Boston Cement Masons, Union No. 534

National Labor Relations Board - Board Decisions

Feb 12, 1975

216 N.L.R.B. 568 (N.L.R.B. 1975)

568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Boston Cement Masons and Asphalt Layers Union No.
534, a/w Operative Plasterers and Cement Masons
International Association , AFL-CIO (Duran
Maguire Eastern Corp .) and Peter Frattaroll and
Enrico P. Ventresca. Cases 1-CB-2377 and
1-CB-2386
February 12, 1975
DECISION AND ORDER
BY ACTING CHAIRMAN FANNING AND
MEMBERS JENKINS AND PENELLO
On May 30, 1974, Administrative Law Judge John
M. Dyer issued the attached Decision in this
proceeding. Thereafter, the Respondent Union filed
exceptions and a supporting brief. The General
Counsel filed an answer to the exceptions of the
Respondent.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
The complaint alleges that the Respondent Union
restrained and coerced nonmembers Frattaroli and
Ventresca in the exercise of the rights guaranteed by
Section 7 of the Act "by demanding an exaction of
money which was not an initiation fee or dues as a
requirement for the continuous employment" by the
Employer and thereby violated Section 8(b)(1)(A) of
the Act. The complaint further alleges that the
Respondent Union caused or attempted to cause the
Employer to refuse to hire Frattarroli and Ventresea
"because of their failure and/or refusal to pay an
exaction of money which was not an initiation fee or
dues" to the Respondent Union and thereby violated
Section 8(b)(2) of the Act.
The allegations of the complaint fail to state facts
showing a violation of the Act has occurred. The
complaint speaks only in terms of "an exaction of
money which was not an initiation fee or dues." It is
well-established that a reasonable hiring hall fee may
be imposed upon applicants for referral as long as
such fees are imposed in a nondiscriminatory
manner. These fees have been referred to by a variety
of terms including service fees, referral fees, and
permit fees. There is no allegation that the Union
sought to require nonmembers Frattaroli and Ven-
tresca to pay assessments in excess of costs attributa-
ble to the hiring hall and related collective bargain-
ing. As we find, infra, that Respondent Union had,
by contract, a valid, exclusive referral system
applicable to the job Fratarroli and Ventresca had
been hired for, it was entirely proper for it to require
that they comply with the nondiscriminatory condi-
tions pursuant to which job referrals were made.
Accordingly, in the absence of any allegation that the
Union charged excessive or discriminatory fees as a
condition of referral to employment or for continued
employment, we find that no violation has been
alleged.
While the defectiveness of the complaint in and of
itself requires a dismissal of the action, this is not the
only basis upon which we predicate our dismissal.
We would conclude on the basis of the evidence
adduced at the hearing that no violation of Section
8(b)(1)(A) or (b)(2) has been established. Thus, the
record shows that the Union has a collective-bargain-
ing agreement with the Associated General Contrac-
tors of Massachusetts, Inc., and the Building Trades
Employer's Association of Boston and Eastern
Massachusetts, Inc., which extends from May 1,
1973, to April 30,1974. The Employer was a member
of the Associated General Contractors of Massachu-
setts , Inc., on May 1, 1973, and is bound by the
collective-bargaining agreement . Among the terms of
the applicable agreement is a provision which
requires the Employer to notify the Union "of all
opportunities for employment prior to the filling of
job vacancies" in order that the Union "may refer
qualified applicants" for such employment. A provi-
sion of this nature between parties primarily engaged
in the building and construction industry is given
recognition and approval by Section 8(f) of the Act
which provides that such a practice is not an unfair
labor practice under subsections (a) and (b) of
Section 8.
It is undisputed that the Employer failed to notify
and offer the Union an opportunity to refer qualified
applicants for two positions at the Shawmut Bank
job and that the Employer directly hired Frattaroli
and Ventresca who were not members of Respondent
Union and were from outside the area. The record
also shows that the Union conveyed its objections to
the hiring of Frattaroli and Ventresca to the
Employer on July 3, 1973, when it first learned that
the Employer would hire them, and repeated its
objections again on July 6 and 16, 1973. In each
instance, the Union's protest was over the Employ-
er's failure to give the Union an opportunity to refer
qualified applicants for the two positions. Under
these circumstances , the Union could, without
violating the Act, properly seek the discharge of the
employees in question who had bypassed the
contractual referral system.
