Coleman Bros. Corp.

National Labor Relations Board - Board Decisions

Oct 23, 1962

139 N.L.R.B. 393 (N.L.R.B. 1962)

COLEMAN BROS. CORPORATION 393
Coleman Bros. Corporation and Omer Fortin and Hoisting and
Portable Engineers Local No. 4, International Union of Oper-
ating Engineers ; Massachusetts Labor Relations Division of
New England Road Builders Association , Parties to the
Contract
Hoisting and Portable Engineers , Local No. 4, International
Union of Operating Engineers , and its business agent, Larry
P. Salvucci and Omer Fortin and Coleman Bros. Corporation;
Massachusetts Labor Relations Division of New England Road
Builders Association, Parties to the Contract . Cases Nos.
1-CA-3710 and 1-CB-717. October 23, 1962
DECISION AND ORDER
On June 20, 1962, Trial Examiner Lloyd Buchanan issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondents had not engaged in the unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed in
its entirety, as set forth in the attached Intermediate Report. There-
after, the General Counsel filed exceptions to the Intermediate Report
and a supporting brief and the Respondents filed briefs in support of
the Intermediate Report.
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 [Members Leedom, Fanning, and Brown].
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 and the entire record in the case, including the ex-
ceptions and briefs and hereby adopts the findings, conclusions, and
recommendation of the Trial Examiner.
[The Board dismissed the complaint.]
INTERMEDIATE REPORT AND RECOMMENDED ORDER
The complaint herein ( issued February 13, and amended March 2, 1962, charges
filed February 5, 1962) alleges that , since on or about September 1, 1961, the Com-
pany has violated Section 8(a)(3) and (1) of the National Labor Relations Act, as
amended, 73 Stat. 519, by giving effect to a collective-bargaining agreement which
requires that the Union shall be the exclusive source of supply for employees within
its jurisdiction , by giving effect to an arrangement' or practice which requires or
causes discrimination against employees or applicants because of nonmembership
in the Union , and also by discriminating against Fortin because of his nonmember-
i This term is here used inclusively and covers the alternative allegations concerning an
oral agreement or understanding.
139 NLRB No. 25.
:394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ship or the Union's refusal to approve him for employment; and that the Union has
violated Section 8(b)(1) (A) and (2) by maintaining and enforcing a collective-
bargaining agreement described as above, by compelling the Company to employ
only members of or persons approved by it, by maintaining and enforcing an arrange-
ment or practice which requires the Company to discriminate against employees
because of nonmembership in the Union, and by causing the Company to discrimi-
nate against Fortin because of his nonmembership or because of the Union's refusal
to clear him. The answers as amended deny the allegations of violation.
A hearing was held before Trial Examiner Lloyd Buchanan at Fall River, Massa-
'chusetts, on March 22, 1962. Pursuant to leave granted to all parties, briefs have
been filed by the General Counsel, the Company, and the Union, the time to do so
having been extended.
This is one of a series of three cases (each is a consolidated case), the other two
involving Daniel O'Connell's Sons, Incorporated and Dravo Corporation. In addi-
tion to the respective employer respondents, each of the three cases names as re-
spondents the Union herein and its business agent, and Fortin as the Charging Party.
The cases were heard at approximately the same ,time, being scheduled for and
opening on successive days.
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 Massachusetts corporation with
principal office and place of business in Boston, Massachusetts, has been engaged in
grading and earth removal at a jobsite in Raynham, Massachusetts; that it annually
purchases and causes to be transported in interstate commerce large quantities of
supplies and materials, and receives such to the extent of more than $50,000 from
points outside the Commonwealth of Massachusetts; and that it is engaged in com-
merce within the meaning of the Act.
It was admitted and I find that the Union is a labor organization within the mean-
ing of the Act.
H. THE UNFAIR LABOR PRACTICES
Fortin is and has been a member of Local 98 of this same international union, the
Operating Engineers. There is no issue here concerning his general experience al-
though there is testimony that he said that he would like to work on a grader. In
1960. while employed by Coleman elsewhere on a job which was about to be finished,
Fortin had turned down an offer for longer employment by another employer, and
Hagan, Coleman's superintendent, had expresesd his appreciation and told Fortin to
look him up if he thereafter needed work in the area. If this testimony was sub-
mitted to show a discriminatory refusal to employ Fortin on the instant site, it pro-
vides a motive rather to support the Company's position that he was in fact offered
a job here.
