Cement Masons Union Local No. 526 of the Operative Plasterers' and Cement Masons' International Association, AFL-CIO (P. J. Dick Contracting, Inc.)

National Labor Relations Board - Board Decisions

May 24, 1982

261 N.L.R.B. 1050 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cement Masons Union Local No. 526 of the Opera-
tive Plasterers' and Cement Masons' Interna-
tional Association, AFL-CIO and P. J. Dick
Contracting, Inc. Case 6-CB-5292
May 24, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On December 28, 1981, Administrative Law
Judge Thomas A. Ricci issued the attached Deci-
sion in this proceeding. Thereafter, the General
Counsel filed exceptions and a supporting brief,
and Respondent filed a brief in opposition to the
General Counsel's exceptions and in support of the
Administrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
' The General Counsel has excepted to certain credibility findings
made by Ihe Administrative Ilaw Judge It is the Board's established
policy not to overrule an adminiistrailve law judge's resolutions with re-
spect to credibility unless ihe clear preponderance of all oIf the relevant
evidence convilsnces us that the res'olutions are incorrect Standard Dry
W5all Prxiuct., Inc, 91 NLRB 544 (1950()), cifd 188 F.2d 362 (3d Cir
1951). We have carefully examined the record and find no basis for re-
versing his findings
We agree with the Administrative Law Judge that wvhen P J. Dick
Conltracting, Inc., hired Paul DiOrio on September 2, 1980, he Was not
employed as a supervisor within the meaning of Sec 2(11) of the Act
and, thus, the internal union discipline imposed upon him was not a viola-
tion of Sec. 8(b)(1)(H) of the Act However, our finding is based on the
colnversations between representatives of Respondent and the Charging
Party before DiOrio's hire, and on the credited lestimtony of Management
Representative Haley that Respondent hired DiOrio as a journeyman
with the intention of making him a supervisor when a supervisory open-
ing occurred We alsio rely on the Administrative I aw Judge's finding
that D)iOrio's duties immediately after his hiring, including advising
cement finishers whetn their work would be completed and calling the
hiring hall when more workers were needed, did niot rise toI the level of
the indicia of supervisory status set forth in Sec. 2(11) of the Act. Ac-
cordingly, we find it unnecessary tol rely on the Administrative Law
Judge's legal analysis of the terms and definitiions contained in the collec-
tive-bargaining agreement between the parties
261 NLRB No. 159
DECISION
Statement of the Case
THOMAS A. RIcci, Administrative Law Judge: A hear-
ing in this proceeding was held at Pittsburgh, Pennsylva-
nia, on October 30, !981, on complaint of the General
Counsel against Cement Masons Union Local No. 526 of
the Operative Plasterers' and Cement Masons' Interna-
tional Association, AFL-CIO, herein called the Re-
spondent or the Union. The complaint issued on March
6, 1981, upon a charge filed on January 22, 1981, by P. J.
Dick Contracting, Inc., here called the Charging Party
or the Company. The issue presented is whether the Re-
spondent unlawfully restrained and coerced the Charging
Party in selection of representatives for purposes of col-
lective bargaining, in violation of Section 8(b)(1)(B) of
the Act. A brief was filed by the General Counsel.
Upon the entire record and from my observation of
the witnesses, I make the following:
FINI)IN(,S oi FAC[T
I. THI BUSINESS O THI COMPANY
P. J. Dick Contracting, Inc., a Pennsylvania corpora-
tion, has its principal office in Pittsburgh, Pennsylvania,
and is engaged as a contractor in the building and con-
struction industry. During the calendar year ending De-
cember 31, 1980, in the course of its operations it pur-
chased and received products valued in excess of $50,000
directly from out-of-state sources. I find that the Compa-
ny is engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
11. THE UNION
I find that Cement Masons Union Local No. 526 of the
Operative Plasterers' and Cement Masons' International
Association, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
111. I'HI Atl I.Iil) UNIFAIR LABOR PRACIICI-
Paul DiOrio is a cement finisher, long a member of
Cement Masons Local 526, who for years has enjoyed
the benefits of being referred to one job after another out
of the Local's contractually established multiemployer
hiring hall. In August 1980 P. J. Dick Contracting, here
called Dick, a general construction company, wanted to
hire him directly from another job where DiOrio was
then working for another, unrelated employer, without
bothering to have him first register at the hiring hall and
waiting to be referred out in his regular turn. The Local
526 business agent told both him and Dick's high man-
ager that they could not do that because it would violate
the collective-bargaining agreement which supported the
hiring hall, as well as the Union's rules and constitution.
