Bricklayers and Masons Local 2

BRICKLAYERS AND MASONS LOCAL 2 269 Bricklayers and Masons Union, Local No. 2, Inter- DECISION national Union Bricklayers and Allied Crafts- men, AFL-CIO and Jerome Ferretti, and Mac- STATEMENT OF THE CASE Farlane & Hays Co. Case 7-CB-4726 JERRY B. STONE, Administrative Law Judge: This pro- ceeding, under Section 10(b) of the National Labor Rela- tions Act, as amended, was heard pursuant to due notice DECISION AND ORDER on October 29, 1980, in Detroit, Michigan. The charge was filed on March 19, 1980. The com- BY MEMBERS FANNING, JENKINS, AND plaint in this matter was issued on May 2, 1980. The ZIMMERMAN issues concern whether Respondent violated Section 8(b)(1)(A) and (2) of the Act by causing or attempting to On June 1, 1981, Administrative Law Judge cause MacFarlane & Hays Co. to terminate the employ- Jerry B. Stone issued the attached Decision in this ment of Jerome Ferretti because he was not a journey- proceeding. Thereafter, Respondent filed excep- man member of the Union. tions and a supporting brief. All parties were afforded full opportunity to partici- Pursuant to the provisions of Section 3(b) of the pate in the proceeding. Briefs have been filed by the National Labor Relations Act, as amended, the Na- General Counsel and Respondent and have been consid- tional Labor Relations Board has delegated its au- ered. Upon the entire record in the case and from my obser- thority in this proceeding to a three-member panel. vation of witnesses I hereby make the following: vation of witnesses, I hereby make the following: The Board has considered the record and the at- tached Decision in light of the exceptions and brief FINDINGS OF FACT and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and I. THE BUSINESS OF THE EMPLOYER to adopt his recommended Order as modified The facts herein are based on the pleadings and admis- herein.' sions therein. MacFarlane & Hays Co. is, and has been at all times ORDER material herein, a corporation duly organized under, and Pursuant to Section 10(c) of the National Labor existing by virtue of, the laws of the State of Michigan. Relations Act, as amended, the National Labor Re- At all times material herein, MacFarlane & Hays Co. Relations Boact adopts amendeOrd, rhas maintained its principal office and place of business lations Board adopts as its Order the recommended at 25155 Haggerty Road, Farmington, Michigan, herein Order of the Administrative Law Judge, as modi- called the Farmington place of business. MacFarlane & fled below, and hereby orders that the Respondent, Hays Co. is, and has been at all times material herein, en- Bricklayers and Masons Union, Local No. 2, Inter- gaged in general construction business at various jobsites national Union Bricklayers and Allied Craftsmen, throughout the United States. AFL-CIO, Farmington, Michigan, its officers, During a I-year representative period, MacFarlane & agents, and representatives, shall take the action set Hays Co., in the course and conduct of its business oper- forth in the said recommended Order, as so modi- ations, performed services valued in excess of $500,000 fled: of which services valued in excess of $50,000 were per- Substitute the following for paragraph l(b): formed in and for various enterprises located in States "(b) In any like or related manner restraining or other than the State of Michigan. As conceded by Respondent and based on the forego- coercing employees in the exercise of the rights ing, it is concluded and found that MacFarlane & Hays guaranteed them in Section 7 of the Act, except to Co. is, and has been at all times material herein, an em- the extent that such rights may be affected by ployer engaged in commerce within the meaning of Sec- lawful agreements in accord with Section 8(a)(3) of tion 2(2), (6), and (7) of the Act. the Act." 11. THE LABOR ORGANIZATION INVOLVED' Bricklayers and Masons Union, Local No. 2, Interna- In par. I(b) of his recommended Order, the Administrative Law tional Union Bricklayers and Allied Craftsmen, AFL- Judge used the broad injunctive language "in any other manner." Re- CIO, herein called Respondent is and has been at all spondent herein has neither demonstrated a proclivity to violate the Act, nor engaged in conduct so widespread as to demonstrate a general disre- times material herein, a labor organization within the gard for the employees' fundamental statutory rights. Thus, in our opin- meaning of Section 2(5) of the Act. ion the broad injunctive language is not appropriate, and we have modi- fied the recommended Order accordingly. Hickmort Foods. Inc., 242 NLRB 1357 (1979). Member Jenkins would compute the interest due on backpay in ac- cordance with his partial dissent in Olympic Medical Corporation, 250 NLRB 146 (1980). 'The facts are based on the pleadings and admissions therein 259 NLRB No. 36 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ill. THE UNFAIR LABOR PRACTICES Detroit Mason Contractors' Association on behalf of its members with the Metropolitan Detroit Bricklayers Dis- A. Preliminary Issues and Agency Status2 trict Council, International Union of Bricklayers and At all times material herein, Joseph Chadwick, presi- Allied Craftsmen, AFL-CIO. Such agreement was effec- dent,3 and Dennis Bouchard, steward, have been and are tive under its terms from July 1, 1977, to May 31, 1980. now agents of Respondent, acting on its behalf, within The above council was referred to as the Union and was the meaning of Section 2(13) of the Act. composed of Locals 2, 26, 29, and 35 of said referred to The General Counsel alleges and Respondent denies International union. that Donald LeMarbe, the apprentice coordinator for the Briefly summarized, said agreement provided in effect Joint Apprenticeship Committee, a committee set up by that the Association was to keep the Union advised of its contractual agreement between the Detroit Mason Con- membership and of the location and addresses of its tractors' Association and other associations and the member-employers. Said agreement provided that fore- Union, is an agent for Respondent Local 2. Neither the men would be responsible for the hiring and firing of General Counsel's