General Building Laborers' Local 66

GENERAL BUILDING LABORERS' LOCAL 66 125 General Building Laborers' Local Union No. 66, Labor- ers' International Union of North America, AFL-CIO (Courter & Company, Inc.) and Carlo Guastello. Cases 29-CB-896 and 29-CB-924 July 11, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY meaning of Section 8(b)(1)(A) and 8(b)(2) of the Act. The Respondent denies the commission of any unfair labor practices. Pursuant to notice, a hearing was held before me in Brooklyn, New York, on January 19 and 20, 1972. All parties were afforded full opportunity to call, examine, and cross-examine witnesses, to argue orally and thereafter to submit briefs. Briefs were not submitted. Upon the entire record herein, including my observation of the demeanor of each of the witnesses as they testified, I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW On June 2, 1971, Trial Examiner Benjamin K. Blackburn issued his decision in this case in which he found that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommended that the complaint be dismissed in its entirety. Thereafter, the General Counsel filed exceptions and a supporting brief. The Respondent filed a brief in support of the Trial Examiner's Decision. In his exceptions, the General Counsel contented that the Trial Examiner erred in finding General Counsel's only witness incompetent to testify. The Board found merit in the General Counsel's excep- tions and, on November 3, 1971, issued an Order requiring a new hearing to be held in this proceeding before a Trial Examiner other than the Trial Examiner who conducted the initial hearing. On January 19 and 20, 1972, a second hearing was held before Trial Examiner John G. Gregg. On April 11, 1972, the Trial Examiner issued the attached Decision in this proceeding. The Charging Party filed exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN G. GREGG, Trial Examiner: The consolidated amended complaint herein , issued on March 31, 1971, and based on charges duly filed, alleges that the Respondent Union engaged in unfair labor practices within the 198 NLRB No. 29 I. JURISDICTION As alleged in the complaint and admitted in the pleadings Courter & Company, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act; and General Building Laborers' Local Union No. 66, Laborers' International Union of North America, AFL-CIO, herein referred to as the Respondent Union or Local 66, is a labor organization within the meaning of Section 2(5) of the Act. IT. THE ALLEGED UNFAIR LABOR PRACTICES The complaint alleges essentially that the Respondent Union (a) by Philip Sommese on January 18, 1971, threatened at the East Northport jobsite to inflict and inflicted bodily injury to the person of Guastello; (b) by Sommese, urged and directed employer's representative, Smith, not to rehire Guastello for future work at the jobsite; and (c) by Jimmy Leone on January 27, 1971, threatened to inflict and inflicted bodily injury to the person of Guastello. The complaint alleges that the Respondent engaged in the foregoing conduct because Guastello had continued to press his grievance against the employer at a grievance meeting with Smith and Sommese at the jobsite on January 18, 1971, and had sought to obtain benefits under the contract between the Respondent Union and Courter by filing a grievance with the Respondent Union on January 16, 1971, and by continuing to press such grievance with Philip Sommese and Bruno Leone, officials of the Respondent Union, and Smith of Courter Company; and because Guastello had engaged in other concerted activities protected by the Act including his attempt to seek the nomination for the office of business manager of the Respondent at a general member- ship meeting of the Respondent on May 14, 1970, and his subsequent appeals relating thereto based on alleged denial of his rights as a union member at said meeting which appeals were directed among others to the general executive board of the International, the judges of the election, the International convention, and the U.S. Department of Labor. A. The Facts There was testimony of record by Carlo Guastello who testified that he sought nomination for an office in Local 66 in 1967, and then in 1970. According to Guastello he ran for the office of business manager for the Union in 1970. 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Guastello said that in preparation for seeking the nomination he wrote a letter which he was unable to get published because of the cost and that he was subsequently advised by someone at the office of the Labor Department in New York City to read the statement at the nomination meeting which was held on May 14, 1970. According to Guastello at the meeting he rose and attempted to read his paper and he was ruled out of order. Guastello testified that prior to this he had advised two members who were going to nominate him and second him that if he did not get the opportunity to read his statement he did not wish to be nominated. According to Guastello, Bruno Leone, business manager of the Union, has been an officer for 30 years. Guastello stated that at the meeting on May 14, 1970, Leone was again nominated for the office of business manager and ran unopposed. Guastello testified that he took action to protest what he felt were unfair procedures at this meeting of May 14, 1970, including writing to the International Union. Guastello stated that he also appealed to the election judges, but was overruled. Guastello also appealed to the general executive Board of the Laborers' International Union. Guastello had a hearing on his objections before the general executive board, thereafter appealed from the negative determination by the Board to the convention and the convention denied his appeal. Guastello stated he also sent various letters to the U.S. Department of Labor concerning these matters and received replies. The record reflects that the U.S. Department of Labor officially responded to Guastello's communications and held in effect that his remedy was by private suit in the appropriate U.S. District Court. The General Counsel states that the theory of the complaint herein is that the Union's representatives on two occasions assaulted Mr. Guastello and on one of those occasions told an employer not to rehire him, because Guastello was pressing a grievance with the Union against a particular employer and because Guastello had engaged in