Bricklayers Local 2

478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bricklayers, Masons and Plasterers' International Union of America, Local No. 2, AFL-CIO (Glen- shaw Glass Company, Inc.) and George S. Disko- vich. Case 6-CB-2321 August 10, 1973 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On April 16, 1973, Administrative Law Judge Well- ington A. Gillis issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, Bricklayers, Masons and Plasterers' International Union of America, Local No. 2, AFL-CIO, Pittsburgh, Pennsylvania , its offi- cers, agents, and representatives, shall take the action set forth in the said recommended Order. ' The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board 's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F.2d 362 (C.A 3, 1951). We have carefully examined the record and find no basis for reversing his findings DECISION STATEMENT OF THE CASE WELLINGTON A. GILLIS, Administrative Law Judge: This case was tried before me on February 15, 1973, at Pitts- burgh, Pennsylvania, and is based upon a charge filed on February 22, 1972, by George S. Diskovich, an individual, upon the complaint issued on November 30, 1972, by the General Counsel for the National Labor Relations Board, hereinafter referred to as the Board, against Bricklayers, Masons and Plasterers' International Union of America, Local Union No. 2, AFL-CIO, hereinafter referred to as the Respondent or the Union, alleging violations of Sections 8(b)(1)(A) and (2) and 2(6) and (7) of the National Labor Relations Act, as amended (61 Stat. 136), and upon an answer timely filed by the Respondent denying the commis- sion of any unfair labor practices. All parties were represented by counsel, and were afford- ed full opportunity to examine and cross- examine witnesses, to introduce evidence pertinent to the issues, and to engage in oral argument. Timely briefs were filed by counsel for the General Counsel and for the Respondent. Upon the entire record in this case,' and from my obser- vation of the witnesses and their demeanor on the witness stand, and upon substantial, reliable evidence "considered along with the consistency and inherent probability of testi- mony" (Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 496), I make the following: FINDINGS AND CONCLUSIONS I THE BUSINESS OF THE EMPLOYER Glenshaw Glass Company, Inc., hereinafter referred to as the Company, is a Pennsylvania corporation with its princi- pal office located in Glenshaw, Pennsylvania, where it is engaged in the manufacture of glass containers. It operates a similar plant in Orangeburg, New York. Only the Company's Glenshaw plant, however, is involved herein. During the 12-month period immediately preceding the is- suance of the complaint, the Company shipped from its Glenshaw, Pennsylvania, facilities, goods and materials val- ued in excess of $50,000 directly to points outside the Com- monwealth of Pennsylvania. The parties admit, and I find, that the Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11 THE RESPONDENT LABOR ORGANIZATION The parties admit, and I find, that Bricklayers, Masons and Plasterers' International Union of America, Local No. 2, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. Issue Whether the Respondent, in causing the Employer to terminate the employment of George Diskovich, Andrew Kubis, and Joseph Schneltzer on February 18, 1972, violat- ed Section 8(b)(1)(A) and (2) of the Act. B. Facts At some point in January 1972, Glenshaw Glass decided to rebuild one of its glass furnaces, which involved tearing down the old furnace and rebuilding it. Consistent with its 'Subsequent to the close of hearing, counsel for the General Counsel moved to correct a number of errors appearing in the transcript The motion is hereby granted. 205 NLRB No. 91 BRICKLAYERS LOCAL 2 past practice of employing a foreman to supervise a project, William Meyer, vice president in charge of engineering, contacted Bob Zollinger toward the end of January and arranged for a meeting. On February 3, Bob Zollinger 2 met with Myer and Vice President Cricks, in Meyer's office. The three discussed details involved in doing the job and the number of men required to complete the job in a given number of days. It was decided that the project would start on Monday, February 21, and would take approximately 2 weeks, using 10 men, plus Foreman Zollinger. It was further decided that Zollinger, a bricklayer and member of Local 75, Greensburg, Pennsylvania, would make all arrange- ments for doing the job, and that he would be responsible for the hiring of the 10 bricklayers.3 Zollinger told Meyer and Cricks that he was leaving for a 2-week job in New Jersey, and that he should be back in time to start the job, but that, if not, his cousin, Bill Zollinger, would act in his place until he returned. The Company officials agreed to this. That night, Zollinger called Jim Conley, Local 2 business agent, and discussed the job. Zollinger told Conley that he was planning to use 10 men, that he "would like to bring 5 people in and use 5 from Local 2." Conley said he could not go along with that, that there was an unemployment prob- lem in Pittsburgh and "he felt that he should have a bigger ratio of men on the