Bricklayers, Masons & Plasterers', Etc., Local 2

National Labor Relations Board - Board Decisions

Jan 18, 1962

135 N.L.R.B. 323 (N.L.R.B. 1962)

BRICKLAYERS , MASONS & PLASTERERS ', ETC., LOCAL 2 323
Since the Board, if it had had all these facts before it when it made
its original decision, would have included the city drivers with the
over-the-road drivers, a new election must be ordered on the basis of
these newly discovered and previously undisclosed facts.'
Accordingly, we find that the following employees at the Employer's
terminals at Richmond and Franklin, Virginia, constitute an appro-
priate unit for the purposes of collective bargaining within Section
9(b) of the Act:
All over-the-road and city drivers, including the lease drivers, but
excluding service mechanics, the bookkeeper, office clerical employees,
guards, professional employees, and supervisors as defined in the Act.
[The Board set aside the election conducted on April 22,1961, among
the employees at the Richmond and Franklin, Virginia, terminals of
Archie's Motor Freight, Inc.]
[Text of Direction of Second Election omitted from publication.]
8 The decision herein amounts to a finding that the second of Petitioner' s two objections
to conduct surrounding the election is valid In view of this finding we find it unnecessary
to pass upon the validity of Petitioner 's first objection.
Employer contends that the Petitioner should not be allowed to seize upon the in-
advertent misstatements of the Employer as to its city drivers as a means to obtaining a
new election , since Petitioner's petition excluded "local pick-up drivers," and it is there-
fore not prejudiced by the misstatements . It is not clear to what extent Employer's
statements misled Petitioner into thinking it had no local or city drivers, and we make
no finding in this regard . Petitioner did object, immediately prior to the election, to the
exclusion of the names of the city drivers from the eligibility list. However, it is im-
material whether Petitioner originally sought city drivers or not, since , as stated above,
the Board would have found that only a unit including over-the-road and city drivers was
appropriate , had it had all the facts before it at the time of its decision. Petitioner at
this time expresses a willingness to represent the overall unit herein found appropriate,
and, since its showing of interest is sufficient to go to an election in this larger group,
we shall set aside the first election and direct that a second election be held in the unit
herein found appropriate.
Bricklayers, Masons and Plasterers ' International Union of
America, Local No. 2, AFL-CIO [Wilputte Coke Oven Division,
Allied Chemical Corporation] and Leon Keene . Case No. 6-CB-
829. January 18, 1962
DECISION AND ORDER
On October 30, 1961, Trial Examiner Lloyd Buchanan issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the Intermediate
Report attached hereto. Thereafter the Respondent filed exceptions
135 NLRB No. 43.
324 _,DECISIONS OF -NATIONAL LABOR RELATIONS BOARD)
to the -Intermediate Report and a supporting -brief; I the General
Counsel also filed a brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and. brief, and the entire record in
the case, and hereby adopts the findings of the Trial Examiner only
to the extent they are consistent with the decision herein.
The complaint alleged, the General Counsel stated he would prove,
and the Trial Examiner found, that Leon Keene's discharge was,
caused by the Respondent because he was not a member thereof, and
was therefore in violation of Section 8(b) (1) (A) and (2) of the
Act. We do not believe that any violation was in fact established.
The facts, more fully set forth in the Intermediate Report, indicate
that among the bricklayers employed at the construction project in-
volved herein, there were both residents of the area and men from
outside the area. The record does not establish what proportion of
the area residents were members of the Respondent.
When the Company, proposing a layoff, discussed the matter with
Eshleman, the Respondent's business agent, Eshelman thought that all
out-of -town men be laid off first. The Company did not agree to this,
but did agree to lay off equal proportions of local and out-of-town
men. The result of this action was that Keene, the Charging Party
and an out-of-town man who had not originally been scheduled for
layoff at this time, was laid off.
The Trial Examiner found that the term "local men" as used by
Eshleman had more than a geographic significance and was in fact
synonymous with members of the Respondent. There is nothing in,
the record to warrant such an identification, especially in the absence.
of any,showing that all local men were members of the Respondent.
We therefore cannot infer that the layoff of Keene was caused by
anything other than a desire, in an area of substantial unemployment,
to retain available work for residents of the area . In this posture,.
this case is therefore similar to Plaza Builders,' and, as we did in that
case, we shall dismiss the complaint.
[The Board dismissed the complaint.]
1 The Respondent 's request for oral argument Is hereby denied , because the record, in-
cluding the exceptions and brief , adequately presents the contentions and the positions.
of the parties.