We disagree with the finding by the Administrative
Law, ,Judge that there is no exclusive referral system
216 NLRB No. 90
BOSTON CEMENT MASONS, UNION NO. 534
established in section 3 of the agreement and with his
finding that the Union violated Section 8(b)(1)(A)
and (b)(2) by enforcing the provision here. The literal
language of the provision is that the Employer
"agrees to notify the [Union] of all opportunities for
employment prior to the filling of job vacancies in
order that the [Union] may refer qualified applicants
as hereinafter defined, for such employment." The
absence of any specific language requiring the
Employer to hire those who are referred to it, or that
the Union is the only source of applicants, cannot
properly be interpreted to mean that the Employer is
under no obligation to hire qualified applicants
referred by the Union because such an interpretation
would render the provision meaningless.' Thus, we
think it is clear that the Union had a legitimate
contract right to police and enforce when it protested
the hiring of Frattaroli and Ventresca. Although the
Union had not in the past insisted on such a strict
interpretation of the agreement, the explanation can
be found in the fact that during the time in question
here many of the Union's members were out of work.
Merely because the Union failed in the past to insist
upon rigid enforcement of the provisions of the
agreement does not mean that it waived the right to
do so in the future.
While there is testimony concerning the payment
of money by Frattaroli, and a refusal by Ventresca to
pay the 2-percent service fee unless he was made a
member,2 we do not believe that Frattaroli and
Ventresca were denied clearance or referral merely
because of their lack of membership in the Respon-
dent Union, but because local men in the area were
out of work and Frattaroli and Ventresca had not
utilized the Union's referral system. In sum, we
believe that the evidence shows that the motivation
underlying the Respondent Union's protest of the
hiring of Frattaroli and Ventresca was the Employ-
er's failure to give it the opportunity to refer qualified
employees in accordance with the contractual refer-
ral system and that by protesting the hiring of
Frattaroli and Ventresca the Union was merely
policing and enforcing the terms of its collective-
bargaining agreement with the Employer.
Accordingly, for the foregoing reasons, we shall
dismiss the complaint in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint be,
and it hereby is, dismissed in its entirety.
i Secs . 3 and 4 of art. V of the contract closely track the language of Sec.
8(fX3) and (4) of the Act. Both the Senate and House Reports on the bills
that became these sections of the Act refer to what is designated by these
sections as an "exclusive referral system or hiring hall." I Leg. Hist.
569
LMRDA 424, 452, 778 (1959). See also Local 673, Laborers international
Union of America, AFL-CIO (Perini Corporation), 171 NLRB 894, 895,
899-900 ( 1968) We note also that , although there is evidence that the Union
had not insisted upon rigid enforcement of the provisions regarding the
qualifications of hirees , there is no evidence that it had ever allowed its
referral system to be totally bypassed.
2 The Union's assistant business agent , O'Neill, testified that the Union
uniformly charges a service fee , equal to 2 percent of take-home pay, to all
employees who have been referred by the Union within its jurisdictional
area . This fee is used to defray the costs of the referral system and of
collective-bargaining and contract enforcement. Members of the Union also
pay $4.50 per capita per month and a $5 fee in the months when they are
not employed.
DECISION
STATEMENT OF THE CASE
JoHN M. DYER, Administrative Law Judge: Peter
Frattaroli filed the charge in Case l-CB-2377 on July 31,
1973,1 and Enrico P. Ventresca filed the charge in Case
1-CB-2386 on August 8, against Boston Cement Masons
and Asphalt Layers Union No. 534, a/w Operative
Plasterers and Cement Masons International Association,
AFL-CIO (herein called Respondent, the Union, or Local
534), alleging that Local 534, by its officers and representa-
tives and in particular Assistant Business Agent John
O'Neil; caused Duron Maguire Eastern Corp., herein
called the Company or Employer, to terminate their
employment in violation of Section 8(bxl)(A) and (2) of
the Act. The consolidated complaint and notice of hearing
was issued by the Regional Director on January 17, 1974.
In addition to the standard service and jurisdictional
allegations the consolidated complaint alleged that Local
534, through O'Neil, had restrained and coerced Frattaroli
and Ventresca in the exercise of their rights by demanding
an exaction of money which was not an initiation fee or
dues, as a requirement for their continued employment by
the Employer at the building site of the Shawmut Bank
Building Project in Boston, Massachusetts, and caused the
Employer to terminate them in violation of Section
8(b)(1)(A) and (2) of the Act. As amended at the trial of
this matter, Respondent's answer admitted the service and
jurisdictional allegations, its status as a labor organization,
and the status of Business Agent Charles Spillane and
Assistant Business Agent John O'Neil as its agents.
Respondent denied that it had violated the Act in any way.
On the basis of the testimony in this case, I have
concluded that Respondent violated Section 8(b)(1XA) and
(2) of the Act. On the crucial question of whether O'Neil
threatened to pull Local 534 men off the job if Frattaroli
and Ventresca continued to be employed by the Company
on And after July 16, I have not credited O'Neil's denial of
such statement , but have credited the testimony of
Company General Superintendent Russel Pitz, which is
substantiated to an extent by Frattaroli and Ventresca.
The parties were afforded full opportunity to appear, to
examine and cross-examine witnesses , and to argue orally
at the trial in this matter, held in Boston, Massachusetts,
on March 13, 1974. General Counsel and Respondent have
both filed briefs which have been carefully considered.
On the entire record in this case, including my evaluation
of the reliability of the witnesses, based on the evidence
i Unless otherwise stated all events herein took place during 1973
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
received and my observation of their demeanor , I make the
following:
FINDINGS OF FACT
I. COMMERCE FINDINGS AND UNION STATUS
Duron Maguire Eastern Corp., is a Delaware corpora-
tion maintaining its principal office and place of business
in Natick, Massachusetts . The Company is engaged in the
installation of concrete and plastic flooring on construction
sites in Massachusetts and in other States, and has caused
large quantities of concrete and plastic products valued in
excess of $50,000, used by it in such installations to be
purchased or sold and transported in interstate commerce
from and to Massachusetts and other States . The Company
annually performs services valued in excess of $50,000 for
other companies engaged in interstate commerce and also
performs services valued in excess of $50,000 in other
States than Massachusetts.
Local 534 admits and I find that the Company is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
Respondent admits and I find that it is a labor
organization within the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background and Facts
Local 534, as mentioned above , is affiliated with the
Operative Plasterers and Cement Masons International
(herein called Cement Masons) and appears to be mainly a
cement masons local in Boston . The Bricklayers , Masons
and Plasterers International Union of America (herein
called the Bricklayers), which has various locals through-
out the United States and in Massachusetts is a rival
international whose members may work as cement masons.
Frattaroli is a member of Bricklayers Local 15 in Waltham,
Massachusetts , and Ventresca is a member of Bricklayers
Local 52 in Quincy, Massachusetts . Testimony made it
clear that most cement mason work in the central Boston
area which was performed under union contracts came
under the jurisdictional claims of Local 534 and there was
no testimony to show that the Bricklayers had a local in
Boston which claimed that type of work . It was also clear
from Mr . O'Neil's testimony that he considered Boston to
be Local 534's area, and, particularly since construction
work had slowed down beginning in the 1970 's, he felt that
the members of Local 534 were entitled to first priority on
jobs in the area.
The Associated General Contractors of Massachusetts,
Inc., and the Building Trades Employer 's Association of
Boston and Eastern Massachusetts , Inc., have a contract
with Local 534 which extends from May 1, 1973, to April
30, 1974, and is a continuation of a prior contractual
relationship . The Company was a member of the Associat-
ed General Contractors on May 1, 1973, and is bound by
this contract.
Bearing on this case are sections 2, 3, and 4 of article V
of the contract . These are as follows:
Section 2. All employees who are members of the
Union on the effective date of this Agreement shall be
required to remain members of the Union as a
condition of employment during the term of this
Agreement. New employees shall be required to
become and remain members of the Union as a
condition of employment, from and after the seventh
day following the date of their employment, or the
effective date of this Agreement , whichever is later.
Section 3. The party of the first part agrees to notify
the party of the second part of all opportunities for
employment prior to the filling of job vacancies in
order that the party of the second part may refer
qualified applicants as hereinafter defined , for such
employment.
Section 4. The party of the first part agrees to hire
only qualified cement masons whose minimum training
includes completion of an Apprentice Program as a
cement mason as evidenced by a certificate of
completion , or its equivalent . Said program must have
been accredited by the Massachusetts Department of
Labor and Industries , or other similar Agency . If all the
cement masons who have ' completed an accredited
Apprentice Program or its equivalent, have been hired
and there are still job vacancies , then the party of the
first part agrees to hire the applicants with the longest
length of service as a cement mason in the following
order;
First : With the particular employing contractor;
Second : In the geographical area defined in article XII;
and Third: In the industry.
According to testimony , these clauses and particularly
section 4 have been in the contract between these parties
for some 8 to 10 years.
The Company operated mainly in other areas than
Boston and began in the Boston area under this contract
after bidding on the Shawmut Bank job as a subcontractor
for the pouring and finishing of cement . The Company had
other jobs in other areas and during early 1973, employed
some Local 534 members to lay a "trap rock " floor in
another area of Massachusetts . Local 534 learned that the
Company would probably be the low subbidder on the
bank job some time before the Company contacted it.
Russell Pitz is the general superintendent of construction
for the Company and in July was the resident superintend-
ent on the Shawmut Bank job . Concrete finishing opera-
tions were scheduled to start on July 5, and about 10 days
before that , Pitz called Union Business Agent Spillane,
telling him that he planned to use a previous employee,
Dino Centafani , as the foreman on the job. Spillane replied
that he hoped Centafani was clean , that is, that his dues
were paid up , etc. Pitz said he would check that with him.
Centafani was a member of the Bricklayers . Pitz also asked
Spillane for three or four specific cement finishers who had
worked for him previously.
About a week later Pitz told Centafani that Spillane had
indicated Centafani 's union book was not paid up, and
that he did not want any problems . Centafani said that
everything would be taken care of . Around July 1 or 2 Mr.
Kinney, Pitz' superior, said he had talked to Spillane and
had agreed not to use Centafani as the foreman until his
dues were straightened out, adding that he wanted no labor
BOSTON CEMENT MASONS, UNION NO. 534
problems. Around July 3 Pitz repeated this conversation to
Centafani. Centafani later told Pitz he had gone to the
union secretary's home on July 4, had paid the dues and
everything was all right.
In the earlier conversation Pitz and Centafani discussed
the job and who would be employed. Centafani mentioned
Frattaroli and Ventresca and Pitz told him to check with
the Union for the other named individuals and hire
Frattaroli and Ventresca directly.
Respondent's brief admits that it was aware of the
Company's hiring of Frattaroli and Ventresca on July 3,
when Centafam called Assistant Business Agent O'Neil to
request specific men from Local 534. From the size of the
job involved, the Union had an idea of approximately how
many men would be needed on the job, with O'Neil
testifying it was the biggest job then in Boston and would
employ the most people in that trade.
On July 5, the scheduled day of the pour, all the
employees and designated foreman Centafani showed up,
as well as Spillane and O'Neil. Business Agent Spillane
went into the office-trailer with Centafani and Pitz.
Spillane told Centafani that going to the union secretary's
house on a holiday was not a proper way to do things and
things were not completely cleared up yet. Spillane then
reminded Pitt of Spillane's conversation with Kinney, and
Kinney's conversation with Pitz, that Centafani was not to
go to work until everything was squared away. Centafani
was not allowed to start work as the supervisor. Spillane
mentioned that of the members there present, Avery would
probably be the best qualified as the foreman. Pitz agreed,
and Avery was made the foreman for the day. About that
time it started to rain, and the concrete pour was canceled,
with the men being told to return the following day, July 6,
for the pour.
Article I, section V, of the contract, provides that
foremen shall be practical mechanics and members in good
standing of the Cement Masons. Although according to the
testimony only Centafam's dues were mentioned and
nothing was said concerning Centafani's not being a
member of the Cement Masons, Respondent used this as
its reason for not wanting Centafani on the job. Centafam
did not return to thatjob but was placed on another job by
the Company. According to Pitz, nothing was said
concerning Frattaroli or Ventresca on July 5.
On July 6, Pitz asked Avery to be the foreman and
Spillane brought another man to replace Avery. Spillane
mentioned Frattaroli and Ventresca to Pitz and then called
Mr. Gunning, the executive director of the Building Trades
Employer's Association who deals with labor negotiations
and labor relations. Gunning went to the jobsite and there
was a discussion with Spillane and Pitz about "outside"
cement masons working on the•job.