brief nor Respondent's brief address bricklayers; that there would be a steward selected by the issue of Respondent Local 2's responsibility for acts the Union and on each job that such steward would be a of Donald LeMarbe. Nor did the evidence presented member of the local union having geographic jurisdic- appear to squarely touch the elements of such issue. tion over the jobsite, and that such steward have the As I view the overall facts, it is not really necessary to duty to enforce the terms of the agreement. determine if LeMarbe is an agent of Respondent Local 2. The agreement provided that: The facts reveal that President Chadwick's views as to the usage of apprentices on firebrick work were well Section 2. In the employment of workmen to per- known. Respondent Local 2's actions as regards Ferret- form the various classifications of labor covered by ti's employment on firebrick work on March 12-14, this Agreement, the Employer shall give preference 1980, was of such a nature that it would be reasonably to those workmen who have previously worked for foreseen that LeMarbe would be contacted and respond him within the geographic area of the Union, those as he did. As indicated later, herein, the overall facts who have either completed or are currently part of clearly reveal that Respondent Local 2, by Chadwick an approved apprenticeship training program, those and Bouchard, attempted to cause and caused the termi- who possess equivalent ability and are competent nation of Ferretti by MacFarlane & Hays Co. workmen, and those who have been previously em- I do not find that the facts establish that LeMarbe is ployed in the Metropolitan Area for a period in an agent of Respondent Local 2. The facts reveal that excess of two years as brick masons. the Joint Apprenticeship Committee is composed of Section 3. The Employer agrees to notify the trustees of equal number from employers and the Union Union before starting any job within the geographic and that the apprenticeship coordinator is employed by jurisdiction of the Union. All opportunities for em- said committee. His responsibilities, duties, and directions ployment shall be referred to the local having juris- flow from the "Bricklayers' Apprenticeship Committee diction. Standards" and from such trustees. This would not con- stitute him as an agent for Respondent Local 2. I note The agreement also provided that it would be adminis- that LeMarbe, in his testimony, indicated that he con- tered by the Union's constituent locals and that neither strued that his assignment of or permitting of apprentices the Union nor its locals would hinder any employer in to work in the geographical jurisdiction of a local was transferring employees from job to job within the metro- based on consideration of prerogatives of the local's busi- politan area. ness agent and that such agents were in effect his bosses. Further, the agreement provided for implementation of This may indicate that LeMarbe considered himself in an apprentice program, for contributions thereto, for a effect bound by the views of the Local's business agent. reduced pay scale for apprentices, that the employers be It does not establish that said Local had made him an permitted to employ as many apprentices as the Joint agent. Accordingly, the allegation that LeMarbe was an Apprenticeship Committee determines, and that the em- agent of Respondent Local 2 is recommended to be dis- ployer shall employ one apprentice for each 10 journey- missed. men bricklayers on his payroll unless there were no ap- prentices indentured to the Joint Apprenticeship Com- B. The Union-Employer Relationship4 mittee unemployed, or unless there were no apprentices During the time relevant to this proceeding there ex- unemployed. isted a collective-bargaining agreement negotiated by the The apprenticeship program, binding upon the em- ployers by the above agreement, was based on a further 2 The facts are based on the pleadings and admissions therein, unless agreement referred to as "Bricklayers' Apprenticeship otherwise indicated. Committee Standards." Thus, the joint apprenticeship ' The facts establish that Chadwick is also business manager of Brick- committee consisted of five members each from the "As- layers and Masons Union, Local No. 2. International Union Bricklayerson" and from the "Union." Said standards further and Allied Craftsmen, AFL-CIO (herein sometimes called Respondent Local 2). ' The facts relating to the union-employer relationship and to the witness is inconsistent with the facts found, it is discredited as specifically events of March 12-14, 1980, are based on a composite of exhibits, stipu- indicated or upon a consideration of logical consistency of all of the lations, and credited testimony of all witnesses. Where testimony of any facts. BRICKLAYERS AND MASONS LOCAL 2 271 set forth that the committee and the apprentice coordina- agreement without the approval of the Joint Com- tor had certain duties, including the following: mittee, or violates the rules and regulations estab- lished by the Joint Committee, shall be subject to ARTICLE III discipline by the Local Union, pursuant to the Code Duties of the Committee of Trials and Appeals promulgated under Article and the Apprentice Coordinator XVI, Section E. If any apprentice refuses to return to work for an employer as assigned or approved To survey and determine the need for bricklaying by the Joint Committee and accepts emjployment in and stone masonry apprentices in the Detroit Met- any other job or work classification covered in any ropolitan Area, along with potential and existing affiliate's agreement, his Local Union shall forward employment opportunities affording on-the-job his name to the International Union on its Monthly training opportunities, as well as need for school Report form and he shall be listed on the lU's re- training facilities, with a view to practical correla- cords as a "Runaway Apprentice." tion of these factors. To establish training objectives with respect to Chadwick, Respondent Local 2's president, testified both in-school and on-the-job training of bricklay- credibly to the effect that the constitution for Local 2 ing and