Phillip Diniaco & Sons, Inc.

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