job," and suggested seven Local 2 men and three outside men. After further discussion on the tele- phone, Zollinger suggested six and four, with which ratio Zollinger thought there was agreement. In talking numbers, Conley and Zollinger also discussed to some degree at least, what bricklayers might be available. Conley gave Zollinger the names of men he thought would be suitable for the job, men who had worked there before and on different glass furnaces. Zollinger said he would consider them. Conley also mentioned that Fred Jackson would probably be the steward on the job, with which Zollinger agreed 4 Zollinger also apprised Conley of the New Jersey situation and of the possibility that he might be delayed getting back, indicating that if such were the case, his cousin, Bill Zollinger, would be acting for him as foreman and would contact Conley and "give him a list of the men that he wanted or that he had hired." 5 The following Sunday, February 6, before leaving for New Jersey, Zollinger called Conley, requesting that he stop 2 There are several Zollingers involved in this proceeding. Any reference to Zollinger, without the use of a first name will be to Bob Zollinger 3 This was in accordance with past practice The credible evidence shows that the Company does not hire the bricklayers for this type of job, but rather, em4ploys the foreman , who in turn is responsible for the hiring of the men It is customary in the jurisdiction of Local 2 for the Union to name ajob steward on any job using bricklayers 5 The above is taken from the credible testimony of Zollinger, whom I find to have been a truthful and forthright witness Zollinger also testified that at no time did he relinquish authority to hire these men, and that at no time did he request Conley to pick any men for the job While Conley testified that Zollinger told him that "he intended on employing 5 of our people and bring 5 people in from outside the area," Conley denied that Bill Zollinger's name was mentioned , or that any agreement was reached as to the ratio of men Contrary to the impression of Bob Zollinger on the witness stand, I was totally unimpressed with Conley as a witness His demeanor while testifying left much to be desired, and I just did not believe much of his testimony I do not credit Conley as to this conversation , and to the extent that his testimony conflicts with other credible testimony, it is not believed. 479 by Glenshaw Glass with insurance forms and make ar- rangements with the paymaster concerning payroll deduc- tions. On the following Tuesday, February 8, Conley went by the company offices and talked with Meyer and Clark, vice president of industrial relations, telling them that he felt that the ratio should be eight Local 2 people and two from outside the Local. On Wednesday, February 9, Zollinger, while in New Jer- sey, received a telephone call from Meyer who indicated that Conley had come out to the plant and wanted to change the six to four ratio whereby there would be a larger number of Local 2 men. Zollinger then placed a call to Conley, and asked Conley why he had gone back on his agreement. Conley replied that, because at the end of their earlier con- versation when the six to four ratio was set up, it had been left up in the air as to whether Bob Zollinger would be back and whether it would be Bob or his cousin, Bill Zollinger, who would be the foreman and would operate the job. Ac- cordingly, Conley indicated that he did not want to deal with Bob Zollinger any more and that it was up to Bill Zollinger to make the arrangements, that he felt that his agreement with him (Bob) was not binding. Conley's version, which I do not accept, varies decidedly from that of Zollinger. Conley testified that Zollinger asked Conley if he could provide 6 people and a steward for the job, to which Conley replied that he could provide 66 if need be. When Conley assertedly asked Zollinger what he meant, Zollinger replied that he felt there would be seven people from Local 2 and three from the outlying area. Conley allegedly replied that he had no question as to the 3 outside people, but that he would still try to secure more Local 2 men on the job.' Allegedly, the next day Conley called six bricklayers and notified the steward that the job would start on February 21. However, even as to Conley's testimony on this, there is some question. Although two of the bricklayers, the only two to testify herein, testified that Conley called them "around the 10th," and Conley assertedly went by the Com- pany offices that afternoon with the idea of getting more Local 2 men on the job and told Clark that he called six men, Clark, whom I found to be a reliable witness, testified that Conley never said this to him, merely that "he had a number of people out of work and he wanted to put them to work." Clark did tell Conley on this occasion that the Company never picks the bricklayers, that this is left up to the foreman. It does appear, however, that Conley tried to get the Company to agree to add one more man to the job, a Local 2 man, making the ratio, including the steward, eight to three, with the Company remaining noncommittal on this. Bill Zollinger, who had earlier been asked by Bob Zolling- er to take over for him if he did not get back in time and for him to hire the men needed on the job, except for Fred Jackson who would be sent out by the Union, received a call 6 It Is this alleged request by Zollinger that Conley, and the Respondent, assertedly relied upon as authority for hiring six employees. While Zollinger testified that, although he did not recall, it was possible that Conley could have volunteered to provide 6 men Zollinger denied emphatically that he asked Conley to provide 6 men or that he ever told Conley he was to hire any bricklayers for thejob I credit this denial In doing so, I fully realize that this credibility finding is most crucial to the Respondent's defense and to a disposition of the entire case 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from Bob Zollinger who told him that the Company had called him after Conley's visit, and that the ratio of men had been changed from six to four to eight to three. Accordingly, on February 14, one week before the job was to start, Bill Zollinger hired seven men, securing agreement from each to be at the jobsite the next Monday at 8 a.m. Three of these men were George Diskovich, Andrew Kubis, and Joseph Schneltzer, all named as alleged discriminatees in this pro- ceeding. On Thursday, February 17, after having unsuccessfully attempted to reach Conley on Tuesday and Wednesday, Bill Zollinger received a return call from Conley. Bill Zollinger told him that he was reporting thejob, that he had hired the seven men he wanted for the job, and that he understood that he (Conley) would send out Fred Jackson to be the steward. Conley acknowledged that Jackson would be the steward and asked Bill Zollinger who the seven men were. Bill Zollinger then named the men, including Diskovich, Kubis, and Schneltzer. Conley said that a few of the men he had named had a job and were working. Bill Zollinger replied that he was unaware of this, and that he had asked them to come to work on Monday and each said that he would be there. Conley, without mentioning his also having hired men for the job, then questioned Bill Zollinger as to why he was hiring the men, rather than Bob Zollinger. Bill Zollinger explained that Bob was still in New Jersey and that his cousin had instructed him to hire the men, that he would be satisfied with those he hired. Conley ended the conversation by reiterating that a few of these men were on jobs and that he would get back to him. This, however, was the last contact between Conley and Bill Zollinger.? The following day, Friday, February 18, Conley met with Clark and Meyer in the company office. Conley opened the discussion by stating that he had received the names of bricklayers from Bill Zollinger who were to work on thejob, and that he, too, had made arrangements to hire certain men for the job, resulting in too many men. At that point, it appears that an agreement had been reached to the effect that 1 l men would be used, that 8 would be Local 2 men, and 3 otherwise. While it is not completely clear from the record, it appears that Conley had accepted Bill Zollinger's three "other than Local 2" men, and these, whoever they might have been, were not involved in the controversy.8 Of the eight Local 2 positions to be filled, Conley had named seven and Bill Zollinger had hired eight. As the names of several men had been on both lists, the problem facing the principals, when boiled down to simple terms, was that three too many men had been hired for the job to start the follow- ing Monday, February 21. The names of Diskovich, Kubis, and Schneltzer whom Bill Zollinger had hired were, of course, on Zollinger's list, but were not on Conley's list. When it was apparent that six men had been called for but three job openings, Conley insisted on using the men on his list, stating that he had obligated himself, that these were 7 Conley corroborated part of Bill Zollinger's version of this conversation He testified, however, when asked on redirect why he would not discuss the matter with Bill Zollmger after having already called men himself, that it was because he had dealt with Bob Zollinger and that Bob Zollinger was still the foreman 8 At least two of these appeared to have been other members of the Zolling- er family the men he wanted, and that these were the men he was planning to have in there. Meyer stated at some point that it was his understanding that the Union named the steward, and the foremen had the privilege of picking the other brick- layers. Conley replied that that was ordinarily the case, but that he had understood that that would not apply in this case. At some point, Conley, who had initiated contract talk on prior occasions, stated that he had been advised by his lawyer that Glenshaw Glass should not get bricklayers with- out a contract, and that, "If you are going to hang bricklay- ers, we will not let this job start Monday without a contract." At another point, Conley told Meyer and Clark that "if he didn't get his list and didn't have a contract, the men wouldn't work on Monday." Conley was told that Glenshaw had never had a contract with the Bricklayers, but had always adhered to the contract requirements and paid the benefits,9 and that the Company did not feel that it needed one now, and