stonemasonry apprentices; and to develop contained a similar provision relating to "Runaway Ap- and maintain a school curriculum, and to scrutinize prentice." instructional processes on the job and in the school in such a way as to determine that established train- D. implementation of the Apprentice Program ing objectives are realized. Donald LeMarbe credibly testified that he served as * * * , * apprentice coordinator for the Detroit Metropolitan Joint Apprenticeship Committee and Training Program. His credited testimony and the facts as a whole reveal To place apprentices under agreement to a con- that he implemented said program, excepting as indicated tractor and to the Committee and to supervise the that he implemented said program, excepting as dicated . a. t. te later herein, in accordance with the guidelines of the employment and on-the-job training of bricklaying and* sn s yp ne"Bricklayers' Apprenticeship Committee Standards." and stonemasonry apprentices in order to insure that they are afforded reasonably continuous em- Thus, agreements were made whereby certain employers ployment and such diversity of work in the various sponsored apprentices, and the apprentices were inden- phases of the trade as may be possible. tured to said employers. In addition to supervising and checking on the training of apprentices, LeMarbe had * * * * * the duty to secure new sponsors if needed or to aid in securing employment on a temporary basis for appren- The 1977-80 collective-bargaining agreement supra, tices if the sponsoring employer was temporarily out of contained a listing of employers who were members of work for the apprentices. It is noted that the sponsoring the Detroit Mason Contractors' Association. Such listing letter approved by the apprentice committee for a brick- revealed that Monte Costella & Co. was a member of layer apprentice (to be completed by sponsoring compa- said Association. Such listing does not reveal MacFar- ny) sets forth in such letter a statement whereby said lane & Hays Co. to be a member of the Detroit Mason sponsoring company asserted, "If we should run out of Contractors' Association. Considering statements by work, we will notify your committee at once, and re- counsel at the hearing relating to the introduction into quest he be placed with another contractor temporarily." evidence of the collective-bargaining agreement, the As indicated, LeMarbe generally carried out his duties sense of testimony of Brewer, superintendent for Mac- in accordance with the guidelines of the "Bricklayers' Farlane & Hays Co., as regards conversations with Presi- Apprenticeship Committee Standards." The exception to dent Chadwick of Local 2, and the positions taken by such standards appears to lie in the fact that he con- the parties in their respective briefs, it appears to be strued that the business agents for the several locals had without dispute and clear that at least MacFarlane & prerogatives. President Chadwick of Local 2 apparently Hays Co. had agreed, impliedly or otherwise, to operate had been a business agent in the past. LeMarbe, in his in the Detroit area in accordance with such agreement. testimony, revealed that he construed Chadwick to have C. The Constitution; "Runaway Apprentice" prerogatives. Despite the fact that LeMarbe construed that the business agents or President Chadwick had pre- The constitution of the International Union of Brick- rogatives concerning the apprentice program, Respond- layers and Allied Craftsmen, AFL-CIO, had the follow- ent Local 2, by President Chadwick, was the only local ing provision: union which asserted such prerogatives. Respondent Local 2's or President Chadwick's prerog- ative may be said to have been as follows: Apprentices F. An apprentice shall serve his complete term of could not work on firebrick unless working for their apprenticeship as provided by the Joint Committee. sponsoring employer. In such regard, it is clear that Any apprentice who leaves employment covered by Chadwick, acting for Local 2, despite his status as a the terms of any affiliate's collective bargaining trustee on the joint apprenticeship committee, disregard- 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ed the guidelines set forth for said apprentice training the geographical jurisdiction of Local 2. Consistent with program.s Local 2's and Chadwick's policy that an apprentice could work for a sponsoring employer, no problems E. Jerome Ferretti's Background, Employment, and ensued with Local 2. Termination At some point of time in January 1980 Jerome Ferretti This proceeding involves the issue of whether Re- telephoned Sam Brewer and asked if there were any spondent Local 2 attempted to cause or caused the termi- work for bricklayers.6 The record does not reveal nation of Jerome Ferretti, an apprentice bricklayer, by whether or not Brewer made a reply or what such reply MacFarlane & Hays Co. on March 12 and 14, 1980. was if made. In January 1980, Brewer was a bricklayer Jerome Ferretti is the son of Emmit Ferretti, the busi- and not a supervisor. He may or may not have known of ness agent for Local 35, International Union of Bricklay- an oncoming job to be performed by MacFarlane & ers and Allied Craftsmen, AFL-CIO, one of the four Hays Co. at the Ford Rouge plant or of his oncoming locals composing the Metropolitan Detroit Bricklayers status as superintendent on such oncoming job. District Council, International Union of Bricklayers and In any event, in February 1980, apparently around Allied Craftsmen, AFL-CIO. As noted, Respondent February 15, 1980, MacFarlane & Hays Co. made Local 2 is also one of the four locals composing such Brewer a superintendent, over bricklayers, for a job at Council. the Ford Rouge plant. This job may be described as a Jerome Ferretti, in the spring of 1979, had worked as a "firebrick" job (concerning a furnace). laborer for MacFarlane & Hays Co. At such time Sam Around March 12, 1980, MacFarlane & Hays Co.' had Brewer, who later became a superintendent for MacFar- 15 to 20 journeymen bricklayers assigned to work at the lane & Hays Co., was working as a bricklayer. Brewer Ford Rouge plant. Michael DeBerry, a member of Local was