Bricklayers Local 2 (K T G Glassworks)

BRICKLAYERS LOCAL 2 (K T G GLASSWORKS) i 493 International Union of Bricklayers and Allied Craftsmen, Local No. 2, AFL-CIO (K.T G Glassworks Technology, Inc ) and Lawrence Spono. Case 6-CB-5967 28 September 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND DENNIS On 22 September 1983 Administrative Law Judge Thomas A Ricci issued the attached deci- sion The General Counsel filed exceptions and a supporting brief, and the Respondent filed an an- swering brief The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions 2 and to adopt the recommended Order ORDER The recommended Order of , the administrative law judge is adopted and the complaint is dis- missed 1 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 2 The judge made no specific finding that the arrangement between the Company and the Union did not constitute an exclusive hiring hall How ever, his remarks lead to no other conclusion DECISION STATEMENT OF THE CASE THOMAS A Ricci, Administrative Law Judge A hear- ing in this proceeding was held on August 10, 1983, at Pittsburgh, Pennsylvania, on complaint of the General Counsel against International Union of Bricklayers and Allied Craftsmen, Local 2, AFL-CIO (the Respondent or the Union) The complaint issued on March 25, 1983, on a charge filed on February 17, 1983, by Lawrence Sporio (the Charging Party) The sole issue presented is whether the Respondent caused K T G Glass Works Technology, Inc (the Company) not to hire two em- ployees for an unlawful reason and thereby violated Sec- tion 8(b)(2) of the Act Briefs were filed by the General Counsel and the Respondent On the entire record and from my observation of the witnesses, I make the following FINDINGS OF FACT I THE BUSINESS OF THE COMPANY K T G Glass Works Technology, Inc , a Delaware corporation, is a specialty contractor engaged in the con- struction of glass furnaces with its place of business in Pittsburgh, Pennsylvania During the 12-month period ending February 28, 1983, it purchased and received at its Pittsburgh location goods and materials valued in excess of $50,000 directly from points outside the Com- monwealth of Pennsylvania I find that this Company is engaged in commerce within the meaning of the Act II THE LABOR ORGANIZATION INVOLVED I find that International Union of Bricklayers and Allied Craftsmen, Local 2, AFL-CIO is a labor organi- zation within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICE Appraised against objective facts offered by the Gen- eral Counsel in his case-in-chief—both documentary and orally by his own witnesses—the complaint is difficult to comprehend It alleges that at the time of the critical events the Union and the Company involved "have maintained a practice and understanding requiring that Respondent be the sole and exclusive source of referrals of employees to employment with the employer," and that the Respondent "has maintained and operated an ex- clusive job referral system whereby " The parties did sign a collective-bargaining agreement on December 31, 1982, but it contains no union referral provision at all The only clause relating to hiring by any employer is the following The employer agrees to give preferential rights to applicants for employment by journeymen bricklay- ers who reside permanently within the area in which the construction site is located, so long as such construction site is within the territorial limits of The witnesses all agreed that any employer may hire at will within the jurisdiction of this Union and that members of the Respondent Local may find their own jobs without going to the Union, just so long as any em- ployer working within the territorial jurisdiction of Local 2 gives "preferential rights" to area residents In keeping with the contract, the Union does not maintain, and has never maintained, any hiring hall list for out-of- work members The facts on which the General Counsel rests to prove the commission of an unfair labor practice by the Respondent bear no relationship to the complaint I shall therefore decide the case on the basis of what he attempted to prove at the hearing In the fall of 1982 the K T G Company arranged to construct a glass furnace for the Kapp Glass Company in Swissvale, Pennsylvania, which is within the territorial jurisdiction of Local 2 For reasons sufficient unto him- self, Lee Williams, the operations manager of K T G, decided he wanted to cooperate with Albert Mincin, the business manager of Local 2, on that job Was it because 272 NLRB No 79 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he needed 10 good, specially experienced bricklayers, and did not know whom to choose among the hundreds of members of Local 2 who lived in the area, whereas the business manager did know? Was it because he wanted to bring some travelers to the job, i e, bricklay- ers who did not live in the Local 2 geographic area, and therefore was afraid the local area men might refuse to work with them? Was it because he feared that if he chose the men, the presence of some outsiders would provoke picketing by Local 2 9 I do not know his real reason for wanting to get along harmoniously with Mincm but that that is precisely what he wanted is the clearest fact on this record On the new job Williams wanted to bring John Zol- linger as superintendent, an experienced