2 Bricklayers, Masons and Plasterers' International 'Union of America, etc., Local 28,
AFL-CIO ( Plaza Builders, Incorporated ), 134 NLRB No. 60.
BRICKLAYERS, MASONS & PLASTERERS', ETC., LOCAL 2 325
INTERMEDIATE REPORT AND RECOMMENDED ORDER
The complaint herein alleges that Local 2 has violated Section 8(b) (1) (A) and
(2) of the National Labor Relations Act, as amended, 73 Stat. 519, by attempting
to cause and causing Wilputte, on or about April 13, 1961, to lay off or otherwise
discriminate against Leon Keene because of his lack of membership in Local 2.
The answer denies the allegations of unfair labor practices.
A hearing was held before me at Pittsburgh, Pennsylvania, on August 23, 1961.
Pursuant to leave granted to all parties, briefs have been filed by the General
Counsel and the Union, the time to do so having been extended.
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT (WITH REASONS THEREFOR)
1. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED
It was admitted and I find that the Company, a New York corporation with
principal office and place of business in New York, New York, is engaged in the
construction of coke oven batteries, one such project being located in Pittsburgh,
Pennsylvania; that during the year preceding issuance of the complaint it purchased
and had delivered to its Pittsburgh jobsite goods and other items valued at more
than $500,000, of which materials valued at more than $50,000 were transported to
said jobsite from points outside the State of Pennsylvania; and that it is engaged
in commerce within the meaning of the Act.
It was admitted and I find that Local 2 is a labor organization within the meaning
of the Act.
H. THE UNFAIR LABOR PRACTICES
Keene, a member of Bricklayers, Masons and Plasterers' Union, Local No. 8, in
Youngstown, Ohio, had been employed as a bricklayer by Wilputte on some eight
projects in various States since 1952 or 1953. (His last employment by another
employer was 3 or 4 years ago.) Upon completion of a job in Ohio, he was told
to get in touch with LeMay, Wilputte's brick superintendent on the instant Pitts-
burgh project. He called LeMay and obtained employment on the Pittsburgh job
a few weeks later, in the latter part of June 1960. Keene obtained a work permit
from Local 2 in Pittsburgh; the circumstances in this connection were not explored
at the hearing.
Morris, Wilputte's general brick superintendent on its various projects and LeMay's
superior, makes the ultimate determination concerning the need to hire bricklayers
or to lay any off. On this project, with LeMay (now deceased) he decided on the
number to be hired, and the word was then passed to the general foreman on the
given battery, in this case Neckerman. Men are usually obtained on the recom-
mendation of the general foreman or of bricklayers already on the job, some being
called by the Company, others applying; they were formally hired by LeMay. On
the battery on which Keene was employed, Neckerman apparently selected or sug-
gested the men to be hired, with recommendations at times from Morris or LeMay.
Morris similarly took up layoffs with LeMay, and they decided how many were
to be cut. Neckerman then generally selected the men to be laid off, again perhaps
with suggestions or direction from Morris or LeMay. (We shall see that on April 13
the final decision was not Neckerman's )
Immediately prior to April 12, Wilputte employed 54 bricklayers on this job.
Of the 54, 4 were known to Morris to be from out of town: Keene, Burke, Robinson,
and Mini . On that day the Company reduced the complement to 36 without notice
to Local 2. The decision was then made to effect a further cutback to 18 within 2
days, and Morris telephoned Eshleman, the business agent of Local 2 and ad-
mittedly its agent , told him of the layoff that day and of the further layoff
contemplated, and asked him to come to the project the next day.
On the morning of April 13, at the jobsite, when Morris stated that more men
were to be laid off that very day, Eshleman asked, "How many out-of- town men are
on layoff?" To this Morris replied, "One." Although Morris did not name that
one, LeMay had that morning told Neckerman to include Burke in his layoff list.
According to Sanctis, Wilputte's construction superintendent on that job, when
Eshleman was told that there were in all four out-of-town men on the job, one
of whom was to be laid off, he said to Morris, "I don't want (you) to lay off any
local men until all the out-of-town men are laid off"; and Morris replied, "These
three (out-of-town) people have been long-time employees with our Company,
and (I do not) feel that we should lay them off at this time . . (It is) our
right to lay off who we felt should be." Eshleman at this point cited the good
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
relationship between the Union and the Company in the past, but declared that
he did not know about the future and could not guarantee that the relationship
would be the same. This threat was not denied by Eshleman, and Sanctis denied
that it was made in connection with the contemplated layoff of the assistant steward,
infra.
Neckerman testified in support of his earlier statement that he selects men for
layoff on the basis of number of dependents, length of prior unemployment, skill,
etc., not because they are local men or out-of-town men; but that on the morning
of April 13 LeMay had told him to lay off Burke. (Whether the Company was
here considering the out-of-town aspect or whether LeMay had another reason
for laying Burke off, we do not know. Any company policy concerning proportion
of out-of-town men was voluntary and not the subject of an agreement with Local 2.
There is no claim here of unlawful action by Wilputte.) After awhile, LeMay came
back to the office where Neckerman was and said, "You will have to lay off Leon
Keene." According to Morris, this was at his direction. Neckerman prepared
the first list, with Burke's name on it, and gave it to LeMay; then the second, which
included Keene, and gave that to LeMay.
Eshleman's version is that the second layoff, from 36 to 18, would as first proposed
have included Heverly, the assistant steward on the project, and that he voiced
two objections: that the Company was discriminating against Heverly,' and that the
50-percent rate of cutback was not being imposed against out-of-town men. The
union steward, Chapman, was at this meeting and, looking over the list of those to
be laid off which LeMay handed him, remarked that Burke was the only out-of-town
man listed. (The record will not enlighten anyone who may wonder whether
Heverly's name appeared on the second list or whether, with the appearance of
Keene's, it had been removed.)
LeMay died prior to the hearing, and Chapman was unavoidably absent, it being
stipulated that no inference be drawn from the failure to produce the latter to
testify.
It must be noted that Eshleman testified only that he did not recall whether,
as Morris testified, when he (Morris) told LeMay to have Keene put on the list,
he asked whether that would satisfy Eshleman, the latter replying that Morris
could never satisfy him. (Sanctis' version was that Morris, in response to Eshle-
man's demand and threat, said that he would lay off a second out-of-town man if
that would make Eshleman "happy," and that the latter replied that Morris could
not now make him happy.) In his testimony Eshleman did not attempt to cover the
entire discussion. I earnestly commend such restraint, for which in other cases one
side or another all too frequently substitutes false testimony.
Admittedly the conversation was heated, and Eshleman did not deny that he
asked about the number of out-of-town men to be laid off, urged that no local men
be laid off until all out-of-town men had been, and in that connection indicated a
possible change in the good relationship which had theretofore existed between the
Company and the Union.
Eshleman argued for a 50-percent cut among the out-of-town men, i.e., that two
be laid off instead of one. I also find that he urged preference for local men as
against out-of-towners, and that he warned of deterioration in the relationship be-
tween the Company and the Union. These were unlawful attempts to, and they
in fact did, cause discrimination against an out-of-town employee, Keene. Here
we must distinguish between alleged company policy to maintain a proportion and
the Union's insistence, pro tanto contrary to the Company's indicated desires, intent,
and practice at the time, against which latter Eshleman was forcefully pressing.
On the issue of credibility, it was noted that Morris testified that, although there
was some question in his mind concerning this, he would have retained Keene until
the completion of the job, certainly to the point where very few were retained.
(Eshleman testified that on April 13 Morris said that the out-of-town men were
"key men.") Yet after Keene was rehired on May 31, he was laid off again on
July 31, when 25 bricklayers were left on the project, this indicating that the
Company did not consider him a keyman and contradicting Morris' statement of
intention to retain him to the end. (The job was completed on August 18.) Counsel
for Local 2 made his point: Morris was guilty of hyperbole in that instance. Simi-
larly, Neckerman erred as he testified variously that he himself decided to lay
off Keene, yet that LeMay, returning to the office, told him to do that. But then
it should also be noted that, after testifying that Chapman had remarked that Burke,
1 There had been some difficulty over company acceptance of responsibility in connec-
tion with an injury which Heverly had previously sustained Here again we are not
faced with any proof or formal claim of discrimination against Heverly.
BRICKLAYERS, MASONS & PLASTERERS', ETC., LOCAL 2 327
naming him, was the only out-of-town man listed for layoff , Eshleman declared that
only Heverly's name was mentioned during the meeting.
Regardless of all of this , there is no conflict on the main issue . Even if Keene
would not have continued to work until completion of the job but for his layoff on
April 13, he would not have been included on that layoff but for Eshleman . (There
is no evidence of another layoff by Wilputte between April 13 and May 31, when
Keene was reemployed .) The causation as alleged is clear : the list was changed
and Keene , who had not been marked for layoff at that time , was laid off on April 13
at Eshleman 's insistence.
The Board has recently again held and it is clear that a contract right may be de-
terminative and that discharge may lawfully be demanded on the basis of such right
with respect to a valid union hiring hall provision ? Contrary to the allegation in
the complaint it was found in Zaich that there was no unlawful demand based on
lack of union membership . Similarly, to the extent that reliance is placed on legisla-
tive history, we must not overlook the fact that Senate Report 187 on S. 1555,3 quoted
in both briefs, in its mention of objective criteria, including residence , which shall
be applied without discrimination , refers to agreements entered into under section
602 of that bill . As for Local 357, International Brotherhood of Teamsters , etc. V.
N.L.R.B.,4 the activities there likewise stemmed from an agreement executed by
the employer and the union.
But in the instant case there is no evidence of an agreement which lawfully limits
either hiring or continued employment to local bricklayers . If it be violative of
Section 8 (b) (1) (A) and (2) for a union to refuse to refer a job applicant since
only a lawful agreement may authorize a union-compelled employment restriction,5
a fortiori the same sections are violated when a union causes replacement of an
employee.
The Union argues a distinction between the proof concerning out-of -town men
and the complaint, which refers to lack of membership in Local 2. While the com-
plaint might well have been more specific and embraced in haec verba the factual
situation , it is sufficiently clear that members of out -of-town locals, like Keene and
Burke ( of the Youngstown , Ohio, local of the same International Union) worked
on the Pittsburgh job under work permits issued by Local 2; and the reference to
out-of-town men was synonymous with and meant those who were not members,
of the Respondent Union . The proof that there was discrimination because these
were out-of-town bricklayers meets the allegation with respect to lack of membership
in Local 2. To the extent of the limited testimony on this point, with out -of-town
men on this job getting work permits from Local 2, it is unrealistic to ignore the
latter 's concern for its members as distinguished from local bricklayers, if any, who
were not members . In fact, it does not appear that there were any local employees
on this job who were not members of Local 2 or that there is any basis for dis-
tinguishing between "local men" and "union members"; or that any such distinction
was intended or understood when Eshleman referred to local men . Under these
circumstances , to pose such a distinction and to decide the case thereon would be,
to emphasize form over substance in an insistence on a formula to be expressed
while ignoring or minimizing the action taken. Nor is it necessary to speculate or
make any assumption , however reasonable, as to whether all of the local men,
whom Eshleman preferred were members of Local 2. The discrimination against
Keene because he was not a member is no less such in the absence of a contract even,
if preference was given to another who was not a member . (We recall that Heverly,
whom Eshleman supported while he insisted on Keene's layoff, is a member of Local,
2.) As an employer may be found to discriminate because of union membership
even if he does not discriminate directly against all union members , so the Union,
can be found to cause discrimination against a nonmember even if it does not act
with respect to all such . In short , Keene was vulnerable and action was taken
against him because he was not a member of Local '2 and regardless of who was
favored thereby.
This identification of local men with members of the local union is, as noted,
limited to the circumstances before us. It should also be noted that our concern
'Building Material and Dump Truck Drivers Local Union No. 420, etc. ( Southern Cali-
fornia Chapter of the Associated General Contractors of America and Matt J. Zaich Co.),
132 NLRB 1044.
' Legislative History of the Labor-Management Reporting and Disclosure Act of 1959,
p. 424.
' 365 U.S. G67.
6 Cf N L R B. v. United Brotherhood of Carpenters and Joiners of America , AFL-CIO;.
et at. ( Merritt-Chapman and Scott Corporation ), 259 F . 2d 741 , 743 (C.A. 7).
328 'DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.is at the moment confined to the question of variance between the complaint and
the proof . For, as pointed out, in the absence of an agreement between employer
and union the distinction between a geographic limitation which might otherwise
be valid and a membership preference which would not be, is here nonexistent.
I realize that, in the absence of formal amendment or of extension by procedure at
the hearing, the issues are normally limited by the pleadings.6 In the Zaich case,
supra ,7 the General Counsel expressly disavowed any theory other than that set forth
in the complaint . But there was no such disavowal in the instant case. Indeed the
issue here presented was made clear by the testimony of the first witness and sub-
sequent witnesses for both sides, and it was fully tried. Under the circumstances
the possible variance between the complaint on the one hand, and the issue pre-
sented and the proof on the other, does not preclude the finding of violation. Since
in the absence of an authorizing agreement , we would have illegality whether the
layoffs were related to either union membership or geography, the variance between
,the allegation and the issue as litigated is not determinative . The Respondent, while
maintaining that "(t)here is a very great difference between `local' men and `members
of Local Union No. 2,' " has recognized this as indicated in its "Statements of
-Question Involved" posited in its brief:
Has a local union , located in a distressed area, been guilty of an unfair labor
practice where its Business Agent urges an Employer, as the job reaches the ter-
minal stage , to lay off out-of-town men first and retain local men to the com-
pletion of the job?
(We can judicially notice, as requested by the Respondent , that Pittsburgh has
been classified as a distressed area of substantial unemployment.
(If a union is permitted to cause the replacement of an employee on the basis of
different trades or skills as suggested in the recent Intermediate Report in Animated
Displays Company, 8 it should be noted that all of the employees involved in that case
were members of the union respondent therein.)
M. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Local 2, set forth in section II, above, occurring in connection
-with the operations of Wilputte described in section I, above, have a close, intimate,
and substantial relation 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
Having found that Local 2 has engaged in and is engaging in certain unfair labor
practices affecting commerce , I shall recommend that it cease and desist therefrom
and take certain affirmative action in order to effectuate the policies of the Act.
It has been found that Local 2, by attempting to cause and causing Wilputte to lay
off Keene because of his lack of membership in Local 2, restrained and coerced em-
ployees and caused the Employer to discriminate, in violation of Section 8(b) (1) (A)
and (2 ) of the Act. I shall therefore recommend that Local 2 cease and desist there-
from. I shall further recommend that Local 2 make Keene whole for loss of pay
sustained by reason of the discriminatory action aforementioned , from April 13 to
May 31, 1961, computation to be made in the customary manner .9 There is no claim
of discrimination or loss of pay subsequent to May 31, nor any question concerning
subsequent employment.
Upon the basis of the above findings of fact and upon the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. Bricklayers, Masons and Plasterers' International Union of America, Local
No. 2, AFL-CIO, is a labor organization within the meaning of Section 2(5) of
the Act.
2. By causing and attempting to cause Wilputte to discriminate in regard to hire
and tenure of employment and terms and conditions of employment in violation of
Section 8 (a)(3) of the Act, Local 2 has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(b)(2) of the Act.
o Florida Steel Corporation ( Tampa Forge and Iron Division ), 131 NLRB 1179
7 See footnote 2.
e IR-902, issued October 5, 1961
Crossett Lumber Company, 8 NLRB 440; Republic Steel Corporation v N.L R R, 311
U.S. 7; F. W. Woolworth Company, 90 NLRB 289, 291-294.
PLUMBERS & PIPEFITTERS LOCAL NO. 471, ETC . 329
3. By restraining and coercing employees in the exercise of rights guaranteed in
Section 7 of the Act, Local 2 has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (b) (1) (A) of the Act.
4. The aforesaid labor practices are unfair labor practices affecting commerce,
within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Plumbers & Pipefitters Local No . 471, United Association of
Journeymen & Apprentices of the Plumbing & Pipefitting In-
dustry of the United States & Canada, AFL-CIO and Leo E.
Murray, Inc., an Individual , d/b/a Wyckoff Plumbing. Case
No. 20-CC-229. January I8, 1962
DECISION AND ORDER
This proceeding is brought under Section 10(b) of the National
Labor Relations Act. Upon a charge filed by Leo E. Murray, Jr.,
an individual, d/b/a Wyckoff Plumbing, herein called Wyckoff, the
General Counsel of the National Labor Relations Board by the Re-
gional Director for the Twentieth Region issued a complaint dated
November 30, 1960, against Plumbers & Pipefitters Local No. 471,
United Association of Journeymen & Apprentices of the Plumbing &
Pipefitting Industry of the United States & Canada, AFL-CIO,
herein called Respondent, alleging that Respondent had engaged in
and was engaging in unfair labor practices affecting commerce within
the meaning of Section 8(b) (4) (i) and (ii) (B) and Section 2(6)
and (7) of the Act, as amended. Copies of the charge, complaint, and
notice of hearing were duly served upon Respondent.
With respect to the unfair labor practices, the complaint alleges, in
substance, that on or about October 13, 1960, and various unknown
dates during October and November 1960, Respondent threatened to
picket the Fortuna Union High School jobsite of Beacom Construc-
tion Company, herein called Beacom, a person engaged in commerce or
in an industry affecting commerce, if Beacom continued to do business
with Wyckoff at said jobsite. The complaint further alleged that on
or about November 2, 1960, Respondent picketed the said jobsite and
that, as a result of the picketing, the employees of Beacom ceased
work. Objects of the above-described acts and conduct of Respondent,
the complaint alleged, were to force and require Beacom and other
persons engaged in commerce or in an industry affecting commerce to
cease doing business with Wyckoff and to force or require Wyckoff
to recognize and bargain with Respondent, although Respondent had
not been certified as the representative of Wyckoff's employees in ac-
cordance with the provisions of Section 9 of the Act.
On December 21, 1960, all parties to this proceeding entered into a
stipulation of facts and jointly requested the transfer of this proceed-
135 NLRB No. 49.