a member of Local 35, International Union of Brick- 2, was the bricklayer foreman. Dennis Bouchard, a layers and Allied Craftsmen, AFL-CIO. member of Local 2, was the steward on the MacFarlane It appears that Jerome Ferretti was either a member of Ford Rouge plant job. or became a member of Local 35, International Union of Ford Rouge plant job Bricklayers and Allied Craftsmen, AFL-CIO, in August All of the 15 to 20 journeymen bricklayers had previ- Bricklayers and Allied Craftsmen, AFL-CIO, in August ously been employed by MacFarlane; three-fourths of or September 1979. In any event, Jerome Ferretti filed such bricklayers were memb an application with Local 35 to become an apprentice, later was interviewed by members of or the committee were members of Local 35. Most of the journeymen composing the Detroit Metropolitan Masonry J.AT.C bricklayers worked on a steady basis for MacFarlane. composing the Detroit Metropolitan Masonry J.A.T.C. Bricklayers' Apprenticeship Committee and was accept- Afer the acarane ord ouge plant job had been ed as an apprentice for training reported to the Union and Bouchard appointed as ste- Thus, on or about September 18, 1979, Jerome Ferretti ward by the Union and hired, other employees had been commenced an apprenticeship as a bricklayer. Around hired by MacFarlane by usage of telephone calls. such time, Jerome Ferretti signed an apprenticeship After Bouchard had been appointed steward, Foreman agreement with the Detroit Metropolitan Masonry DeBerry had told him the day before he hired bricklay- J.A.T.C. Bricklayers' Apprenticeship Committee. It fur- ers that he was doing so. ther appears that Jerome Ferretti commenced working at On March 12, 1980, before 8:30 a.m., MacFarlane such time for Monte Costella & Co., a member of the needed to hire some more bricklayers.8 At such time Su- Detroit Mason Contractors' Association. On September perintendent Brewer discussed such need with Foreman 24, 1979, Paul VilleMonte, vice president of Monte Cos- DeBerry. Brewer apparently remembered Jerome Ferret- tella & Co., executed a letter, approved by the referred ti's inquiry about work and suggested to Foreman De- to Joint Apprenticeship Committee, reflecting that said Berry that he hire Ferretti because he had formerly employer was sponsoring Jerome Ferretti as an appren- worked as a laborer for MacFarlane. Foreman DeBerry tice and that his starting date as an apprentice was on agreed to hire Ferretti. Superintendent Brewer tele- September 18, 1979. phoned Emmit Ferretti, Jerome's father and business Jerome Ferretti worked for Monte Costella & Co. agent for Local 35. Brewer inquired as to whether from around September 18, 1979, until around or some- Jerome Ferretti was still unemployed. Emmit Ferretti time in January 1980. At such time around or in January told Brewer that Jerome Ferretti was still unemployed, 1980, Monte Costella & Co. laid Jerome Ferretti off from that Brewer should check with LeMarbe of the joint ap- work. Said employer indicated to Ferretti that it would prenticeship committee. probably call him back to work later but to find other On March 12, 1980, around 8:30 a.m., Superintendent employment in the meantime if he could. Brewer telephoned LeMarbe, apprentice coordinator for It is noted that at some point of time between Septem- the joint apprenticeship committee. Brewer explained ber 18, 1979, and January 1980, Monte Costella & Co. that Jerome Ferretti had worked as a laborer for Mac- performed work and employed Jerome Ferretti within Farlane, was unemployed, and that MacFarlane would 5 As later found, Respondent Local 2 violated Sec. 8(bXIXA) and (2) 6 At some point of time, either in the spring of 1979 or around August by attempting to cause and causing the termination of employment of ap- 1979, Brewer had learned of Jerome Ferretti's intentions to become a prentice Ferretti. If Local 2's disregard of the guidelines of the appren- bricklayer apprentice and had promised to help him if he could. tice program jeopardizes the governmental sanction of said program, it is ' MacFarlane & Hays Co. sometimes hereinafter simply referred to as believed that compliance with the remedial order provided in this case MacFarlane. will be sufficient to correct the cause for such jeopardy. "The job involved consisted of "lirebrick" work. BRICKLAYERS AND MASONS LOCAL 2 273 like to hire Jerome Ferretti. LeMarbe agreed that Mac- Bouchard then spoke to Superintendent Brewer. Bou- Farlane could hire Jerome Ferretti with the understand- chard told Brewer in effect that there could not be any ing that when his sponsoring employer called him back apprentices on the job. Bouchard also told Foreman De- to work that he would be released to return to such em- Berry that there could not be any apprentices on fire- ployer. brick because the Union was not putting apprentices on Thereafter, Foreman DeBerry telephoned Jerome Fer- firebrick at the present time who had less than 2-1/2 retti, hired him, and told him to report to work. Follow- years in the trade. Bouchard also told DeBerry that Fer- ing this, Jerome Ferretti reported to work on March 12, retti was entitled to 2 hours' "show up time." Apparently 1980, around 10 a.m., at the MacFarlane Ford Rouge Bouchard returned to Ferretti and told him about his plant jobsite. Ferretti reported to work as an apprentice "show up" time. At such point in time Jerome Ferretti bricklayer. left the jobsite. It is noted that steward Bouchard credibly testified On March 12, 1980, shortly after Bouchard had tele- that the foreman told him the day before when bricklay- phoned Local 2's office and inquired as to whether ers were going to be hired. His testimony and the overall Jerome Ferretti, the apprentice, could be employed on evidence do not indicate that the foreman told him of the the Ford Rouge plant job, President Chadwick tele- names of the bricklayers who were going to be hired. A phoned Francis Costella of Monte Costella & Co. Chad- composite of all of the credited testimony reveals that wick asked why Jerome Ferretti was not working. Cos- Respondent hired bricklayers, notified the steward that tella told Chadwick that Jerome Ferretti had been tem- bricklayers