O'Neil testified that he and Spillane told Pitz before
Spillane called Gunning, that the Company was violating
the contract by hiring people. After Gunning arrived, Pitz
stated that Frattaroli and Ventresca had worked for him
before and were good men. O'Neil said that either Spillane
or he said there was too much unemployment in the area
and these outsiders should be sent to other places and let
the Boston men do the work. In regard to Centafani,
O'Neil said Gunning proposed that both Centafani and
571
Avery act as foremen and Spillane would not agree to such
a compromise.
O'Neil stated that Business Agent Spillane went on
vacation that weekend (July 7) and instructed him to stay
on top of the job and if the Company violated the hiring
rules to take them through the grievance route and to
arbitration if necessary.
O'Neil testified that when Pitt called Spillane in late
June he heard Spillane's end of the conversation and
received a report of the rest of the conversation from
Spillane . O'Neil said he heard Spillane tell Pitz that
Centafani had violated the contract when he had previous-
ly worked in Boston and when there was plenty of work
around, not much was said about it, but now they had a lot
of men loafing they were going to go by the contract.
When Centafani called the union hall around July 3, he
spoke to O'Neil. Centafani asked for some specific men
and said he was bringing in two friends. O'Neil said he told
Centafani that it was bad enough for him to come in with
all the unemployment, but Centafani was violating the
contract by bringing in friends as well.
On Monday, July 9, all the men worked and there was no
visit from union officials. The men were notified at the end
of the day that some work had to be done on the building
by another group and that they would be off for about a
week or so and would be notified when to come back.
The next pour was scheduled for Monday, July 16, and
Avery and the other men were notified by a call to the
union office. Centafani called Ventresca and Ventresca
called Frattaroli to report back on July 16. When Pitz got
to the job (on July 16), O'Neil was there and came into the
trailer. Pitz stated that O'Neil said there were two men on
the job who had not paid their union dues. Pitt asked who
they were, and was told it was Ventresca and Frattaroli.
O'Neil testified that he additionally told Pitz that he was
violating the contract, and moreover both Frattaroli and
Ventresca were delinquent in their dues. Pitz agrees that
O'Neil said that Frattaroli had not paid since January and
Ventresca had not paid in 3 years. Pitz had Frattaroh and
Ventresca come into the trailer and he walked away and let
O'Neil talk to them. It is a small trailer and Pitz testified he
heard Frattaroli say that he was paid up and had made a
recent payment. O'Neil told Frattaroli that he was not paid
up and to go down to the union hall and get a receipt to
show that he was paid up. Pitz heard O'Neil tell Ventresca
that he had not paid in years. Ventresca said he had
checked with his international union and was told he did
not have to pay dues to two unions but he would pay the 2
percent fee if O'Neil would let him join Local 534. O'Neil
said no and the conversation stopped. Pitz then asked
O'Neil where they went from there. O'Neil said, "If these
two guys go to work, my men won't." Pita testified that he
had scheduled cement waiting to be poured and he could
do nothing but acquiesce and told O'Neil to send two
replacements. He told Frattaroli to get his receipt and go to
the union hall and straighten it out and then get hold of
O'Neil later and get it cleared up.
As to job duration, Pitz said that Frattaroli and
Ventresca were competent and he would have kept them
employed until completion of the job. The Shawmut Bank
Building will be a 40-story building, and at the time of the
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trial, the Company was working on the 24th floor.
Frattaroli and Ventresca were longtime journeymen and
received journeymen 's wages . Pitz stated that Frattaroli
had worked for him as a foreman on other jobs.
Frattaroli testified that he had been a journeyman
member of Bricklayers Local 15 for some 20 years and had
worked in the Boston area over half of that time through
the early 1970s and then it slowed down. When he worked
in the Boston area Frattaroli paid 2 percent of his take-
home pay to Local 534, which is equivalent to the union
dues less the per capita tax.
On the morning of July 16 when he was called into the
trailer, O'Neil said he had not paid his 2 percent and he
replied that he had paid all along. O'Neil said Frattaroli
owed $40 and Frattaroli said he did not, that he had paid
his dues only the previous week. O'Neil told him and
Ventresca that if they did not pay the 2 percent they could
not work. Frattaroli heard Ventresca say that if O'Neil
wanted 2 percent of his take-home pay he would have to
make him a member of Local 534. O'Neil said no and that
ended the conversation.