DiOrio and Dick were even advised that DiOrio, as a
member of the Union, would be subject to disciplinary
action within the Union if he bypassed the hiring hall
and thereby took unfair advantage of his fellow mem-
bers. The cement finisher and company did as they
wished anyway, and on September 2, 1980, the finisher
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CEMENT MASONS UNION LOCAL NO. 526
simply moved from his old job to a new one, and Dick
put him to work right away.
Twenty-two days later, on September 24, internal
union charges were filed against DiOrio, saying he had
violated a number of articles in the bylaws, etc., when he
started working on a new job without clearing through
the union hall. On October 20, he attended a regular
hearing on his charge before the Union's executive
board, and on January 20, 1981, was advised he had been
fined $500 for the rules violation. He paid the fine.
The charge in this proceeding, and a later amendment,
were filed by the Dick Company, and they state what is
said to have been improper conduct by the Union in dif-
ferent ways. The complaint starts by saying that "On
. . .September 2, 1980, Paul DiOrio accepted the posi-
tion of concrete superintendent." It then adds that for
having fined "a supervisor within the meaning of Section
2(11) of the Act," the Union coerced the employer in its
selection of "representatives for the purpose of collective
bargaining," and thereby violated Section 8(b)(1)(B) of
the Act. Denying the commission of any unfair labor
practice, Respondent rests essentially upon the assertion
that when DiOrio came to work on September 2 he was
not a supervisor at all, just an ordinary workman who
was bound by the terms of the collective-bargaining
agreement in effect and its ancillary hiring hall.
The entire case turns upon a very simple, purely factu-
al question: When DiOrio was hired, and started to
work, was he a supervisor within the meaning of the
Act, or was he just a journeyman cement finisher like all
the rest, covered by the contract, who can only be hired
via the hiring hall? In the light of the pleadings, and all
that was said at the hearing, some clarifications are in
order at the outset.
1. If in fact at least during the month of September
when he first came to work for this Company, DiOrio
was not a statutory supervisor, the Union did nothing
wrong in disciplining him as it did. The General Counsel
concedes this. (I use the word statutory because, what
with the apparent conflict between the contractual
clauses pertaining to foremen, and the Taft-Hartley Act
definition of the word supervisor, the parties to this pro-
ceeding are playing a word game and disregarding sub-
stance). The Company equivocated (see the testimony of
Joseph Haley below), but even if it were to claim the
right, under the clear contractual obligation shown here,
to hire a plain journeyman outside the union hall, I
would waste no time responding to that contention.
2. The Union admits that long after his initial hiring, as
much as 3 or 4 months later, DiOrio did take on a super-
visory job in the statutory sense, what the Company
called a "superintendent" over its cement finishers work-
ing simultaneously at more than one of its construction
projects. The Union also concedes that under the hiring
hall written agreement, it has no right to demand that
true, full supervisors must come in rotation out of its
hiring hall registry. The determinative question, there-
fore, is whether during September, and possibly Octo-
ber-for that is when the Union took the disciplinary
action now said to be unlawful-DiOrio was or was not
a workman covered by the hiring hall agreements.
3. Much of the oral testimony by successive employee
witnesses is blurred, both as to the time when things hap-
pened and as to just what it is that DiOrio did on this
job or that, now or then. Some witnesses spoke of his
duties and functions long after the month of October, but
the question is only what were his responsibilities during
September and October. The witnesses were vague, un-
certain as to dates, and greatly generalized in their state-
ments-saying that foremen "usually" do this or that, or
that they did not watch DiOrio the full 8 hours each
day, or that the "system" was such and such. With
DiOrio himself, the first witness, admitting he did very
little out of the ordinary as a cement finisher at the start,
this blurred testimony serves little to support the affirma-
tive burden resting upon the General Counsel to prove
DiOrio was in reality an absolute supervisor from the
start.
4. But the greatest confusion of all flows from the re-
ality that the hiring hall contract in this case expressly
provides that "foremen" must come from the rotating
hiring hall, and may not be hired at will by any employ-
er directly from some other job he may be on at any
given moment. The contract says the first cement finish-
er hired on any job must be "classified as a working
foreman," and must be paid 50 cents per hour more than
the others. It also says that when three or more finishers
are on any one job "a foreman shall be placed in charge
of the work," and that when there are nine or more men,
the foreman shall be paid $1 per hour more than the reg-
ular men. In the case at bar the General Counsel did not
question the legality of a contract which demands that a
foreman "in charge of the work" must be a union man!