were being hired, and Bouchard checked out porarily laid off. Chadwick asked Costella, as a favor, to the individuals when hired. call Ferretti back to work. Costella told Chadwick that On March 12, 1980, around 10 a.m., Bouchard saw he would do so as soon as he could."' Jerome Ferretti appear on the MacFarlane Ford Rouge On March 12, 1980, Chadwick also contacted Robert plant job with Superintendent Brewer and Foreman De- Conway, chairman of the District Council, and told him Berry. Bouchard saw Jerome Ferretti go into the furnace that Jerome Ferretti was on the MacFarlane Ford Rouge room. Bouchard then followed Ferretti into the furnace plant job, that Ferretti was an apprentice sponsored by room. Bouchard introduced himself to Jerome Ferretti Monte Costella, and that Local 2 did not intend to let and told him that he was the steward on the job. During him work on the job. Chadwick asked Conway to call the conversation it is clear that Jerome Ferretti also told MacFarlane and tell them that if they wanted to sponsor Bouchard his name. Bouchard asked Ferretti to accom- an apprentice bricklayer that he (Chadwick) would be pany him to the shanty so that he could get him signed willing to have the apprentice committee take the ap- up. At the shanty, Bouchard asked Ferretti to show him prentice who had been out of work the longest and have his union book. Ferretti told Bouchard that he did not such apprentice responsored by MacFarlane, and, if so, have his book with him. Bouchard asked Ferretti if he let MacFarlane employ such apprentice. were an apprentice and Bouchard said he was. Bouchard DeBerry credibly testified to the effect that either he asked Ferretti how long he had been in the trade and telephoned Chadwick or Chadwick telephoned him learned that Ferretti had been in the (bricklayers) trade sometime after 11:30 a.m. In such conversation Chad- for 6 months. Bouchard also ascertained that Ferretti wick told DeBerry that he wanted to clarify that if the was a member of Local 35.9 Bouchard knew that Emmit employer wanted apprentices that it had to go through Ferretti was the business agent for Local 35 and recog- proper channels, that there were apprentices who had nized the name.~~~~~~nized the name. ~been off from work longer than Ferretti. Bouchard told Jerome Ferretti that he had to call DeBerry's testimony was of such a nature that it did Chadwick, president and business manager of Local 2, not appear to reliably reveal the conversation between that he wanted to make sure that it was all right for him him and Chadwick in total effect. Considering the total- to work on the job. At the time Bouchard was not sure ity of the facts and consistency thereof, I find it proper that apprentices would be allowed to work on the job, a to infer that Chadwick conveyed the same message to firebrick job, because he knew that Chadwick had a firebrick job, because he knew that Chadwick had a DeBerry as he conveyed to Conway for relation to Mac- policy of not wanting apprentices working on firebrick FarlaneD unless they had a couple of years in the trade.Bnles.thy aouc f , On March 12, 1980, around 5 to 5:30 p.m., Superin- At this time Bouchard telephoned Local 2's office, tendent Brewer telephoned Jerome Ferretti and asked spoke to Business Agent James McNeilly and asked if Ferretti why he had left the jobsite. Jerome Ferretti told Jerry Ferretti, the apprentice, could work on the Mac- Brewer that he had done so because he had been advised Farlane Ford Rouge plant (firebrick) job. McNeilly said by union steward Bouchard to leave. Brewer told Fer- that he would check, left the telephone briefly, returned, and stated, "We don't want any apprentices working on rett that there must be some misunderstandg, that he andfire brick." "We don't want anyapprenticesworkingon was going to call Ferretti's father, the business agent for fire brick." the local " Brewer belonged to and make sure that he Bouchard told Jerome Ferretti that he could not allow the employer to hire him, that he would have to go was abiding by union regulations. Brewer then tele- home, that "We weren't gonna put any apprentices on phoned Emmit Ferretti and explained what had oc- the job." Ferretti appeared disappointed, and Bouchard curred. Emmit Ferretti told Brewer that he was justified apologized to him for what had transpired. in having Jerome Ferretti on the job. I All of the locals referred to herein are locals of the same Internation- 10 Apparently referring to when work picked up. al and a part of the Bricklayers District Council previously referred to. " Local 35 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On March 13, 1980, Jerome Ferretti reported to work Ferretti was sponsored by Monte Costella, that Ferretti at 8 a.m. at the MacFarlane Ford Rouge plant jobsite. was going to go back to work with Monte Costella, and Ferretti worked the entire shift on March 13, 1980. that, as far as he was concerned, Jerome Ferretti was a Apparently on March 13, 1980, shortly after 8 a.m., runaway apprentice and that any journeyman that steward Bouchard saw Jerome Ferretti at the Ford worked with Ferretti was subject to disciplinary action. Rouge plant jobsite. Bouchard went to the office, spoke Bouchard asked if he should pull the men off the job. to Superintendent Brewer, and asked why Ferretti was Chadwick stated that he did not want the men working back on the job. Brewer told Bouchard that he had tele- with Ferretti because they were subject to fine because, phoned Ferretti's father and cleared the matter with him. as far as he was concerned, Ferretti was a runaway ap- Bouchard told Superintendent Brewer that he had to call prentice and was not in the Union. After the telephone Chadwick to make sure that everything was all right, call concluded, Bouchard told Brewer that Chadwick Bouchard telephoned Local 2's office and spoke to Presi- had told him to call the bricklayers off the job. Bou- dent Chadwick. Bouchard asked if it were all right for chard returned to the furnace where the bricklayers "the apprentice" to come on the job, and if the matter was all straightened out. Chadwick told Bouchard to let to get their tools and go to the