, Ventresca corroborated Frattaroli's testimony, noting
that O'Neil said that if the two of them did not pay the 2
percent they were not going to work on that job. Ventresca
added that after O'Neil talked with Pitz he said he was
going to get two more men for the job.
After leaving the job Frattaroli went to the union hall
where he talked to one of the clericals concerning whether
he owed any dues. He was told that he did not owe any
dues but did owe a $14 fine . He paid that amount and gave
the clerical another $ 10 as a dues payment and received a
receipt from the local noting the payment of dues and a
fine . Frattaroli went back to the jobsite and showed Pitz
the receipt but nothing was said and he was not put back to
work.
That night Frattaroli called O'Neil and told him he had
owed no dues but had been made to pay a fine and wanted
his job back. O'Neil said no, that he could not do it. Two
days later Frattaroli called O'Neil at the union hall and
asked for his job back. O'Neil told him to go find a job in
Waltham or some other place outside of Boston where he
belonged . O'Neil said nothing about a contract violation
but only said they had a lot of Local 534 men loafing.
About a week later, Frattaroli called Business Agent
Spillane and asked him for his job back . Spillane replied
that he could not do it , it was O'Neil's problem.
I credit Frattaroli and Ventresca's testimony as to what
O'Neil told them . I also credit Pitz' testimony as to
O'Neil's statement that if he put Frattaroli and Ventresca
to work none of the Local 534 men would work. This
testimony is consistent since O 'Neil told Frattaroli and
Ventresca that they could not work without paying the 2-
percent fee . I do not credit O'Neil 's denial of his statement
to Pitz concerning allowing the two men to work.
Frattaroli 's subsequent conversations with O'Neil and
Spillane are undenied and I credit him.
B. Arguments and Conclusions
Respondent first denied that a threat was made. I have
concluded and found above that it was made . Respondent
next urges that the Company was breaching the contract
by hiring Frattaroli and Ventresca and not referring the
job openings to the Union.
The Union bases its position on contract sections 3 and 4
of article V quoted supra. In essence the Union states it was
supposed to have an opportunity to be told of and to fill
job vacancies with certificated employees and that the
Company did not give them that opportunity when it hired
Ventresca and Frattaroli, who it states do not meet the
minimum qualifications for employees as established in
section 4 of article V. Section 4 provides that companies
agree to hire cement masons whose minimum qualifica-
tions include completion of an apprentice program as a
cement mason as evidenced by a certificate of completion
,.or its equivalent" and further that cement masons who
have completed such an accredited apprentice program "or
its equivalent" are to be hired first, followed by former
employees, then those who are within the Union's
geographical area, and lastly those who have been in the
industry.
There is a state backed apprentice program for cement
masons in Massachusetts which is run by a committee of
Local 534 officials and some AGC representatives. When
the course is completed a certificate signed by a Massachu-
setts official is issued to the new journeyman and
according to Local 534, this certificate is the sine qua non
for job priority under the contract. O'Neil testified that the
words "or its equivalent" meant only an equivalent
certificate and so far as he knew, such certificates were
issued only by the State of California and by the city of
Chicago, Illinois. Essentially, Respondent denies that
reaching a journeyman status is the equivalent of having
completed this Massachusetts apprentice program regard-
less of what apprentice training a journeyman has had.
In regard to contract section 3 of article V, the wording is
"may refer qualified applicants." There is no exclusivity in
this section of the contract, and there is no exclusive
referral system established . Likewise the language does not
require an employer to hire those who are referred to it,
nor that the Union is the only source of applicants.
Apparently such an end is sought by the interpretation
Respondent seeks to place on "or its equivalent" phrase
since practically all of its members would comprise the
total roster of those certificated by Massachusetts under
this particular apprentice program. Of its 300 members
approximately 250 have received these certificates and the
other 50 members have been journeymen for 30 to 40 years
and so their status predated this apprentice program.
O'Neil testified that Local 534 views the status of these 50
members as being equivalent to a certificate. Respondent's
interpretation of the contract terms is new, in that for the
past 8 to 10 years these clauses have been in the contract
and have not been interpreted in that manner, and a
journeyman status was accepted as the "equivalent."
