are limitless and could include, however unlikely, such subjects as the latest techniques in the cultivation of fenugreek or the impact of the Ecumenical Congress upon the liturgy of the Church. A finding of a Trial Examiner should be based on something more than "wild surmise." "Rogers quoted Urbanski as stating that they were not doing any hiring "this minute at this time We expect to be hiring within a week " Urbanski was not called as a witness. "Ballock, certainly a key witness in this case, was not called by either party The General Counsel suggest he was available to Local 41 but Ballock was not a member of Local 41 The itinerant nature of the craft is shown by the various geographical assignments given members The General Counsel does have subpena powers and has , in my experience, subpenaed witnesses from as far as Puerto Rico I draw no inference from the failure of either party to call Ballock. It is regrettable, however, since his testimony was essential to explanation of other testimony in the case FURNCO CONSTRUCTION CORP. (6) There is also the testimony of Bush that in a conversation with Ballock at the jobsite in November 1967, Ballock told him he hoped to be running future jobs but would not hire Rogers because he was a troublemaker and had filed charges against Furnco in the past. Since Ballock was an agent for Local 41 and not for Furnco I do not find this testimony binding upon Furnco. In reaching determination we are confined to two refusals, the one by Urbanski on or about October 4 and the one by Catanio on October 30. Neither refusal was unqualified since Urbanski told Rogers that "they" were not hiring at that minute but would be within the week and Catanio advised Rogers to go to the hall where 15 men would be hired. As to Urbanski's refusal the records of Furnco establish that men were being hired during the week of October 4. What the records do not disclose is when these hirings were made - that is were they made the night previous to the hiring by requesting men from Local 41 for the succeeding day or were they made on the day of hiring. It could therefore well be true that Rogers might have been told by Urbanski, and incidentally Urbanski was not doing the hiring at the Youngstown project, on October 4 that Furnco was not hiring at that minute since the employees hired on that day may have already been requested through the hall on the preceding day. (This is what happened on October 30 when Catanio advised Ballock on October 29 that he would need 15 men on the following day.) I cannot, simply on the fact that Rogers was not hired by Urbanski on October 4 find that the reason for his rejection was the fact that he had filed unfair labor charges in 1964. The record does reveal that there was a reserve of unemployed laborers at all times at the hall and that many of these were not referred to the jobsite for employment. I shall not infer that this one man, Rogers, was discriminated against in view of the general labor situation among the members of Local 41 on the lone ground that he had filed charges against 97 Furnco and was, not offered employment when he appeared at the jobsite: The same conclusion is reached with respect to his refusal of employment by Catanio on October 3,0. The record indicates that Catanio hired at the jobsite only those employees whom he knew and specifically wanted. All others were referred to the hall.2° On October 30 Rogers, Frazier and Flowers were referred to the hall. Young was put to work because he had been notified the previous day that work was available for him. No other applicants apparently appeared at the jobsite on that morning. Again, the simple, fact that they were not referred to Furnco by Local 41 does not sustain the General Counsel's burden of proof against Furnco. While I agree that the issue is close and that a contrary conclusion could perhaps as easily be reached I do not find that Furnco, by refusing employment to Rogers, violated Section 8(a)(1), (3), and (4) of the Act. Upon the basis of the foregoing findings and conclusions and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent Furnco did not violate Section 8(a)(1), (3) and (4) of the Act. 2. Respondent Local 41 did not violate Section 8(b)(1)(A) and (2) of the Act. RECOMMENDED ORDER It is recommended that the complaint be dismissed in its entirety. '°Catanio testified that he generally hired through the hall because he wanted good relations with the Union and he could run a smoother job that way This is certainly a plausible and nondiscriminatory reason, particularly for a construction company moving from area to area