In fact, the other parties, each in his own way, stretched
the significance of these provisions in alternate direc-
tions. When the executive director of the Master Build-
ers Association, Haley, speaking on behalf of the con-
tractors, agreed his association "wanted the right to
allow people to quit one job and go to another," he was
saying that not even plain journeymen should have to
come from the hiring hall. And the Union, in its answer
to the complaint, says-as a separate affirmative de-
fense-that even if DiOrio was in truth a supervisor
within the meaning of Section 2(11) of the Act, the Dick
Company still had to clear from the Union's hall before
putting him on any job! These extreme concepts apart, it
remains a fact that even if it is shown DiOrio, in Septem-
ber or October, was "in charge of the work," he was still
subject to the hiring hall strictures.
In such a state of affairs, repeated testimony that
DiOrio told the men what work to do, that he moved
them from one place to another, that he told one or an-
other he would not be needed this afternoon or tomor-
row, that he called the hall because two more men
would be needed tomorrow, that he called for more ma-
terial when what had arrived was not enough, proves
only that he was a foreman-"in charge"-as the con-
tract says. To paraphrase these "in charge" duties, as did
the General Counsel's witnesses, as laying people off, or
hiring people, or responsibly assigning work, does not
strengthen the critical assertion that DiOrio was a "su-
perintendent" during September or October. Section
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DECISIONS OF NATIONAL LABOR REI.ATIONS BOARD
2(11) of the Act does say a supervisor is identified by the
responsibility to transfer, layoff, assign, or responsibly
direct, but in this case all parties are bound to agree-as
per their signed contract-that such duties do not suffice
to prove DiOrio a supervisor at all. If they argued other-
wise they would be branding the contract illegal on its
face.
What all this means is that the real question here is not
whether DiOrio, in September and October, worked
only with his hands 8 hours a day, using tools of the
trade, but whether, in addition to discharging all the
duties of a foreman "in charge of the work," and being
paid extra for that nonstatutory function, he exercised
still greater power in actual charge of all of the cement
finishers used simultaneously by the Dick Company at
many, separate construction sites. And I think the
record, all things considered, fails to prove he in fact
was, before the disciplinary charges were brought, what
Volpatt called a "concrete superintendent."
At the start.of the hearing, Volpatt, vice president of
Dick Company, testified he knew DiOrio very well from
a prior association, and wanted him as a "superintend-
ent" right away, that his purpose in taking him on was to
use him as such from the start. He said he phoned Au-
gustine Rossi, business agent of Local 526, to seek ap-
proval of avoiding the hiring hall. While denying having
said he intended to use DiOrio as a supervisor at a later
date, Volpatt did not testify that he told Rossi he wished
to start DiOrio as an immediate superintendent. Right
there, his total story becomes suspect. Rossi's version of
these prehire talks is the same; that all Volpatt asked was
leave to hire a man directly from another job, with no
mention at all about supervisory status. As to DiOrio,
what he emphasized to Rossi was that this would be "a
better job" for him, although at one point he did testify
"I believe I did tell him I was supposed to be in charge
of all the men .... " In the light of what will be ex-
plained below, I do not credit DiOrio as to this.
Coming to what work he did, DiOrio's testimony
jumps back and forth from his first 2 months to 1981, a
period that is not in dispute now. He did say that during
his first 2 months he worked, "I was mostly working all
day"; "There were days that I worked 8 hours." "Q.
And if there would be any question that would come up
on the job, what you would do as the foreman on the
job is go to the superintendent and find out what the
answer would be and come back and bring it to the men,
isn't that what you did? I'm talking about the very begin-
ning. A. Yeah. Q. Isn't that what you did? A. Yes I did,
to be honest, I don't really recall."
When a cement finisher complained about having been
underpaid, DiOrio sent him to the general construction
superintendent of the Dick Company who supervises all
crafts for resolution of all problems. On another occa-
sion, during that early period, a man hurt his hand on
the job, and DiOrio sent him to the general superintend-
ent, who then authorized the man to go to the hospital.
DiOrio's testimony that the reason he did not himself
decide what to do about that problem was because he
was too busy to drive the finisher to the hospital will not
do; after getting permission to leave from the real super-
intendent, the finisher drove himself to the hospital.