bricklayers shant The him talk to Superintendent Brewer. Bouchard turned the telephone over to Brewer. Bouchard heard at least one bricklayers d so. end of the conversation between Brewer and Chadwick. In the shanty Bouchard told the bricklayers that Bouchard believed that everything was straightened out, Jerome Ferretti was a runaway apprentice and that his that Jerome Ferretti could go to work. Bouchard re- dues were not paid up, that the bricklayers were not to turned to his duties. Ferretti either continued to work in work with him on the job. Chapman, a bricklayer, asked the furnace or returned to work in the furnace. Bouchard who said this, and Bouchard replied that this The conversation between Chadwick and Brewer was was what President Chadwick had told him. Chapman to the following effect. President Chadwick told Brewer asked Ferretti if he had a card. Ferretti said that he had that Jerome Ferretti could not work on the job because his dues paid up and showed a receipt to such effect. of "the agreement that apprentices with less than one Bouchard remarked that this was fine but that he was year experience in the trade could not work on a fire still a runaway apprentice in the eyes of Chadwick. brick job." Brewer told Chadwick that he had never Following the above, Jerome Ferretti and Bouchard heard of such an agreement. President Chadwick told went to Superintendent Brewer's office. Brewer tele- Brewer that he would shut the job down if the appren- phoned LeMarbe.'2 Brewer asked LeMarbe if anything tice was not removed. During the conversation Brewer could be done. LeMarbe in effect told Brewer that told Chadwick that he had received permission from Le- Jerome Ferretti would have to leave the jobsite, that he Marbe (apprentice coordinator on the Joint Apprentice- would take responsibility for Ferretti's leaving, ' and that ship Committee) to hire Ferretti. if anything came of this problem that "they" could have At some point of time on March 13, 1980, Conway, his job. Brewer told LeMarbe that he would remove the District Council chairman, reported back to Chad- Jerome Ferretti from the job and that he hoped that this wick that MacFarlane did not want to sponsor an ap- would not harm Ferretti's future as a bricklayer appren- prentice. tice. Apparently, Jerome Ferretti asked to speak to Le- On March 14, 1980, Jerome Ferretti again reported to Marbe on the telephone at that time and was allowed to work at the MacFarlane Ford Rouge plant job at 8 a.m. do so. LeMarbe told Jerome Ferretti that there was He worked thereafter without incident until around I nothing that could be done on his part, that the unions p.m. had to work it out. LeMarbe told Jerome Ferretti that Around 1 p.m., President Chadwick telephoned Super- the best thing he could do was to leave the jobsite. intendent Brewer and informed of MacFarlane. Chad- Jerome Ferretti then telephoned President Chadwick wick asked Brewer again if he were going to remove the at Local 2's office Ferretti then telephoned resident Chadwick apprentice from the jobsite. Brewer told Chadwick that he had no reason to dismiss the man (Jerome Ferretti). that could be done to clear the matter up. Chadwick told Brewer told Chadwick that if he (Chadwick) wanted Jerome Ferretti that there was nothing to be cleared up, him off the job, he (Chadwick) would have to remove that no apprentice was going to work firebrick in his him. Chadwick told Brewer that he was going to call the area because he had too many men out of work in his bricklayers off the job. Brewer told Chadwick that he local. (Chadwick) knew more about union business than he did, Following the above, MacFarlane & Hays Co. pre- that if this was what he thought was right, he should do pared Jerome Ferretti's pay, gave him his check, and it. Chadwick then asked to speak to steward Bouchard. Brewer made arrangements for Bouchard to use the tele- " Bewe testified to the effect that he received a telephone call from ~~~~~~~~~~~~phone. ~~LeMarbe. Ferretti testified that Brewer telephoned LeMarbe. Bouchard testified that he thought a telephone call was made to LeMarbe. Al- When Bouchard spoke on the telephone, the party that though a close question exists and a different finding would not affect the he spoke to first was Business Agent McNeilly. McNeil- overall results, considering the logical consistency of facts, I credit Fer- ly told Bouchard that there was no way that apprentices retti's testimony that Brewer made the telephone call to LeMarbe. I dis- were supposed to work on the Ford Rouge plant job. credit testimony inconsis probltent ms with either Chadwic k o r Emmit Bouchard then spoke to Chadwick. Chadwick told Bou- Ferretti. It is clear that LeMarbe viewed himself in the middle of a possi- chard that he had spoken to Monte Costella, that Jerome ble conflict between two union leaders. BRICKLAYERS AND MASONS LOCAL 2 275 thereby in effect terminated him. Ferretti then left the Hays Co. on March 12, 1980, and by statements by jobsite. The bricklayers then went back to work. Chadwick on March 13, 1980, attempted to cause the re- moval of Jerome Ferretti from employment by MacFar- F. Miscellaneous lane & Hays Co., and by statements by Chadwick and In addition to the foregoing facts, evidence was ad- Bouchard, and by action by Bouchard directed to brick- duced to reveal that apprentices had a different status as layers on the job, attempted to cause and did cause the members in the Union than did journeymen, that appren- removal from employment of Jerome Ferretti by Mac- tices were allowed to vote with respect to establishment Farlane & Hays Co. on March 14, 1980. The facts are of dues but not as to the election of officers, overwhelming that Respondent Local 2's actions were Chadwick also credibly testified to the effect that he because Jerome Ferretti had the status of an apprentice did not consider that firebrick work was the type of member rather than the status of a journeyman member work for an apprentice to learn how to be a bricklayer. I of the Union, and that the said difference in membership do not credit, however, his testimony to the effect that status in the Union had no realistic bearing on the