Now, early in September 1961, Fortin recalled himself to Job Superintendent
Hagan on the Raynham site, told him he was looking for work, and was informed
that there would be a job for him in about 2 weeks; the Company first had to put
its own keymen to work (there is no issue in this respect); and Fortin should stop
in as often as he could. There was one machine with an operator on the job at
that time. Fortin did stop by about every other day thereafter.
Two or three days after this conversation Fortin again spoke to Hagan, who
told him that it looked good for a job, machinery was coming in, and that he should
keep checking Still according to Fortin, Hagan told him about 2 days later that a
machine was coming in on Friday or Saturday, and that he would have a job for
him on Monday morning. Hagan thereupon took Fortin to where Cardoza, the
job steward, was working. The latter asked for Fortin's union book and, shown it,
allegedly remarked that Fortin could go to work as far as he, Cardoza, was concerned,
but that he would have trouble with Salvucci, the Union's business agent
Without specifically denying this, Cardoza testified that Hagan declared that Fortin
would be put on as soon as something was available, Cardoza replying that it was
all right with him, further that Fortin said that he had operated cranes, dozers, and
graders, and would like to get on a grader, to which Cardoza replied that there were
no grader jobs at the time and he would call Fortin if a man were needed for that,
and then told Fortin to leave his name and address. Cardoza also asked Fortin
-whether he could run a rubber-tired scraper known as a DW-21, and Fortin replied
in the negative Cardoza testified also that as steward he checks the books of new
men whom he does not know, to see whether their dues are paid up (there is a 7-day
membership requirement) and that a new man generally produces his book without
being asked, as Fortin now did On his part, Fortin did not deny this latter.
COLEMAN BROS. CORPORATION 395
According to Fortin, when he came to the site the following Monday ready to
work, Hagan told him that Salvucci "sent a man down" for a job Fortin was sup-
posed to have, and that Hagan "didn't want to get involved one way or the other."
But still according to Fortin, the new operator was not there at the time, and in fact
arrived later and then went to work.
Aside from Fortin's uncertainty as to dates (the machine on which he was to work
arrived on September 29, not early that month, and he was to start on October 2),
he impressed me in this and the other cases as forgetful and unreliable . The impor-
tant remarks which he attributed to Cardoza to show union control of these jobs
and Salvucci's opposition do not appear at all in a statement which he previously
issued. Also of some although lesser significance is his contradictory earlier state-
ment that he went to the job daily. The testimony which I credit does not show that
Cardoza or Salvucci indicated to Fortin that the Union opposed his employment.
His inconsistency in attempting to show that they did reflects on his credibility.
It should further be noted that there is no evidence to support the General Coun-
sel's claim that, because of the written agreement between the Company and the
Union, Cardoza, the Union' s agent, is also an agent of the Company so that if he
interfered, the Company would be liable therefor even if it simultaneously put
Fortin to work'
Hagan testified reliably that 2 or 3 weeks after Fortin had approached him on
this job, he told Fortin that he expected the D-4 machine the following Monday.
He had previously told Fortin that it was the Company's custom to put its own men
to work first and that most of the machines arrived at the job with operators.
Hagan's recollection was several times refreshed , and he found it necessary to dis-
avow his prior statement that he would not have hired Fortin because he was not
hired by the Union. While that prior statement constitutes an admission against
interest, as Hagan there continued that he would feel obligated to replace a man who
had not been cleared by the Union, he added the remark that this had never hap-
pened but he was stating his "understanding of what [he] would have to do."
Here we must note first that, aside from the question of evidence of any agree-
ment to that effect between the Company and the Union, the requirement of clear-
ance is not unlawful in the absence of proof of discriminatory refusal to refer or
to hire.2 As for any unlawful practice based an Hagan's understanding or mis-
understanding of an agreement, practice cannot be found in the face of the state-
ment that it had never happened. Nor should we overlook that fact that in that
same earlier statement Hagan had declared that "there is no obligation to get our
operators solely through the union or to clear the new hires through it. I have
never followed the practice."