further, that the Company had always worked through the foreman for men, and never had to determine who would work and who would not, this decision was made by the foreman. Because of the necessity of commencing the job the fol- lowing Monday, the Company officials in effect, agreed upon going along with Conley's list and his demand, indi- cating that they would contact Bill Zollinger and would call Clark back later that day. Thus, Clark and Meyer agreed that C. Jackson, R. Hines, and R. Bardine, Conley's Local 2 men, would prevail over Diskovich, Kubis, and Schnelt- zer, three of the Local 2 men whom Bill Zollinger had hired for the job.10 Clark, after the meeting, called Bill Zollinger to give him the word. Upon learning that Conley wanted Diskovich, Kubis, and Schneltzer replaced and that the list of men finally agreed upon did not include these three , Bill Zolling- er told Clark that the men would be mad, that he had promised them a job, and that with this assurance they may have turned down jobs, to which Clark replied that that was between the men and Conley. Clark asked Bill Zollinger to call the three men involved and tell them. Zollinger reluc- tantly agreed, and did so shortly thereafter. The job started as scheduled the following Monday, Feb- ruary 21, with Bill Zollinger acting as foreman on Monday and Tuesday, prior to his cousin, Bob Zollinger, taking over on Wednesday and finishing the job. The job lasted 8 work- ing days, during which time, none of the three bricklayers, Diskovich, Kubis, and Schneltzer, worked. C. Conclusions The General Counsel contends that there was no agree- ment between the Company and Local 2 provided for the Respondent's selection of employees for the job, that the Respondent had no authority to hire men for the job, and 9 The reference is to the agreement between the Union and the Mason Contractors Association of Allegheny County 10 The above findings are based upon the credited testimony of Clark and Meyer, each of whom I found to be truthful witnesses. Conley, whose testi- mony varied decidedly from that of Clark and Meyer, and who denied making any threat of a work stoppage without a contract, is, as noted earlier, not to be believed on crucial matters BRICKLAYERS LOCAL 2 therefore, that the Respondent's demand that the Company replace George Diskovich, Andrew Kubis, and Joseph Schneltzer with three men whom it had contacted resulted in its causing the Company to discriminate against these employees in violation of Section 8(b)(1)(A) and (2) of the Act. The Respondent's defense to the entire course of action is premised upon its assertion that there existed an oral understanding or arrangement permitting it to name the men to work on the job. Thus, it is readily apparent, and recognized by all, that the dispute here involves basically a factual determination. That determination, as revealed by my credibility resolutions in establishing the facts herein, has been made. Basically, the facts reveal that there is no collective-bar- gaining agreement in existence between the parties to the dispute, and, accordingly, no existing hiring hall arrange- ment. The record does reveal that while the Company, through its job foreman, frequently obtains bricklayers through the Union, the foremen retain the authority to hire; it is not delegated to the Union. There does not appear to have been any exception on this occasion. At no time, I have found, did Foreman Bob Zollinger, or any other company official, authorize Conley to hire men for the job. Thus, the crucial discussion between Conley and Zollinger was con- fined to what the ratio of Local 2 men, as against non-Local 2 men, would be on thejob. That Conley, notwithstanding his testimonial assertions to the contrary, was cognizant of the fact that Zollinger was to do the employing of men on the job rather than the Union, is revealed by his testimony at one point to the effect that Zollinger told him that "he intended on employing 5 of our people and bring 5 people in from the outside." The three bricklayers in question, Diskovich, Kubis, and Schneltzer, were all members in good standing of Local 2, and qualified as Local 2 men within the agreed-upon ratio established by the principals. It is also undisputed that Conley's demand that the Company accept three other Lo- cal 2 men whom he has assertedly hired rather than Disko- vich, Kubis, and Schneltzer, whom the Company had hired, had nothing to do with any dues or other monetary obliga- tions of these men. For reasons best known to Conley, other than perhaps because the Local 2 men he chose would be "mad" if they did not get the job, he insisted that the Employer's three Local 2 men be replaced with his preferred people. The Company capitulated to Conley's insistence only upon the latter's threat of a shutdown of the job. Under the circum- stances of this case, in the absence of any hiring hall agree- ment, oral or otherwise, I find that, in causing and attempting to cause the Company to terminate the employ- ment of George S. Diskovich, Andrew Kubis, and Joseph Schneltzer on February 18, 1972, in violation of Section 8(a)(3) and (1) of the Act, the Respondent violated Section 8(b)(1)(A) and (2) of the Act. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operation of Glen- Shaw Glass Company, Inc., as set forth in section I, above, have a close, initmate, and substantial relation to trade, 481 traffic, and commerce among the several states, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. The Respondent, Bricklayers, Masons and Plasterers' International Union of America, Local No. 2, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. Glenshaw Glass Company, Inc., is an employer within the meaning of Section 2(2) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By causing, and attempting to cause, Glenshaw Glass Company, Inc., to unlawfully terminate the employment of George S. Diskovich, Andrew Kubis, and Joseph Schneltzer on February 18, 1972, the Respondent engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(2) and (1)(A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY It having been found that the Respondent has engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom and that it take certain affirma- tive action which is necessary to effectuate the policies of the Act. It having been found that the Respondent unlawfully caused Glenshaw Glass Company, Inc., to terminate the employment of George Diskovich, Andrew Kubis, and Jo- seph Schneltzer on February 18, 1972, prior to their com- mencing work for the Company it is recommended that the Respondent make these three individuals whole for any loss of pay they may have suffered as a result of its having caused them to be deprived of employment by making pay- ment to them of a sum of money plus interest equal to that which they would have earned but for the Respondent's discrimination against them, in accordance with the princi- ples enunciated by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing and Heating Co., 138 NLRB 716. Upon the foregoing facts, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 11 The Respondent, Bricklayers, Masons and Plasterers' In- ternational Union of America, Local No. 2, AFL-CIO, its officers, agents, and representatives, shall: 11 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from: (a) Restraining or coercing employees of Glenshaw Glass Company, Inc., or any other employer in violation of Section 7 and Section 8(b)(1)(A) of the Act. (b) Unlawfully causing and attempting to cause Glen- shaw Glass Company, Inc., to terminate the employment of George Diskovich, Andrew Kubis, and Joseph Schneltzer, or any other employee. (c) In any like or related manner restraining or coercing employees in the exercise of any right guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Make whole George Diskovich, Andrew Kubis, and Joseph Schneltzer for any losses in pay they may have sus- tained as a result of the Respondent's discrimination against them, computing the amount due in the manner set forth in the section of this Decision entitled "The Remedy." (b) Notify immediately Glenshaw Glass Company, Inc., and George Diskovich, Andrew Kubis, and Joseph Schnelt- zer that it has no objection to the Company employing these individuals. (c) Post at its business offices in Pittsburgh, Pennsylva- nia, its meeting hall, and all other places where notices to members are customarily posted, a copy of the notice at- tached hereto marked "Appendix." 12 Copies of the notice, or forms provided by the Regional Director for Region 6, shall, after being duly signed by an authorized representa- tive of the Respondent, be posted by it, as aforesaid, imme- diately upon receipt thereof and maintained for at least 60 consecutive days thereafter. Reasonable steps shall be taken by the Respondent to ensure that said notices are not al- tered, defaced, or covered by any other material. (d) Promptly, upon receipt of copies of said notice from the Regional Director, return to him signed copies for post- ing by Glenshaw Glass Company, Inc., it being willing, at the Company's Glenshaw, Pennsylvania, plant and office. (e) Notify the Regional Director for Region 6, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 12 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT cause or attempt to cause Glenshaw Glass Company, Inc., to unlawfully terminate the em- ployment of George Diskovich, Andrew Kubis, and Joseph Schneltzer, or any other employee, in violation of Section 8(b)(2) of the Act. WE WILL NOT restrain or coerce the employees of Glenshaw Glass Company, Inc., or of any other em- ployer, in violation of Section 8(b)(1)(A) of the Act. WE WILL pay George Diskovich, Andrew Kubis, and Joseph Schneltzer any monies they may have lost as a result of their having been unlawfully terminated from employment on February 18, 1972, at the Glenshaw Glass Company, Inc. WE WILL notify, in writing, Glenshaw Glass Compa- ny, Inc., and George Diskovich, Andrew Kubis, and Joseph Schneltzer that we have no objection to the employment by the Company of these three individu- als. BRICKLAYERS, MASONS AND PLASTERERS' INTERNATIONAL UNION OF AMERICA, LOCAL No 2. AFL-CIO (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material . Any questions concerning this notice or compliance with its provisions may be direct- ed to the Board's Office, 1536 Federal Building, 1000 Liber- ty Avenue, Pittsburgh, Pennsylvania 15222, Telephone 412-644-2977.