man who had worked for him for years on other jobs He also wanted to bring Matthew Zollinger and Robert Zollinger, the son and nephew of John Zollinger, all three of whom lived outside the Local 2 jurisdiction So, he started by having lunch with a man who had a broader authority in the Bricklayers Union, Michael Acquiline, an Interna- tional representative When he told Acquiline he wanted to bring "travelers" to the job, Acquiline objected Wil- liams testified he said he wanted to bring only three men, but Acquilme recalled he said five For reasons which will appear below, I credit Acquiline In any event, Ac- quilme responded that it would be "tough" to do this with Mincin, and that Williams would have to take the matter up with the Local business manager Acquilme re- fused to take responsibility for the planned disregard of the Union's practice of preference for local bricklayers They then agreed to meet with Mincin On December 30, 1982, a Thursday, the two spent sev- eral hours talking with Mincin Williams began by saying he would be needing very skilled people, and Min= told Williams he could pick and choose as he wished of the many available so long as Min= chose the man who would be steward on that job Williams' version of this conversation continues that he then explained he was of- fering to do the Kapp Company glass furnace job under the terms of Respondent's contract, using 10 bricklayers, if he would be permitted to bring 3 travelers—John Zol- linger, as superintendent, and his 2 relatives Williams' testimony is that Mincin's first reaction was he would have none of that As they talked they came to terms According to Williams it was agreed he would bring the 3 Zollingers and Mincin would send 7 selected specially skilled men as requested to fill the complement of 10 providing Williams signed a union contract Mincin testified Williams started by asking him for the privilege of five travelers, and that he refused that out- right, but did finally agree to three travelers, with Wil- liams signing the union contract and posting the requisite bond to guarantee payment of health and welfare fringe benefits Both men testified that in speaking of the additional local area men needed, Williams mentioned three and only three names of men he would like to have Red Jackson, Al DelThanco, and John Mincin The business manager then said that John Mincin, a relative of his, was working on another job, and his name was forgot- ten With the matter thus settled, Mincin gave Williams a printed copy of the Union's contract so his lawyer could look at it, and the parties agreed to meet again the next day when Williams would bring the signed contract and the guarantee bond That evening Mincin telephoned the men who were to come to work, the job to begin the very next Monday, January 3, right after the New Year's holiday He did call Jackson and DelBianco The next day Williams met with Mincin only Williams testified that he went to this meeting with a list of names, people he thought he would like to have Min= call to come to the job At this point Mincm objected, and told Williams to go back to "basics" under the contract, him- self, Williams, to call whomever he wished, as the con- tract permitted, but all local area men as the contract re- quired, and leave him alone By this time Min= had al- ready communicated with the men needed and he lost patience with Williams Williams backed down and agreed to stick to what they had agreed to the day before, he bringing three travelers, and Mincin's men, al- ready called, to come to work He then signed the con- tract and delivered the guarantee bond There is a conflict in testimony between the two men as to this last conversation Williams testified he told Mincin that, besides the three Zollingers, whom he named, he also told Min= he wished to have Lawrence Sporio and Andy Kupis among the additional seven men needed These are two men Mincin did not call to go to the Kapp job, and whose names are in the complaint in this case as having suffered legal discrimination in em- ployment because of Mincin's having ignored them when choosing among many hundreds of unemployed members of Local 2 To strengthen his story about having men- tioned those two names to Mincin then, Williams said he had written 10 names on a piece of paper, including those 2 men, and had given it to Mincin Mincin said he never looked at what was on that and just left it on the table because it was a departure from the agreement reached the day before The paper was not produced at the hearing Williams said he had notes of the meeting, and called off 11 names which he said had been written on that piece of paper, including those of Sporio and Kupis Mincin's testimony is that Williams never mentioned the names of Sporio and Kupis to him that day, nor at any other time Judging from the way the case was tried, and in the light of the General Counsel's arguments at the hearing, that question of fact—did Williams mention Sporio and Kupis or did he not—is a critical factual issue to be de- cided Considering the total circumstances, all the related facts, and the demeanor of Williams as a witness, I credit the business manager's denial against the testimony of Williams I shall therefore recommend dismissal of the complaint here for two reasons First, because I find that Williams