ability his refusal to allow apprentices to perform firebrick of Ferretti to perform the work, firebrick work, to work for nonsponsoring employers was based on his which he was assigned. It is clear that Respondent Local belief that such work was not valuable as learning type 2, by Chadwick (because of his desire to prevent appren- work. It is obvious that on many occasions apprentices tices being hired or used for firebrick work, excepting simply need to work as a matter of economic survival. for sponsoring employers), placed Jerome Ferretti into a Further, Chadwick's attitude as to allowing an appren- status of member out of favor with the Union and one tice to do firebrick work for a sponsoring employer and for which other members were told that they were sub- not as to nonsponsoring employers is somewhat incon- sistent as regards the academic idea ofject to charges and potential fines if they worked with sistent as regards the academic idea of learning.t The facts reveal that Respondent Local 2 prohibited such member. Respondent Local 2 accomplished this by apprentices, even those who were members of Local 2 Chadwick's designating Jerome Ferretti as a runaway ap- or related to officials or agents of Local 2, from working prentice member within the meaning of the Union's con- on "fire brick" jobs for employers who were not the stitution. It is clear from a reading of the relevant consti- sponsors of the apprentices. tutional provisions, the collective-bargaining agreement, The facts clearly reveal that either journeymen or ap- and the evidence relating to the apprentice program that prentices can perform "fire brick" work and that Local Jerome Ferretti was not a runaway apprentice member. 2's actions by Chadwick were not motivated because of Respondent Local 2's actions, by Chadwick, of designa- lack of skill or ability by apprentices to perform firebrick ting Jerome Ferretti as a runaway apprentice clearly work. constituted arbitrary and capricious conduct. It is not necessary to reach such determination however. The G. Contentions and Conclusions overall facts clearly reveal that Respondent's actions The General Counsel contends that Respondent, by were based on discriminatory considerations that Jerome Chadwick, attempted to cause and did cause the discrim- Ferretti lacked good-standing status in the Union as com- inatory removal from employment of Jerome Ferretti by pared to good-standing status of journeymen members. 5 MacFarlane & Hays Co., that Respondent's motivation By such conduct Respondent Local 2 clearly attempted for such action was based on a consideration of Ferretti's to cause and did cause the removal of Jerome Ferretti membership status and upon arbitrary and capricious rea- from employment on March 12 and 14, 1980, and did at- sons, and that such conduct was violative of Section tempt to cause his removal on March 13, 1980. Such 8(bXIXA) and (2) of the Act. Respondent contends that conduct is clearly violative of Section 8(b)(X)(A) and (2) its actions were not based on consideration of Ferretti's of the Act. It is so concluded and found. lack of status in Local 2, arbitrary and capricious rea- sons. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES Considering all of the facts, I find merit in the General UPON COMMERCE Counsel's contentions that Respondent attempted to The activities of Respondent set forth in section 111 cause and did cause the discriminatory removal of Fer- retti from employment on March 12 and 14, 1980. The above, occurring in connection with Respondent's oper- facts overwhelmingly reveal that Respondent Local 2, ations described in section I, above, have a close, inti- by statements by Chadwick and by statements by Bou- mate, and substantial relationship to trade, traffic, and chard, attempted to cause and did cause the removal of commerce among the several States and tend to lead to Jerome Ferretti from employment by MacFarlane & labor disputes burdening and obstructing commerce and the free flow of commerce. "4 In any event, it is not really necessary to determine whether Chad- wick was motivated in his attitude toward use of apprentices because he sought to further work opportunities for those who could vote for his reelection, or because he believed apprentices should only work on mean- '5 I am not persuaded that the evidence is sufficient to reveal that ingful learning jobs. The ultimate facts reveal that Chadwick construed Chadwick was motivated in his attitude toward apprentices by the fact that Ferretti was a "runaway" apprentice, construed that such "runaway that they could not vote in elections concerning officers. Rather, I am apprentice" was a person out of favor with the Union, characterized Fer- persuaded he simply wanted full-time journeymen members to be em- retti as such, and caused the bricklayers to cease working with Ferretti ployed, and if there were a conflict that journeymen members should because of this "out of favor" union status. prevail over apprentice members. 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Craftsmen, AFL-CIO, its officers, agents, and repre- Having found that Respondent has engaged in unfair sentatives shall labor practices, it will be recommended that Respondent 1. Cease and desist from: cease and desist therefrom and take certain affirmative (a) Causing or attempting to cause MacFarlane & action to effectuate the policies of the Act. Hays Co. to discriminate against employees in regard to It having been found that Respondent caused MacFar- hire or tenure of employment, or any term or condition lane & Hays Co. to discharge Jerome Ferretti, in viola- of employment because of their union status or protected tion of Section 8(b)(1)(A) and (2) of the Act, the recom- concerted activities. mended Order will provide that Respondent will notify (b) In any other manner restraining or coercing em- MacFarlane & Hays Co. and Jerome Ferretti that it no ployees in the exercise of their rights guaranteed in Sec- longer objects to Jerome Ferretti's employment with the tion 7 of the Act except to the extent that such rights employer. Second, Respondent will be required to affir- may be affected by lawful agreements in accord