O'Neil and Local 534 claim that in previous years there
was plenty of work and the contract simply was not
enforced , but now that work is short and Local 534 men
need work, the contract is to be enforced to the letter and
that means that journeymen who do not have a certificate
are not entitled to work before certificated men have been
employed . O'Neil claims the contract was written to save
the work for Local 534 members. O'Neil, however, was a
BOSTON CEMENT MASONS , UNION NO. 534 573
temporary assistant business agent who was elected to a
permanent post as assistant business agent shortly before
the problems arose in this case.
The fact is that the contract and the phrase "or its
equivalent" had not been interpreted in the manner which
O'Neil and Local 534 now seek, during the previous 8 to 10
years it had been included in the contract between these
parties . Frattaroli had worked in and out of the Boston
area for 20 years and his status as a journeyman had never
been questioned. It is clear that the AGC representatives
and employees such as Frattaroli and Ventresca under-
stood that a journeyman was a journeyman and having
reached that status it made no difference how you got
there, whether with or without a certificate. Thus, "or its
equivalent" for the previous 8 to 10 years had apparently
been interpreted as having become a journeyman by
undergoing an apprentice program or passing a journey-
man examination . Under this accepted interpretation and
with a nonexclusive referral system, the contract provisions
had been adhered to by the Company. The Union knew
the size of the job before Pitz and Centafani requested
referrals and were informed as to the number of jobs which
would be filled. Since the Company was not bound to an
exclusive referral system and the parties understood how
"or its equivalent" had been interpreted, there was no
question in the Company's mind but what it could employ
Frattaroli and Ventresca.
The nub of the question was not certification but what
amounts of money the "outsiders" were paying to Local
534. The testimony regarding Centafani makes it clear that
Respondent wanted a dues equivalency from Centafani
even though he was not a member of Local 534. The
testimony credited above as to the July 16 confrontation
makes it abundantly clear that Local 534 through O'Neil
wanted money from Ventresca and Frattaroli in order for
them to work in Boston, and even if they were prepared to
pay it, O'Neil on behalf of Local 534 was just as happy to
have their jbbs for members of his local.
O'Neil told Frattaroli that the contract was written to
protect Local 534 men and that it was his job to see that
the contract was enforced . He added that if there was
plenty of work, Frattaroli could have the job, but work was
slow and Frattaroli should work elsewhere . O'Neil further
testified that in referring journeymen to jobs he would give
preference to Local 534 members since he knew them and
their skills and believed that they would live up to all the
contractual agreements including adherence to area work-
ing rules . In fact he believed that only Local 534 members
would adhere to the working rules . O'Neil admitted that he
had known Ventresca and Frattaroli as journeymen in
cement masonry for a number of years.
In this situation we have a recently elected assistant
business agent who apparently is trying to establish himself
as a guardian of Local 534. All of O'Neil's testimony
makes it clear that he wanted to get rid of the "outsiders"
and have them "go where they belonged." To this end he
indulged in the conduct which I have found, seeking first
to exact what he considered dues equivalencies from them.
To cover this attempt a new contract "interpretation" is
used as a cloak.
Respondent , as another defense , urges that there was an
agreement between the Cement Masons and the Bricklay-
ers internationals providing for full faith and credit to each
other's members and allowing them to charge local dues
when a member of one international worked in the
territory of the other. According to Local 534, it received
on May 31, 1972, its Exhibit 1 from its general secretary-
treasurer which stated that at a meeting on May 3, 1972,
between the executive committees of the two international
unions, they had agreed to interchangeable working cards
and clearance cards and would use the dues books of
workmen as their credentials. The letter went on to state
that members working in other jurisdictional areas would
be required to pay service fees equivalent to the dues and
working assessments of the local union each month, minus
the international per capita tax and that each international
would adopt a schedule of receipts for issuance to the
members as evidence of their having paid dues and
working assessments . The letter continued that the Cement
Masons had decided to print a standard record of payment
book to be issued to members of the Bricklayers union
instead of issuing a separate receipt for each dues payment
and notified local officials that they would be hearing more
about it. According to the testimony, nothing further has
been received from either international, but based on this
one document, Local 534 takes the position that it is
entitled to charge "outsiders" who are working in its
geographical jurisdiction the equivalent of dues less per
capita taxes, which amount it charges its own members.