never asked the business manager to send those two men particularly And second, because, even were I to find he did, the evidence in its totality fails to prove an illegal purpose in Mincin's failure to select these two men among the great number available BRICKLAYERS LOCAL 2 (K T G GLASSWORKS) 495 If Williams really believed these particular two men, Spono and Kupis, were especially skilled and therefore desirable, he would have spoken their names during his long talk with Mincin the night before, when he did speak of three local area men Jackson, Delthanco, and Mincin He knew, before that long talk ended, that Min= was going to call the men needed right away, for the job was pressing, what with the holiday weekend im- mediately coming up Williams came to the meeting with Mincin on the 31st after having gotten everything he wanted from the Union—the privilege of having 30 percent of his total complement come from other jurisdictions I do not know why Mincin agreed to such a variance from the contract terms, but it must have been because some work for union members was better than none, with unemploy- ment being as high as it was When Williams retracted, and started all over again, saying he alone would decide who was going to work on this job, Min= blew his top What Williams now wanted was to remove the Union from the picture entirely Understandably Mincin refused even to look at whatever Williams had written down, and told him instead to go back to the beginning and conform with the practice altogether, i e, hiring all local residents himself But because Williams still wanted the three Zollingers, and knew that Mincin was better ac- quainted with who the skilled men were in the local area, he backed off and settled for the three travelers I certainly believe Mincin never even looked at the names Williams said he had written down, even assuming he did list any names at all There is also an unanswered puzzle in the picture At the hearing Williams rattled off 11 names he said he had written on that paper, he listed the 3 Zollingers, Johnson and DelBianco, Spono and Kupis, and 4 more The par- ties stipulated that 10 men were at work the following week the 3 Zollingers, Jackson, and Delbianco—whose names Williams had given Mincin on Thursday—and 5 others The 5 others were not bricklayers whose names Williams said he put on his list But this fits squarely into Mincin's testimony He called the two men Williams mentioned on Thursday and otherwise simply chose among the best skilled men who were waiting for em- ployment One asks If his failure to call Spono and Kupis was unlawful, and if he really looked at the so- called written list, why are not the other five men whose names Williams put on the list also named in this com- plaint? If failure to refer one man requested by an em- ployer in the circumstances of this case was an unfair labor practice, was not the failure to refer the others also illegal? And finally there is no affirmative evidence that Mincin consciously, or for any improper reason, ignored Spono and Kupis when choosing who to call on Thurs- day evening These two men had given testimony dam- aging to the business manager in an earlier Board pro- ceeding, which was dismissed after a hearing The men were then fined by the Union for having given that testi- mony They also campaigned against Min= in an earlier internal union election At the hearing the General Counsel implied Mincin discriminated against them in re- taliation, sending employees to this job who had been out of work for shorter periods than Spono and Mincin Other than the conclusionary statement on the record, there is no evidence supporting the assertion of illegal motive In his brief the General Counsel contends that when Williams and Mincin agreed that the business agent would choose who to send on the job—i e five men apart from the three Zollingers, Jackson, and Del- Bianco—there came into being an exclusive hiring hall contract between the KTG Company and District 2 And because, the argument continues, Mincin selected on a subjective basis, i e, not according to seniority or longest out-of-work basis, the Union committed an unfair labor practice by failing to select Spono and Kubis It is a fact Sporio and Kubis had been out of work longer than the five men Mincin sent out on this job But then, who knows how many of the hundreds who were out of work had also been waiting longer than those five Why are they not all in the complaint? This suggested argument distorts the entire picture of the case The last thing Williams wanted Mincin to do was follow any absolute method of selection such as pure rotation according to mathematical listings of unem- ployed members of District 2 He was absolutely against what the General Counsel describes as the legally re- quired method of selection What Williams said clearly at the hearing is that he wanted not only skilled bricklay- ers, but especially experienced glass furnace builders And this is exactly what he got, for it was admitted all the men who were sent out were very well qualified for that one job Williams even admitted he did not know the local bricklayers well enough to make such a selec- tion himself, and used Mincin for that purpose ORDER' It is recommended that the complaint be dismissed 1 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