DiOrio spoke of "hiring" and "firing" people, language
that fits well into the definition of a supervisor. But what
he was really saying is that it was his duty to advise fin-
ishers when their work would be finished so they could
quickly get their names on the hiring hall list, and then
calling the hall when more men would be needed. This is
the work of every foreman covered by this contract.
But there is really no need to belabor the detailed tes-
timony of one employee after another, for the most part
relating to much later events. A grievance was filed by
the Union over this business of the Company hiring a
man without going through the hall. It reached the
second stage of arbitration on October 1, where three
representatives of management and three union agents
heard the disputed story from both sides. Rossi, the busi-
ness agent, testified that Volpatt said there "that he
wanted to hire brother Paul DiOrio and, somewhere, at
some time period, he wanted him to be his superintend-
ent. P. J. Dick Company is the general contractor of the
postal facilities that they're building over on the North
Side, which is a gigantic job. From that conversation at
the hearing, I then understood that the reason he was
hiring Paul DiOrio was, that when that job broke and he
needed a supervisor on that particular job, he wanted
Paul DiOrio to run that job." As a witness now Volpatt
denied ever having said his intent in September was to
use DiOrio as a superintendent at a future date. The arbi-
tration panel was deadlocked, three against three. Haley,
then present for the employers, also testified about that
session. Despite occasional evasion, more than once he
proved that the Company's position was-on October
I-that it had a right to bypass the hall for the reason
that it wanted DiOrio to be its superintendent for later,
bigger jobs, it intended to take on. From Haley's testimo-
ny: "Q. Now, recall this if you would, under what condi-
tions did Mr. Volpatt say he wanted to hire this man?
. . A. We-I had, and my Committee's sense of mean-
ing was that Mr. Volpatt was hiring this man as a super-
visor, that's why they took the position initially. It was
later explained that there was a possibility that this man
would work with his tools until the supervisory job
opened up. Our Committee still maintained that the man
had the right to leave one Employer and go with an-
other. "Q. At the time of the Arbitration they hadn't yet
found time when he would be a supervisor and he would
work as a journeyman. Is that . . . A. That's to the best
of my recollection, yes." "Q. And their [the union
agent's] purpose in being there was to complain about a
man quitting his job as a journeyman for one company
and going to work as a journeyman for another compa-
ny? A. That is correct. Q. Okay. And the Company re-
sponded by saying, well, at some point in time, we don't
know when, we're going to make him a supervisor? A.
That's is correct. Q. my question is; on October I of
1980, the company was still telling you that it was some
time in the future that he might become a supervisor? A.
That's the best of my recollection."
But there is no need to evaluate the oral testimony as
to the Company's position and demand at that time.
Haley wrote up his usual contemporaneous minutes of
the meeting, and they were received in evidence. He
1052
CEMENT MASONS UNION LOCAL NO. 526
took pains to say "I tried to be as accurate as I can
.... " The minutes report the words spoken by both
Rossi and Volpatt. They show Rossi demanded the right
to insist that regular employees go only out of the union
hall, and may not switch jobs at will. The minutes also
quote Rossi as admitting "the union does not have con-
trol over hiring of Cement Masons for supervisory posi-
tions." The minutes then go on to report what Volpatt
said, and he is quoted as follows: "The hiring of this man
by P. J. Dick Contracting, Inc. was intended for him to
be a supervisor, when a supervisory job opening oc-
curred. Until that time, the man would be working with
his tools as a journeyman."
There is no need for further comment. This was the
representative of management, clearly on the side of the
Dick Company, the Charging Party here, testifying, hon-
estly, to his best recollection and proving the truth of his
statement in writing.
I find, on the record in its totality, that when the Dick
Company hired DiOrio on September 2, 1980, it intend-
ed to, and in fact for a considerable period of time did
use him as a pure cement finisher, or at best as one of
those foremen who are covered by the hiring hall obliga-
tion anyway. The Union had a perfect right to discipline
the man for violating the contractual understanding, and
presuming to take advantage of his fellow members. This
is the essence of what internal union discipline, lawful
under the statute, means. And the fact that, months later,
DiOrio really became a supervisor within the meaning of
Section 2(1 1), is totally immaterial to this case.
ORDER'
I hereby recommend that the complaint be, and it
hereby is, dismissed.
In Ihe event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board. the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations. be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waised for all purposes.
1053