From Hagan's prior statement it appears that it was during his second conversa-
tion with Fortin on this job that he referred the latter to Cardoza, who then told
Hagan that nothing could be done for Fortin; and Hagan then told Fortin to
straighten it out with Salvucci. From Fortin's testimony that during his second
conversation with Hagan the latter said that he expected several machines he fol-
lowing week, it appears similarly that the conversation with Cardoza and the latter's
reference to Salvucci occurred prior to Fortin's third conversation with Hagan,
when he was told to come to work on the following Monday. Thus it would
appear that Hagan did not in fact refuse employment to Fortin because of any
objection by Cardoza or Salvucci, but on the contrary told him to come to work.
Despite his earlier statement that if the situation arose he would release a man
who did not obtain union clearance, Hagan testified definitely first that most oper-
ators come with the machines so that he does not generally call the Union for
men; that men report to the steward (Hagan does not send them to him)
after they are hired; and that it is not his understanding that, if the steward says
that a man is not a member of the Union and has not been cleared, the man must
be released Asked to explain why he told Fortin to see Salvucci when the latter
appeared on the site on October 2, Hagan explained that, although it was not
his concern, he was suggesting that Fortin straighten out his foreign hook with
the Union. If this early form of notice required by the contract after employment
was to avoid delay or possible argument with the Union, it falls short of proof of
violation, coming as it did after an offer to employ Fortin. In the latter connec-
tion, we must note Fortin's admission that Hagan, when he told him to come to
work on Monday morning, knew that Fortin was not a member of Local 4, the
Union herein.
Pressed to explain why he sent Fortin to see Cardoza, Hagan testified that it was
the steward's practice to look at their union books as the men came on the job, "so,
2 Lo.,al 357, International Brotherhood of Teamsters, etc v, N L R B , 365 U S 667
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that [they] would be all straightened out and ready to go to work," and to assist in
compliance with the requirement of membership after the probationary period.
Notice was thus given to the steward even though Fortin had not yet been hired,
but in contemplation of such hiring. (It is not Hagan's understanding that under
the existing agreement the steward is required to speak to an employee before
hiring.) In this connection it must be noted that Hagan hired others who were
not members of the Union but did not send them to see Cardoza, in at least one
case, he saw the new employee speaking with Cardoza afterward. While brought
out presumably to show Hagan's reliance on the Union, this latter testimony con-
termng hiring nonmembers supports the Respondents' position that there is no
unlawful or exclusive arrangement or practice.
Similarly and aside from questions of credibility as they bear on the allegations
of violative arrangement or practice, the definite offer of a job beginning October 2,
made to Fortin the week before, effectively contradicts such allegations. More
determinative than Hagan's belief of what he would do in a hypothetical situation
is the fact that he told Fortin to come to work on Monday morning.
Omitting for the present the issue concerning failure to employ Fortin on October 2,
which will next be considered, in connection with the allegation of actual and direct
discrimination against him, this testimony concerning Fortin's visits and conversa-
tions, culminating in Hagan's telling him to report on Monday morning, does not
prove an unlawful arrangement or practice. Several times the evidence appears to
be topsy-turvy, with Fortin's testimony suggesting that the Company did not dis-
criminate against him, while Hagan admitted to an impression of a restrictive if
not violative understanding. Despite Hagan's prior statement of his understanding
of a situation which had not arisen, such testimony is hardly of the type on which I
would rely. In short, a finding of unlawful arrangement or practice should be based
on actual events and reasonable inference drawn from them, not on an admission
of what a company representative would have done on the basis of his understanding
had the occasion arisen. The General Counsel's burden of proof has not here been
met.
As for the job opportunity on October 2, Fortin was anything but convincing
as he testified concerning what occurred when he arrived on that day. I credit
Hagan's testimony that Fortin was not on the site when work began that morning,
that the job was then given to another man, and that they were working about an
hour before he saw Fortin. Whatever the time when Cardoza saw the new operator,
Silva, operating the machine, that man was hired and apparently started to work
before Fortin arrived. That Silva was referred by the Union does not alter these
facts or negate the opportunity offered to Fortin.