with matively request MacFarlane & Hays Co. to employ Section 8(a)(3) of the Act. Jerome Ferretti. Finally, Respondent will be required to 2. Take the following affirmative action which it is make Jerome Ferretti whole' 6 for all losses of wages and found will effectuate the policies of the Act: benefits suffered by him as a result of its discrimination (a) Make Jerome Ferretti wholes of wages (a) Make Jerome Ferretti whole for any loss of wages against him until he is either employed by MacFarlane & Hays Co. in his former or substantially equivalent posi- a tion or until he obtains substantially equivalent employ- against him on March 12, 1980, and from the date of his ment elsewhere. discharge to the date of his reemployment by MacFar- Because of the character of the unfair labor practices lane & Hays Co. to his former or substantially equivalent herein found, the recommenced Order will provide that job or to the date he secures substantially equivalent em- Respondent cease and desist from in any other manner ployment with some other employer, less his net earnings restraining and coercing employees in the exercise of during this period. The loss of earnings shall be comput- their rights guaranteed by Section 7 of the Act. ed in the manner prescribed in F. W. Woolworth Compa- Upon the basis of the above findings of fact and upon ny, 90 NLRB 289 (1950), with interest on the backpay the entire record in the case, I make the following: due computed in accordance with Board policy set out in Isis Plumbing & Heating Co., 138 NLRB 716 (1962), CONCLUSIONS OF LAW and Florida Steel Corporation, 231 NLRB 651 (1977). 1. MacFarlane & Hays Co. is an employer engaged in (b) Notify MacFarlane & Hays Co. and Jerome Fer- commerce within the meaning of Section 2(6) and (7) of retti that it no longer objects to the employment of the Act. Jerome Ferretti by MacFarlane & Hays Co., and that it 2. Bricklayers and Masons Union, Local No. 2, Inter- requests that said Company employ Jerome Ferretti. national Union Bricklayers and Allied Craftsmen, AFL- (c) Post at Respondent's business offices copies of the CIO, Respondent, is, and has been at all times material attached notice marked "Appendix."' s Copies of said herein, a labor organization within the meaning of Sec- notice, on forms provided by the Regional Director for tion 2(5) of the Act. Region 7, after being duly signed by Respondent's repre- 3. By causing or attempting to cause MacFarlane & sentatives, shall be posted by it immediately upon receipt Hays Co. to terminate the employment of Jerome Fer- thereof, and be maintained by Respondent for 60 con- retti, Respondent has engaged in unfair labor practices in thereafter, in conspicuous places, including violation of Section 8(b)(1)(A) and (2) of the Act. all places where notices to employees are customarily 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. posted. Reasonable steps shall be taken by Respondent to Upon the foregoing findings of fact, conclusions of insure that said notices are not altered, defaccd, or cov- law, and the entire record, and pursuant to Section 10(c) ered by any other material. of the Act, I hereby issue the following recommended: (d) Notify the Regional Director for Region 7, in writ- ing, within 20 days from the date of this Order, what ORDER"' steps Respondent has taken to comply herewith. The Respondent, Bricklayers and Masons Union, Local No. 2, International Union Bricklayers and Allied '6 Respondent will make Ferretti whole for any loss of earnings within the meaning and in accord with the Board's decisions in F. W Woolworth Company, 90 NLRB 289 (1950); Isis Plumbing & Heating Co., 138 NLRB 716 (1962), except as specifically modified by the wording of such recom- mended Order. Specifically, Ferretti's loss of work on March 12, 1980, and loss of work on and after March 14, 1980, is included in the period of discrimination for which he is to be made whole. The fact that he later become its findings, conclusions, and Order, and all objections thereto returned to work as an apprentice for Monte Costella is a matter for con- shall be deemed waived for all purposes. sideration in compliance. '" In the event that this Order is enforced by a Judgment of a United " In the event no exceptions are filed as provided by Sec. 102.46 of States Court of Appeals, the words in the notice reading "Posted by the Rules and Regulations of the National Labor Relations Board, the Order of the National Labor Relations Board" shall read "Posted Pursu- findings, conclusions, and recommended Order herein shall, as provided ant to a Judgment of the United States Court of Appeals Enforcing an in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and Order of the National Labor Relations Board." BRICKLAYERS AND MASONS LOCAL 2 277 APPENDIX WE WILL notify MacFarlane & Hays Co. and Jerome Ferretti that we do not object to the em- NOTICE To EMPLOYEES AND MEMBERS ployment of Jerome Ferretti by MacFarlane & POSTED BY ORDER OF THE Hays Co., and that we request that Jerome Ferretti NATIONAL LABOR RELATIONS BOARD be employed. An Agency of the United States Government WE WILL make Jerome Ferretti whole, with in- terest, for any loss of wages and benefits suffered by WE WILL NOT cause or attempt to cause MacFar- reason of the discrimination against him on March lane & Hays Co. to discriminate against Jerome 12, 1980, and from the date of his discharge to the Ferretti or any other employee in violation of Sec- date of his reinstatement by MacFarlane & Hays tion 8(a)(3) of the Act. Co to his former or substantially equivalent job or WE WILL NOT in any like or related manner re- to the date that he secures employment with some strain or coerce employees of MacFarlane & Hays other employer substantially equal to that which he Co. in the exercise of the rights guaranteed in Sec- formerly had with MacFarlane & Hays Co. tion 7 of the Act, except to the extent that such rights may be affected by an agreement requiring memberhip in a labor organization as a condition of BRICKLAYERS AND MASONS UNION, LOCAL employment as authorized by Section 8(a)(3) of the No. 2, INTERNATIONAL UNION BRICKLAY- Act. ERS AND ALLIED CRAFTSMEN, AFL-CIO