Local 534 charges its working members a monthly per
capita tax plus 2 percent of a member's take-home pay as
dues. This is the 2-percent figure mentioned by O'Neil and
which Frattaroli stated he had paid throughout the years
he worked in the Boston area and the amount Ventresca
refused to pay without getting membership.
It is not possible to conclude, on the basis of this one
document from one international union, that a binding
agreement had been reached between the two international
unions on a joint type of jurisdiction and dues. There has
been no further documentation and no showing that there
is such an agreement between the two internationals which
has been made known to all members.
Absent a clear and convincing demonstration that there
is such an agreement between the two international unions
which has been made known to all the members so that
they could know what their rights, duties, and obligations
are, I cannot accept this document as proof that members
of one international union owe dues to another interna-
tional union, when they are working in its claimed
geographical territory. Respondent's Exhibit 1 does not
meet this test.
In this case Frattaroli was not only charged "dues," but
was also told he had to pay a "fine." Thus moneys were
demanded of Frattaroli and Ventresca while at the same
time they were refused membership in Local 534. This
defense which must include "full faith and credit to
journeymen of another international" would appear to
negate the "certificate" claim supra.
In this case Respondent threatened the Company with a
strike if it continued to employ journeymen who were
denied membership in respondent while being told they
must pay "dues" and "fines" to respondent in order to
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work in its claimed geographical jurisdiction. None of
Respondent's defenses negate its actions which I conclude
and find violate Section 8(bXIXA) and (2) of the Act.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
The activity of Respondent as set forth in section II,
above, and therein found to constitute unfair labor
practices in violation of Section 8(bXl)(A) and 8(b)(2) of
the Act, occurring in connection with the business
operations of the Company as set forth in section I, above,
have a close , intimate, and substantial relationship to
trade , traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
IV. THE REMEDY
exacting "dues" and "fines" from nonmembers because
they work in its claimed geographical jurisdiction, it is
necessary that such practices be stopped . Therefore
Respondent will notify its members and the Associated
General Contractors of Massachusetts Inc., and Building
Trades Employers Association of Boston and Eastern
Massachusetts Inc., that for the duration of its present
contract with them , that it will abide by the interpretation
of the contract phrasing "or its equivalent" which the
parties have previously used ; that journeyman status of a
cement mason is the equivalent of having passed any
apprentice program ; and further that Respondent will not
attempt to unlawfully exact "dues" or "fines" from
nonmembers who are working or seek to work in its
claimed geographical area.
On the basis of the foregoing findings and the record
herein, I make the following:
Having found that Respondent violated Section
8(b)(1)(A) and 8(bX2) of the Act, I shall recommend that it
cease and desist therefrom . Accordingly, since I have
found that Respondent caused the termination of Peter
Frattaroli and Enrico P. Ventresca on July 16, 1973, and
their nonemployment on various dates thereafter when
work was available , it will be ordered that Respondent
make them whole for any loss of earnings suffered by each
of them from and after July 16, 1973 , as a result of the
discrimination practiced against them . Such payment shall
be equal to the amount of wages each would have earned
as wages but for the aforesaid discrimination. Their
backpay shall be computed in the manner set forth in F.
W. Woolworth Company, 90 NLRB 289 (1950), together
with interest at the rate of 6 percent per annum as provided
in Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
Respondent shall also notify Duron Maguire Eastern
Corp., in writing , and furnish Frattaroli and Ventresca a
copy, that it has no objection to their employment by the
Company.
Because of Respondent's changed interpretation of its
contract phrase "or its equivalent" and because it has been
CONCLUSIONS OF LAw
I. Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
2. The Company is an employer within the meaning of
Section 2(2) of the Act.
3.. The Company is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
4. By discriminatorily causing the termination of Peter
Frattaroli and Enrico P. Ventresca , from employment with
Duron Maguire Eastern Corp., on and after July 16, 1973,
Respondent violated Section 8(bX2) and (1XA) of the Act.
5. By unlawfully exacting "dues" and "fines" from
nonmembers while at the same time denying them
membership in Respondent for reasons other than nonpay-
ment of legitimate initiation fees or dues, Respondent
violated Section 8(bx1XA) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]