Although he admitted that he told Fortin to see Salvucci, as we have seen, Hagan
denied that he said that he would talk with Sulvucci to see what the difficulty was
between him and Fortin, and further denied that he told Fortin on the following
day, when the latter reported that Salvucci said he had no objection and was not
stopping Fortin from working, that Fortin "know[s] better than that": he would
need Salvucci's clearance My credibility finding in connection with these latter
remarks is supported by the apparent inconsistency implied in Fortin's testimony:
quite experienced in these matters, Hagan had without consulting the Union told
Fortin to come to work; now he allegedly told Fortin that he was helpless in the
matter as he defered to Salvucci and then said that he would himself talk to Salvucci!
This analysis supports my observations of demeanor and credibility findings generally.
I find that Fortin was not put to work on October 2 because he arrived late, not
because of union refusal to clear him or discrimination by the Company.
I confess to greater doubt in this case than in the other two, particularly because
of Hagan's prior affidavit. But the quality of Fortin's testimony and his so apparent
uncertainty are more persuasive and encourage the finding that he was offered
a job and was not discriminated against, and that the Union did not interfere
or attempt to cause discrimination.
Whatever suspicion may be aroused by the fact that Fortin has not been employed
as an engineer for a long time, with the implication of union interference and causa-
tion, we have seen that he failed to avail himself of one opportunity for employment.
This is not to say that the offer of a lob at one time itself disposes of the question
whether Fortin was at other times discriminatorily denied employment and whether
the Union interfered or attempted to cause the discrimination as alleged. But the
specific opportunity to work is relevant to the general issues; no other particular
occasion is cited and proved.
HENDRIX MANUFACTURING COMPANY, INC. 397
As for the collective-bargaining agreement ,3 the hiring provisions of the Red
Book Agreement so-called, which are admittedly binding on the Company and
applicable to this job, are claimed by the General Counsel to be unlawful or at least
ambiguous despite the reference to procurement of workmen from other sources.
But an exclusive hiring hall arrangement is violative only if it is limited to some
.and excludes others, or if there is a refusal to refer .4 The provision for notice to the
Union of the need for qualified workmen, with the reference to such workmen
"procured" in that manner may suggest limitation to members since there follows
a reference to nonmembers procured from other sources. But there is no actual
limitation to members, and certainly no exclusive hiring hall where mention is
made of employees "provided from other sources." The agreement, if obscure or
ambiguous, is not violative. None of the alternative allegations of violation has
been sustained.
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. The Company is engaged in commerce within the meaning of the Act.
2. Hoisting and Portable Engineers, Local No. 4, International Union of Op-
erating Engineers, is a labor organization within the meaning of Section 2(5) of
the Act.
3. The Company has not engaged in unfair labor practices within the meaning
of Section 8 (a) (3) or (1) of the Act.
4. The Union has not engaged in unfair labor practices within the meaning of
Section 8(b)(1)(A) or (2) of the Act.
[Recommendations omitted from publication.]
3 Omission of reference to this, in both the recital and argument portions of the General
Counsel's brief, may reflect abandonment of the allegation.
4 Local 357, International Brotherhood of Teamsters, etc. v. N.L.R.B., 365 U.S. 667.
Hendrix Manufacturing Company, Inc. and Lodge 635 , Inter-
national Association of Machinists, AFL-CIO and Interna-
tional Brotherhood of Boilermakers , Iron Shipbuilders, Black-
smiths, Forgers , & Helpers , Charging Party
Hendrix Manufacturing Company , Inc. and Lodge 635 , Inter-
national Association of Machinists , AFL-CIO and Interna-
tional Brotherhood of Boilermakers , Iron Shipbuilders, Black-
smiths, Forgers, & Helpers, Joint Petitioner. Cases Nos.
15-CA-1977 and 15-RC-2400. October 23, 1962
DECISION, ORDER, AND SECOND
DIRECTION OF ELECTION
On March 22, 1962, Trial Examiner Benjamin B. Lipton 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, and recommending further that
the election held on August 10, 1961, in Case No. 15-RC-24001 be set
1 Pursuant to a Stipulation for Certification Upon Consent Election dated July 21, 1961.
139 NLRB No. 10.