Carpenters Local 257 (Dat Construction)

538 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Local 257, United Brotherhood of Carpenters and Joiners of America (DAT Construction Corpo- ration) and Jay Buffington. Case 2-CB-12081 FINDINGS OF FACT 1. JURISDICTION August 5, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On March 31, 1988, Administrative Law Judge D. Barry Morris issued the attached decision. The General Counsel filed exceptions and a supporting brief, and the Respondent filed cross-exceptions and a supporting and answering brief. The General Counsel filed a brief in opposition to the Respond- ent's cross-exceptions. The Board has considered the decision and the record in light of the exceptions , cross-exceptions, and briefs and has decided to affirm the judge's rul- ings, findings,' and conclusions and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. ' The General Counsel has excepted to some of the judge 's credibility findings The Board's established policy is not to overrule an administra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect . Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951). We have carefully examined the record and find no basis for re- versing the findings. Gwynne A. Wilcox Esq., for the General Counsel. Ira A. Sturm, Esq. (Manning, Raab, Dealy & Sturm), of New York, New York, for the Respondent. DECISION STATEMENT OF THE CASE D. BARRY MORRIS, Administrative Law Judge. This case was heard before me in New York City on 6 and 7 January 1988. On a charge filed on 11 August 1987,' a complaint was issued on 28 October, alleging that Local 257, United Brotherhood of Carpenters and Joiners of America (the Union or Respondent) violated Section 8(b)(1)(A) and (2) of the National Labor Relations Act (the Act). Respondent filed an answer denying the com- mission of the alleged unfair labor practice. The parties were given full opportunity to participate, produce evidence, examine and cross-examine witnesses, argue orally, and file briefs. Briefs were filed by the General Counsel and by the Respondent. On the entire record of the case, including my obser- vation of the demeanor of the witnesses, I make the fol- lowing i All dates refer to 1987 unless otherwise specified. DAT Construction Corporation (the Employer or DAT), a New York corporation with an office and place of business in New York City, is a carpentry contractor in the building and construction industry, constructing commercial and office facilities. Respondent admits that the Employer is engaged in commerce within the mean- ing of Section 2(2), (6), and (7) of the Act, and I so find. In addition, the Union admits, and I so find, that it is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICE A. The Issue The issue in this proceeding is whether the Union, acting through its steward, caused the Employer not to hire the Charging Party, in violation of Section 8(b)(1)(A) and (2) of the Act. B. The Facts Jay Buffington, who had been a carpenter for 20 years, was employed by Partitions Service Company , working at the Citicorp building in New York City. He resigned his position with Partitions on 13 March . On that day, he heard that positions may be available with DAT at the same jobsite. That afternoon he telephoned Richard D'Ambrosio, president of DAT, and asked for employ- ment. Buffington testified that D'Ambrosio told him "go to work Monday with your tools."2 When Buffington asked whether he could start employment a week later, on 23 March, D'Ambrosio responded that that was agreeable. On 19 March , Buffington went to the jobsite and spoke with Eugene Garcia , DAT's foreman. He told Garcia that "D'Ambrosio had signed me up for work starting the following Monday and I wanted to check the job out." Garcia was unaware that Buffington had been hired, and told him to speak to John Hanley, the shop steward . Buffington showed Hanley his union card that indicated that Buffington was a member of a sister local, Local 296. Buffington told Hanley that he was "supposed to start work there on Monday ." Buffington testified that Hanely told him that "they were not hiring anybody unless they were Local 257." Buffington then went to D'Ambrosio's office to discuss the matter but a At the hearing, counsel for Respondent objected to Buffington's testi- mony about what D'Ambrosio told him on the ground of hearsay. I sus- tained the objection, and did not receive the testimony for the truth of the matter asserted The General Counsel has requested that I reconsider my ruling. I grant the General Counsel's request and reverse my prior ruling Buffington testified that D'Ambrosio told him "go to work Monday with your tools." In effect D'Ambrosio was offering Buffington a Job. As the court said in Creaghe v Iowa Home Mutual Casualty Co, 323 F.2d 981 , 985 (10th Cir. 1963), "Oral agreements can only be estab- lished by testimony about the conversation that was had between the par- ties." When one of the parties testified as to such a conversation, it does not constitute hearsay See also General Tire of Miami Beach Y. NLRB, 332 F.2d 58, 60 (5th Cir. 1964) ("The verbal act, as any other act, may be proved by one who heard it, saw it, or felt it"). 