other protected activities under the Act, including Guastello's participation in the May 14, 1970, meeting and his various appeals and protests concerning what he felt was improper about that meeting and including also his various appeals and proceedings which he instituted before governmental agencies. B. The Alleged Assault by Sommese and the Alleged Direction to the Employer Not To Hire Guastello Guastello testified that he worked on the East Northport jobsite as a laborer assisting carpenters who were hanging scaffolds, and that he was the only laborer on the job aside from one Ruisi who was the labor foreman. Guastello was assisting two carpenters who were also employed by the Courter Company. Guastello testified that he worked from June 10, 1970, until January 15, 1971, when he was laid off by Ruisi. According to Guastello he thought he was improperly laid off, so the next day he went to the Union with a written complaint which he handed to Bruno Leone. According to Guastello, Leone gave it to Phil Sommese to handle. Guastello testified that Sommese at that time remarked that they didn't have the right to lay Guastello off. He then instructed Guastello to meet him on January 18 at 11 o'clock in the morning at the jobsite in East Northport. According to Guastello he met with Sommese in the shanty at the jobsite. At this time Sommese instructed the shop steward who was in the shanty to go outside as he wanted to talk to Guastello. The shop steward, Gillis, left. Guastello stated that he then explained to Sommese the basis for his grievance. According to Guastello at this point Mr. Smith an official of the Courter Company and Gillis came in and they started a discussion. They discussed the merits of the grievance and Guastello's complaint. According to Guastello, Sommese told him that he didn't know what he was talking about so he, Guastello, raised his voice. Guastello said that he then took out the agreement and showed Sommese the agreement and that Sommese then told Smith that if Smith needed any more laborers he was not to hire Guastello. Guastello subse- quently testified that he did not recall what he had actually said or what had been said as the matter happened 2 years before. Guastello had his recollection refreshed by a transcript of a previous Board hearing, then stated that he remembered "of the spit in the face, the slap in the face." He then testified as follows: Q. Can you tell us now to the best of your recollection now whether you recalled what happened after Smith and Mr. Gillis came into the shanty. A. I believe I said-when he said the words of I didn't know what the hell I was talking about, I told him he was disgraced to our union also, that I paid-that we pay his salary, that he should listen to me, you know, that that is no way for a delegate to talk to a fellow member, that is no way-and that's why I said he is a disgrace to our union. And then he came at me and slapped me with a fist and and then they pushed him out near the door. Then he twist his tongue and spit in my face and then I says harsh words-I'm not- In another version Guastello indicated that Guastello was discussing with Sommese certain provisions of the laborers' contract relative to Guastello's grievance against his layoff by Courter. According to Guastello, Sommese said, "You don't know what the hell you're talking about." Guastello told him he was a disgrace to the Union, "I pay your salary." Q. So then what happened when you said that? A. At that time-I'm not going to swear he came at me and slapped me because he is a ex-boxer because he didn't come all the way... . Q. Did he say anything to Mr. Smith at that time? A. -You hire who you want, but don't put the man, Carlo Guastello on the job ... . Guastello testified to the alleged assault by Sommese with several differing versions indicating in some that Sommese did not in fact strike him; that Sommese, realizing his own strength, restrained himself; that Sommese's hand came so close to Guastello's face that Guastello felt the warmth of his hand; and that Sommese slapped him. According to Guastello's testimony, after this incident "we both cooled down, let me say it that way. That we both cooled and we talked to one another because it was dinner time." GENERAL BUILDING LABORERS' LOCAL 66 127 In his testimony, Philip Sommese, organizer for Local 66, stated that Guastello complained about his layoff at Courter, that he advised Guastello that according to the agreement the contractor had a right to hire and fire. When Guastello insisted, Sommese made an appointment to meet at the jobsite, where he inquired of Smith as to why Courter had laid off Guastello. When Smith responded essentially that he didn't have to build any more scaffolds and only needed one laborer, Sommese was satisfied. Guastello continued to press his grievance. According to Sommese, Guastello became violent and pushed Sommese "with his belly," Sommese denied slapping Guastello, denied threatening him, and denied inflicting any body injury on Guastello. Q. Did you tell any representative of Courter whether it was Mr. Smith or Mr. Ruisi, that Courter was not to rehire Guastello? A. Never. In his testimony, Smith stated he directed the layoff of Guastello because of lack of work. At the meeting with Guastello and Sommese, according to Smith Guastello claimed that work being done by carpenters belonged to laborers. Smith stated that the work was that of carpenters and told Sommese he had laid off Guastello because of lack of work. Sommese was satisfied. Smith stated he -did not see Sommese hit or slap Guastello. He stated that Guastello had become quite excited. Based on my observation of the demeanor of the witness Sommese as he testified I credit his testimony and his denials. He was straightforward, and unmistakably uncon- trived. I was impressed with his sincerity. On the other hand, based on my observation of the witness Guastello as he testified I do not credit his version. Aside from his demeanor, his actual testimony was marked by conflicting, vaccillating, and shifting versions. In demeanor he was obviously intensely preoccupied with relating incidents that had occurred with biblical overtones. His descriptions and testimony were significantly marked by platitudes and allegory. He did not testify with certainty. Accordingly, I find that Sommese did not threaten to inflict nor did he inflict bodily injury to the person of Guastello as alleged in the complaint. I find that Sommese did not urge and direct Smith not to rehire Guastello to work at the jobsite in the event services of a laborer were required in the future. I will accordingly recommend dismissal of that portion of the complaint. C. The Alleged Assault by Leone The complaint alleges that on or about January 27, 1971, the Respondent by Jimmy Leone, its shop steward and agent, at a jobsite at Stony Brook College threatened to inflict and inflicted bodily injury to the person of Guastello because Guastello had continued to press his grievance against Courter and because Guastello sought to obtain benefits under the contract between the Respondent Union and Courter and because Guastello had engaged in other concerted activities protected by the Act. Guastello testified that after his layoff at Courter he shaped up at a job at Stony Brook College for about 8 days. According to Guastello, the second day he shaped up he met Jim Leone, shop steward on the job and a brother of Bruno Leone, the business manager for the Respondent Union. Guastello testified that he tried to tell Jim Leone what had happened but he did not want to know about it as he was concerned about his son in Viet Nam. According to Guastello on January 27, 1971, he shaped up at the Stony Brook job but was not selected . About 8:30 a.m. he went toward the shanty where Jim Leone emerged to empty a rubbish can. As he entered the shanty he was told by Leone he was not wanted in the shanty, not welcome. According to Guastello as he started walking out, or down the steps leading to the shanty he heard someone say "leave me alone" and he was struck on his left check and over the eye by Jim Leone. According to Guastello, Leone then backed up , picked up an iron pipe with a square end and held it in his hand. He did not use it. Guastello testified that he subsequently had stitches taken over his eye. He called the Suffolk County police and reported the incident, later accompanied the police to the police station at Coram where it was learned that Leone had filed charges at another police station at Hauppauge. According to Guastello they proceeded to Hauppauge and went into a courtroom where a judge subsequently set down the case for hearing at a later date. Guastello testified that he appeared at the hearing on June 17, 1971, and that he was informed that Leone had dropped his charges. The record indicates that on that date the charges of assault in the case of Guastello vs. Leone were dismissed on motion of the district attorney. James Leone testified that he had known Guastello for 4 years. Leone stated that sometime before the incident alleged in the complaint he and Guastello had worked at the East Northport jobsite for different employers . Accord- ing to Leone at that time Guastello made some remarks about James Leone's brother, Bruno , and in an ensuing exchange threatened to kill James Leone. Leone testified that on January 27, 1971 , he was shop steward at Stony Brook. The shape up took place at 8 a.m., and the men were told there would be no hiring after 8 a.m. About 8 :30 a.m. Leone was cleaning the shanty when Guastello tried to come in. Leone testified that he told Guastello to stay out as he was cleaning the shanty and there would be no more hiring that day. At that time Guastello was on the step and then entered the shanty. As Leone walked down the steps , according to Leone, Guastello struck him from behind and knocked him down. Leone struck back. The fight was stopped when others came around. Leone denied picking up an iron pipe. Leone testified that he was aware that Guastello had run for business manager against Leone's brother Bruno, and that he wanted to become business manager and was aware of the many complaints and appeals taken by Guastello, and that Guastello constantly criticized not only Bruno Leone but all the officers of the Respondent Union. Based on my observation of the demeanor of the witnesses as they testified I credit the version of James Leone who testified that he was struck by Guastello before striking back . I do not credit Guastello's version of the incident. It is clear from the record that blows were exchanged. It is also clear that the matter was disposed of before a court of competent jurisdiction and the assault charge by Guastello against Leone was dismissed. 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I am unable to find on this record sufficient evidence on which to base a finding that the injury inflicted by James Leone on Guastello was inflicted because Guastello had continued to press his grievance against Courter, because Guastello had sought to obtain benefits under the contract between the Respondent Union and Courter, and because Guastello had engaged in other concerted activities protected by the Act. While the General Counsel cites Teasmters Local 729, (Penntruck Co.), 189 NLRB No. 83, that case is distinguish- able. In finding a violation of Section 8(b)(1)(A) in Penntruck the Board found that the record established that the conduct involved was primarily motivated by the resentment the union agent felt towards certain employees because of their participation in a work stoppage not authorized by the Union and that the threats and assaults were an attempt to force employees to abandon the picket line. The Board found that the assaults by the union agent against certain employees were intended to coerce the employees into crossing a picket line. In the case at hand I am persuaded and I find that the assault by Leone was clearly not intended to coerce Guastello in his exercise of protected union activity but was clearly the outgrowth of and inherently part of personal animosities provoked in large part by Guastello's behavior, personal invective, and provocative statements, and not due to his substantive union activity. I shall therefore recommend dismissal of that portion of the complaint. Since a preponderance of the probative evidence does not establish that the Respondent Union committed any unfair labor practice I will recommend that the complaint be dismissed in its entirety. CONCLUSIONS OF LAW 1. Courter & Company, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent Union has not engaged in unfair labor practices as alleged in the complaint. Upon the foregoing findings of fact and conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER The complaint herein is dismissed in its entirety.