290 NLRB No. 67 CARPENTERS LOCAL 257 (DAT CONSTRUCTION) D'Ambrosio was unavailable. Buffington left his number and later that afternoon D'Ambrosio telephoned him. Buffington testified that D'Ambrosio told him "he was sorry, that he has to rescind the job offer." Buffington also testified that hiring at the jobsite is done pursuant to a "50/50 rule," that means that half of the employees are the Employer's choices and half are hired through the hiring hall. In addition, Buffington tes- tified that after his conversation with Hanley he did not report it to the Union, or otherwise contact the Union. Hanley testified that during March, Buffington ap- proached him and told him that "he was sent by Richie D'Ambrosio to go to work." Hanley further testified, "I told Mr. Buffington that I was unaware that Mr. D'Am- brosio had hired him. And I told him that if he was look- ing for work to go through the union ." Under question- ing by counsel for the General Counsel , Hanley conced- ed that he told Buffington to "go back to his own local to seek work." Hanley denied that he told Buffington that the Union was not hiring anyone except from Local 257. Garcia, a member of Local 135 , credibly testified that there were several individuals working at the jobsite during March who were not members of Local 257. He also testified that if additional carpenters are needed he contacts the shop steward , who then calls the hiring hall. Robert Olsen , a union official, testified that the follow- ing are the duties of the shop steward: The shop steward is basically the business represent- ative of the business agent on the job. He is the eyes and ears, he is there to see what transpires and to make sure that the members are paid up in their dues, to take the names and social security [num- bers] of the members so that the union can make sure that everybody that is working for the particu- lar contract on that job is being paid their benefits. Olsen testified that the shop steward has no authority to refuse an individual work at the jobsite. Discussion and Conclusions Buffington testified that Hanley told him that the Union was not "hiring anybody unless they were Local 257." Hanley denied making such a statement but instead testified that he advised Buffington "to go back to his 539 own local to seek work." The General Counsel present- ed no corroboration of Buffington's testimony in this regard. On the contrary, the record indicates that during March, employees who were not members of Local 257 were working at the jobsite . I find that the General Counsel has not shown by a preponderance of the evi- dence that Hanley made the statement that the Union would only permit members of Local 257 to work at the jobsite. The complaint alleges that on 19 March , the Union acting through Hanley, refused to allow the Employer to hire Buffington. There is no evidence in the record to support that allegation . Buffington merely testified that he was called by D'Ambrosio on the afternoon of 19 March and told that the job offer was rescinded. D'Am- brosio was not called as a witness nor is there any evi- dence in the record that any union representative caused D'Ambrosio to withdraw the job offer. See Railway Clerks Local 1902 (Safety Cabs), 180 NLRB 126, 127 (1969). Accordingly, the allegation is dismissed.3 CONCLUSIONS OF LAW 1. DAT Construction Corporation is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent has not engaged in the unfair labor practice alleged in the complaint. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed4 ORDER The complaint is dismissed. s In view of my disposition of this case , it is unnecessary for me to determine whether Hanley was an "agent" of the Union . I note, howev- er, that the record indicates that the steward had no authority in connec- tion with the hiring of personnel . Under the 50/50 rule, either the indi- vidual was hired by the Employer or the employee was referred through the union hall. In either case, the steward was not involved in choosing or approving the employee. 4 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings , conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses