Development Consultants

National Labor Relations Board - Board Decisions

Oct 15, 1990

300 N.L.R.B. 479 (N.L.R.B. 1990)

479
300 NLRB No. 44
DEVELOPMENT CONSULTANTS
1 The Union has excepted to some of the judge’s credibility findings. The
Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the evidence con-
vinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544
(1930), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing the findings.
2 In adopting the judge’s finding that Wall was unlawfully denied referrals,
we do not rely on his unsupported finding that when Wall registered for refer-
ral in September 1986 he did not receive a referral for a month.
Development Consultants, Inc. and Gary Wall
Laborers’ Local Union No. 230, Laborers’ Inter-
national Union of North America (Development
Consultants, Inc.) and Gary R. Wall
Laborers’ Local Union No. 230, Laborers’ Inter-
national Union of North America (The Ceco
Corporation) and William Cooksey, Jr.
Laborers’ Local Union No. 230, Laborers’ Inter-
national Union of North America and Joseph
A. DiLoreto and William Cooksey, Sr. and
John Fish. Cases 39–CA–3046, 39–CB–827, 39–
CB–833, 39–CB–840, 39–CB–858, and 39–CB–
860
October 15, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On July 28, 1988, Administrative Law Judge Wal-
lace H. Nations issued the attached decision. The Re-
spondents filed exceptions and supporting briefs, and
the General Counsel filed cross-exceptions. Thereafter,
the General Counsel filed a reply brief and Respondent
Development Consultants, Inc. (DCI) filed a brief in
opposition to the General Counsel’s cross-exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and the briefs and has
decided to affirm the judge’s rulings, findings,1 and
conclusions as modified and to adopt the rec-
ommended Order as modified and set out in full
below.
The judge found that the Union violated Section
8(b)(2) by attempting to cause the termination of
Charging Party Wall by DCI and by causing DCI to
refuse to recall Wall from layoff in retaliation for his
exercise of protected activities. The judge further
found that DCI violated Section 8(a)(3) and (1) by fail-
ing and refusing to recall Wall from layoff pursuant to
the unlawful request of the Union. Although we adopt
the judge’s findings concerning these violations, we re-
verse his finding that Wall’s February 7, 1986 layoff
resulted from unlawful actions on the part of the Union
and DCI. Rather, we find that the evidence establishes
that the entire crew of laborers, including Wall, was
laid off for a legitimate business reason, the lack of
work. We shall amend the Order to reflect our finding.
The judge also found that the Union violated Sec-
tion 8(b)(2) and (1)(A) by operating an exclusive hir-
ing hall without objective criteria or standards for re-
ferral and by discriminatorily refusing to refer Charg-
ing Parties Wall, DiLoreto, Cooksey Sr., and Cooksey
Jr. Although we agree with the judge that the Union
violated the Act by discriminatorily refusing to refer
Wall,2 DiLoreto, Cooksey Sr., and Cooksey Jr., we
find that the evidence does not support the judge’s
conclusions that the Union operated an exclusive hir-
ing hall.
In finding that the Union operated an exclusive hir-
ing hall, the judge interpreted the language set forth in
the Union’s collective-bargaining agreements with var-
ious contractors. That language states:
The local union having jurisdiction shall be recog-
nized as the principal source of laborers and shall
be given the first opportunity to refer qualified ap-
plicants for employment. The Employer shall be
the sole judge to whether or not the men fur-
nished are qualified. The Employer reserves the
right to transfer or rehire laborers, provided that
for those laborers rehired, the Employer shall no-
tify the Union of the rehiring within forty-eight
(48) hours of the date of rehiring.
Rejecting the argument that this language was ambig-
uous concerning whether the Union operated an exclu-
sive hiring hall, the judge determined that the language
mandated that the contractors look first to the Union’s
hiring hall when seeking to hire laborers on a job. The
judge further found that the parties’ practices did not
compel a different conclusion. Although acknowl-
edging that contractors that were parties to the agree-
ment with the Union had hired laborers without seek-
ing referrals from the Union’s hiring hall, the judge
determined that such instances established only a lim-
ited practice and did not detract from the conclusion
that the Union could enforce its contractual right to op-
erate an exclusive hiring hall.
Contrary to the judge, we do not find that the above
language necessarily establishes that the Union oper-
ates an exclusive hiring hall. Rather, we find that the
language is also subject to the interpretation that the
Union urges—that is, that the provision requires only
that the local union having territorial jurisdiction of the
jobsite has the first opportunity to refer applicants
when the contractor decides to use the hiring hall. As
we find that the contractual language does not require
contractors to use the hiring hall exclusively, we next
consider whether the parties’ practices nonetheless es-
tablished an exclusive referral system. In light of the
testimony of several contractors that they have hired
480 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
laborers without using the hiring hall and without ob-
jection from the Union, we do not find that an exclu-
sive referral system existed by practice. Consequently,
we find that the General Counsel has not met his bur-
den of establishing by a preponderance of the evidence
that the Union operated an exclusive hiring hall sys-
tem. In light of our finding that the hiring hall was not
exclusive, we find that the Union’s discriminatory re-
fusals to refer members Wall, DiLoreto, Cooksey Sr.,
and Cooksey Jr. violated Section 8(b)(1)(A), but not
Section 8(b)(2). See Laborers Local 135 (Bechtel
Corp.), 271 NLRB 777, 780 (1984); Plasterers Local
121 (ABC of Lafayette), 264 NLRB 192, 195 (1982).
Moreover, absent an exclusive hiring hall arrangement,
we find no 8(b)(1)(A) violation for the Union’s failure
to operate its hiring hall in accordance with objective
criteria. See Teamsters Local 460 (Superior Asphalt),
300 NLRB 441 (1990).
AMENDED REMEDY
Having found that Respondent Union and Respond-
ent Development Consultants, Inc. have engaged in
certain unfair labor practices, we shall order them to
cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
We have found that Respondent Union has violated
Section 8(b)(2) by attempting to cause DCI to termi-
nate Wall and by causing DCI to refuse to recall Wall
from layoff, and we have found that Respondent DCI
has violated Section 8(a)(3) and (1) by failing and re-
fusing to recall Wall from layoff at its Northeast Plaza
jobsite pursuant to the unlawful request of the Union.
In order to remedy this unlawful conduct, we shall
order DCI to offer Wall reinstatement and, jointly and
separately with the Union, make him whole for any
loss of earnings and other benefits he may have suf-
fered as a result of the discrimination against him from
the date of the Respondents’ unlawful conduct until
the date he obtains the employment he would have had
were it not for the Respondents’ unlawful conduct,
substantially equivalent employment with Respondent
DCI, or substantially equivalent employment else-
where, less net interim earnings.
We have further found that the Union violated Sec-
tion 8(b)(1)(A) by unlawfully denying referrals to
Wall, William Cooksey Sr., William Cooksey Jr., and
Joseph DiLoreto. In order to remedy this unlawful con-
duct, we shall order the Union to make them whole for
any loss of earnings and other benefits they may have
suffered as a result of the discrimination against them
from the date of the discrimination against them until
the date that the Union has properly referred them for
employment, less net interim earnings. All backpay
due under the terms of this Order shall be computed
in the manner described in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest to be computed in the
manner prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987). We shall further order the
Union to maintain and operate its referral system in a
nondiscriminatory manner and to keep and retain ade-
quate records of its referral operations for a limited pe-
riod to disclose fully the bases on which referrals are
made.
ORDER
A. The National Labor Relations Board orders that
the Respondent, Laborers’ Local Union No. 230, La-
borers’ International Union of North America, Hart-
ford, Connecticut, its officers, agents, and representa-
tives, shall
1. Cease and desist from
(a) Causing or attempting to cause discrimination
against Gary R. Wall by requesting the Respondent
Development Consultants, Inc., or any other employer,
to terminate his employment, and by requesting and
causing the Respondent Development Consultants, Inc.,
or any other employer, not to recall him from layoff,
or by refusing to refer him for work under its job-re-
ferral procedure, or by otherwise causing discrimina-
tion against him in retaliation for his activities pro-
tected by Section 7 of the Act.
(b) Causing or attempting to cause discrimination
against William Cooksey Sr., William Cooksey Jr., and
Joseph DiLoreto by refusing to refer them for work
under its job-referral procedure, or by otherwise caus-
ing discrimination against them in retaliation for their
activities protected by Section 7 of the Act.
(c) Maintaining a hiring hall whereby referrals are
made in a discriminatory manner.
(d) In any like or related manner restraining or co-
ercing its members or applicants for referrals in the ex-
ercise of rights guaranteed them by Section 7 of the
Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Maintain and operate its job referral system in a
nondiscriminatory manner.
(b) Notify Development Consultants, Inc. in writing,
with copies to Gary R. Wall, that it has no objection
to the hiring or employment of Wall and request De-
velopment Consultants, Inc. to hire Wall for the em-
ployment he would have had were it not for the Re-
spondent’s unlawful conduct or for substantially equiv-
alent employment.
(c) Make whole Gary R. Wall, William Cooksey Sr.,
William Cooksey Jr., and Joseph DiLoreto for any loss
of earnings they may have suffered as a result of the
discrimination against them in the manner set forth in
the amended remedy section of this Decision and
Order.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
481DEVELOPMENT CONSULTANTS
3 If this Order is enforced by a judgment of a United States court of appeals,
the words in the notice reading ‘‘Posted by Order of the National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
4 See fn. 3, above.
hiring hall records, dispatch lists, referral cards, and
other documents necessary to analyze the amount of
backpay due under the terms of this Order.
(e) Keep and retain for 2 years from the date of the
attached notice adequate records of its referral oper-
ations that will disclose fully the bases on which refer-
rals are made and make those records available to the
Regional Director for Region 34 on request.
(f) Post at all places where notices to members or
applicants for referral are posted copies of the attached
notice marked ‘‘Appendix A.’’3 Copies of the notice,
on forms provided by the Regional Director for Region
34, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent im-
mediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to members or applicants for referral are
customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(g) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
B. The National Labor Relations Board orders that
the Respondent, Development Consultants, Inc., Hart-
ford, Connecticut, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Failing and refusing to recall Gary R. Wall from
layoff or to hire him for employment at its Northeast
Plaza jobsite or by otherwise discriminating against
him pursuant to the request of Respondent Laborers’
Local Union No. 230, Laborers’ International Union of
North America.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Gary R. Wall immediate and full reinstate-
ment to his former job or, if that job no longer exists,
to a substantially equivalent position, without prejudice
to his seniority or any other rights or privileges pre-
viously enjoyed, and make him whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against him, in the manner set forth in
the amended remedy section of this Decision and
Order.
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(c) Post at its Hartford, Connecticut office and all its
jobsites within the territorial jurisdiction of Laborers’
Local Union No. 230 copies of the attached notice
marked ‘‘Appendix B.’’4 Copies of the notice, on
forms provided by the Regional Director for Region
34, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent im-
mediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(d) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX A
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT maintain our hiring hall, pursuant to
policies or practices whereby referrals are made in a
discriminatory manner.
WE WILL NOT cause or attempt to cause employers
to discriminate against Gary Wall in retaliation for his
activities protected by Section 7 of the National Labor
Relations Act.
WE WILL NOT refuse to refer for employment or oth-
erwise discriminate against Gary R. Wall, William
Cooksey Sr., William Cooksey Jr., and Joseph
DiLoreto in retaliation for their activities protected by
Section 7 of the National Labor Relations Act.
WE WILL NOT in any like or related manner restrain
or coerce job applicants in the exercise of their rights
guaranteed by Section 7 of the Act.
WE WILL notify Development Consultants, Inc. that
we have no objection to its hiring of Gary R. Wall and
WE WILL request it to hire Wall for the jobs he would
have had were it not for our unlawful conduct or for
substantially equivalent employment.
WE WILL make whole Gary R. Wall, William
Cooksey Sr., William Cooksey Jr., and Joseph
DiLoreto for any loss of earnings and other benefits
they may have suffered by reason of discrimination we
caused against them, with interest.
482 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL revise our policies and practices to ensure
that our job referral system functions on a nondiscrim-
inatory basis.
WE WILL keep and retain for 2 years adequate
records of our referral operations that will disclose
fully the bases on which referrals are made and make
these records available to the Regional Director for Re-
gion 34 on request.
LABORERS’ LOCAL UNION NO. 230, LA-
BORERS’ INTERNATIONAL UNION OF
NORTH AMERICA
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to recall from layoff or rehire
our employees at the request of Laborers’ Local Union
No. 230, Laborers’ International Union of North Amer-
ica or any other labor organization for reasons pro-
scribed by the National Labor Relations Act.
WE WILL NOT in any like or related manner inter-
fere, restrain, or coerce our employees in the exercise
of their rights guaranteed by Section 7 of the Act.
WE WILL offer Gary R. Wall immediate and full re-
instatement to his former job or, if that at job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or
privileges previously enjoyed and
WE WILL make him whole for any loss of earnings
and other benefits he may have suffered by reasons of
discrimination against him, with interest.
DEVELOPMENT CONSULTANTS, INC.
Mark W. Engstrom and Michael Marcionese, Esqs., for the
General Counsel.
David Kamins, Esq., of Hartford, Connecticut, for Respond-
ent Development Consultants, Inc.
Robert A. Cheverie, Esq., of Hartford, Connecticut, and Mi-
chael S. Bearse, Esq., of Boston, Massachusetts, on behalf
of Laborers’ Local Union 230, Laborers’ International
Union of North America.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge. Based
on charges filed by Gary R. Wall in Case 39–CB–827, Wil-
liam Cooksey Jr. in Case 39–CB–833, Joseph A. DiLoreto
in Case 39–CB–840, William Cooksey Sr. in Case 39–CB–
858, and John Fisk, in Case 39–CB–860, the officer in
charge for Subregion 39 issued a complaint alleging that Re-
spondent Laborers’ Local Union No. 230, Laborers’ Inter-
national Union of North America (the Union) has been en-
gaging in unfair labor practices in violation of Section
8(b)(1)(A) and (2) of the Act. Based on the charge by Gary
R. Wall in Case 39–CA–3046, a complaint issued against
Development Consultants, Inc. (DCI) alleging that it violated
Section 8(a)(1) and (3) of the Act. All of these complaints
were consolidated for hearing. Hearing was held in Hartford,
Connecticut, on February 24, 25, 26, and 27 and March 2
and 3, 1987. Briefs were received from all parties.
On the entire record, including the testimony of the wit-
nesses and my observation of their demeanor, I make the fol-
lowing
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS
(a) Respondent DCI is a Connecticut corporation with an
office and place of business in Hartford, Connecticut, and a
jobsite in Hartford, Connecticut (the Northeast Plaza jobsite).
DCI is engaged as a general contractor in the building and
construction industry, constructing commercial and office fa-
cilities. Respondent DCI has admitted the jurisdictional alle-
gations of the consolidated complaint, and I find that it is
now, and has been at all times material to these proceedings,
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
(b) The Ceco Corporation (Ceco), a Delaware corporation
with an office and place of business in Hartford, Connecticut,
and jobsites located in Hartford, Connecticut (the Xerox Cen-
tral project and the Underwood Towers project) has been en-
gaged in the business of providing general building construc-
tion or form work and related services to commerical busi-
nesses. Respondent Ceco has admitted the jurisdictional alle-
gations of the consolidated complaint, and I find that Ceco
is now, and has been at all times material, an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
(c) The Labor Relations Division of the Associated Gen-
eral Contractors of Connecticut, Inc. (the AGC) is an organi-
zation composed of employers engaged in the construction
industry and exists for the purpose, inter alia, of representing
its employer-members in negotiating and administering col-
lective-bargaining agreements with various labor organiza-
tions including Respondent Union. The AGC has admitted
the jurisdictional allegations of the consolidated complaint
and I find that the AGC and each of its members are now,
and have been at all times material, engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
(d) The Connecticut Construction Industry Association,
Inc. (CCIA) is an organization composed of employers en-
gaged in the construction industry and exist for the purpose,
inter alia, of representing its employer-members in negoti-
ating and administering collective-bargaining agreements
with various labor organizations including Respondent
Union. The CCIA has admitted the jurisdictional allegations
of the complaint, and I find that the CCIA and each of its
members are now, and have been at all times material, en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
483DEVELOPMENT CONSULTANTS
II. THE LABOR ORGANIZATION INVOLVED
Laborers’ Local Union No. 230, Laborers’ International
Union North of America is now, and has been at all times
material, a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Summary of Allegations and Issues Presented
The Charging Parties in this case have been for some
years members of the Union, which is located in Hartford,
Connecticut. Local 230, through its statewide parent body the
Connecticut Laborers’ District Council, is party to two col-
lective-bargaining agreements covering the entire State of
Connecticut. The agreement with the Labor Relations Divi-
sion of the AGC pertains essentially to building and site con-
struction whereas the contract with the CCIA covers pri-
marily heavy and highway construction. The Respondent
DCI is a member of the AGC and is a party to the AGC
agreement. In addition, a large number of other construction
employers sign independent or so-called me-too acceptances
which bind them to the full terms of the AGC or CCIA con-
tract according to the type of work performed.
Insofar as the individual alleged discriminatees are con-
cerned, the General Counsel has alleged an unlawful scheme
or conspiracy between DCI, through its executive vice presi-
dent, Joseph Anderson, and Local 230, through its business
manager and secretary/treasurer, Domienick Lopreato, to not
recall Gary Wall after a concededly lawful layoff from em-
ployment which occurred on or about February 6, 1986, at
DCI’s Northeast Plaza site in Hartford. The unlawful motive
alleged by the General Counsel was to retaliate against Wall
for his dissident and internal union activities, for running for
office against Lopreato in the union election held in June
1986, and for his criticisms of Lopreato’s administration.
In addition, the General Counsel has charged that the Re-
spondent Local 230 thereafter refused to refer Wall and the
other individual Charging Parties to jobs through its hiring
hall on a nondiscriminatory basis because of their dissident
activities in running for union office on Wall’s slate or sup-
porting Wall’s opposition candidacy.
Finally, the General Counsel has charged that regardless of
the individual acts of alleged discrimination asserted in the
amended consolidated complaint, the Charging Parties were
victims of the Union’s hiring hall practices alleged to be un-
lawful because the referral system functioned as an exclusive
source of laborers within the territorial jurisdiction of Local
230 and lacked objective standards and criteria for referral.
It is the position of Respondent Local 230 that the General
Counsel failed to make a prima facie case of discrimination
against Wall and the other Charging Parties in violation of
Section 8(a)(1) and (3) of the Act or of Section 8(b)(1)(A)
or (2) of the Act as alleged. Respondent Union further as-
serts that even assuming that the General Counsel has intro-
duced probative evidence to present a triable issue on these
claims, the Respondent produced more than ample evidence
to demonstrate that Wall, regardless of his protected activi-
ties, would not have been recalled from layoff by the DCI
due to his known reputation as a nonworker. Respondent
DCI joins in this defense.
Insofar as the other Charging Parties aside from Wall are
concerned, the Union asserts that there is no substantial cred-
ible evidence to demonstrate a plot or scheme by Lopreato
to deprive them of work opportunities through the hiring
hall.
Finally, the Union urges that the General Counsel’s case
concerning the alleged exclusivity and unlawfulness of the
hiring hall operation failed.
At the conclusion of the General Counsel’s case, the
charge in Case 39–CB–860 involving John Fisk, an indi-
vidual, was withdrawn.
Based on the amended consolidated complaint, answers of
Respondents, and evidence presented at the hearing, the fol-
lowing issues are presented for determination:
1. Whether Respondent DCI violated Section 8(a)(1) and
(3) of the Act by failing and refusing to rehire Gary Wall
for employment at its Northeast Plaza jobsite.
2. Whether the Respondent Union violated Section 8(b)(2)
of the Act by attempting to cause the termination of Wall by
Respondent DCI from its Northeast Plaza jobsite and by
causing Respondent DCI to refuse to rehire Wall for employ-
ment at the Northeast Plaza jobsite.
3. Whether the Respondent Union violated Section
8(b)(1)(A) and (2) of the Act by operating an exclusive hir-
ing hall without objective criteria or standards for referral
and by failing and refusing to refer Wall, William Cooksey
Jr., Joseph A. DiLoreto, and William Cooksey Sr. to employ-
ment with employer-members of the Labor Relations Divi-
sion of the Associated General Contractors of Connecticut,
Inc. and employer-members of the Connecticut Construction
Industry Association, Inc.
B. Statement of the Facts
The Respondent Union is 1 of approximately 15 locals in
the State of Connecticut which are affiliated with the Con-
necticut Laborers’ District Council and the Laborers’ Inter-
national Union of North America. The Respondent Union’s
territorial jurisdiction extends through the north central and
the northeastern portions of Connecticut, and at the time of
hearing the Respondent Union had approximately 1250 ac-
tive members. Membership levels have increased in recent
years as a result of a construction boom occurring within the
Respondent Union’s territorial jurisdiction which has led to
the creation of many new jobs.
For the past 17 years, the Respondent Union has been led
by Business Manager and Secretary/Treasurer Lopreato.
Lopreato is the principal officer of the Local and reports
‘‘only to the membership.’’
Lopreato was most recently elected to office in June 1986,
in what was the first contested election to be held by the Re-
spondent Union during Lopreato’s tenure of office. As has
been his practice, Lopreato ran on a slate with a number of
other candidates for various Local positions, including Vice
President and Field Representative John Pezzenti, and Presi-
dent and Field Representative Charles LaConche. Although
Lopreato testified that it did not matter to him who ran on
his slate, he acknowledged there were times when he did
make recommendations with respect to the composition of
the Respondent Union’s executive board and that none of his
recommendations had ever been rejected.
The 1986 challenge to Lopreato’s slate was mounted by a
group known as ‘‘The Committee to Reform Local 230.’’
484 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
This slate was led by Gary Wall, who was running against
Lopreato for the position of business manager and secre-
tary/treasuer, and William Cooksey Sr., who ran against
Pezzenti for the position of vice president. Joseph DiLoreto,
another one of the Charging Parties herein, was also affili-
ated with Wall’s slate as a candidate for auditor. Other can-
didates affiliated with the ‘‘reform’’ slate were Frank
Cecchini, Angelo Zangari Jr., and Quintino Cianfaglione.
The 1986 election was held in June and the ‘‘reform’’ slate
lost to Lopreato’s incumbent slate by a considerable margin.
In addition to his duties as an officer of the Respondent
Union, Lopreato also serves as business manager and
secretary/treasurer of the Connecticut Laborers’ District
Council. According to Lopreato, a loss to Wall in the Local
elections would not have affected his status as an officer of
that organization, although holding Local office was a pre-
requisite to the initial assumption of District Council duties.
The Respondent Union is party to two collective-bar-
gaining agreements with employer associations which apply
to many of the Locals affiliated with the Connecticut Labor-
ers’ District Council. One agreement is with the AGC, and
the second agreement is with the CCIA. The AGC agreement
applies to building contractors and the agreement in effect at
the time of the hearing was effective by its terms from June
1, 1984, through June 30, 1987. The CCIA, by contrast, ap-
plies to utility and heavy highway contractors and the agree-
ment in effect at the time of the hearing had a term extend-
ing from April 1, 1984, through May 1, 1987. Lopreato was
involved in the negotiation of both these agreements.
Respondent DCI, one of the employer-members of the
AGC, functions as a construction manager with respect to the
construction of commercial and office facilities. In 1983 Re-
spondent DCI became involved with the Northeast Plaza
project in Hartford, Connecticut. The Northeast Plaza is a
project consisting of over one million square feet, spread
over two 14 to 16 story towers and an underground parking
garage designed to accommodate approximately 450 cars.
During the course of the project Respondent DCI has em-
ployed many of the Respondent Union’s members under the
terms of the 1984 AGC agreement.
Wall was among the laborers who worked for Respondent
DCI at the Northeast Plaza project. Wall reported to the job-
site in December 1983, after being appointed as the Re-
spondent Union’s site steward by Lopreato. According to
Wall, his appointment to the steward’s position resulted from
a settlement between himself and the Respondent Union with
respect to an NLRB charge which Wall had filed against the
Respondent Union in 1983. Wall claimed that his appoint-
ment as steward resulted from his agreement to withdraw the
NLRB charge. Wall’s charge in Case 39–CB–368 was filed
in February 1983 and resulted in a complaint against the Re-
spondent Union alleging, inter alia, that the Respondent
Union unlawfully caused Wall’s termination from employ-
ment with an employer and subsequently refused to refer
Wall through its hiring hall.
The officer in charge of Subregion 39 approved Wall’s
withdrawal of that charge on May 17, 1983, after Lopreato
had taken the unusual step of signing Wall’s withdrawal re-
quest form as a witness on the date that Wall executed the
form. Although Lopreato denied that Wall’s appointment as
steward had anything to do with the settlement of any unfair
labor practice charges against the Union, he had no expla-
nation for why he signed Wall’s withdrawal request form as
a witness. Moreover, without having admitted to having
committed an unfair labor practice, Lopreato admitted that he
was, in fact, responsible for Wall’s layoff from the Sesco
Construction Company as alleged in the complaint. Lopreato
attributed his acts in this regard to Wall’s alleged assault of
Union Local Official Leonard Granell. Wall denied having
assaulted Granell, although he admitted having a fight with
him. Having made these allegations against Wall, Lopreato
testified that Wall was appointed steward at the Northeast
Plaza as a result of a request from International Secre-
tary/Treasurer Arthur Coia.
Insofar as the credibility determination necessary with re-
spect to why Wall was appointed steward at the Northeast
Plaza jobsite, I credit Wall’s version of the story. It is incon-
ceivable to me that Lopreato would on the one hand have
Wall removed from a job for allegedly assaulting Granell,
and then willingly appoint him steward on a major construc-
tion project. At this juncture it is also probably well to note
that I find that Lopreato and Wall’s intense animosity toward
one another predates substantially Wall’s appointment on the
Northeast Plaza jobsite and definitely predates Wall’s abor-
tive attempt to run for Lopreato’s office.
Wall’s relationship with Lopreato deteriorated to new lows
in the fall of 1985, when a series of events on the Northeast
Plaza jobsite culminated in Lopreato’s removal of Wall as
steward in November 1985. Wall claims that about 1 week
prior to his removal as steward, he had a dispute on the job-
site with Pezzenti concerning money the Respondent Union
wanted Wall to collect for the Governor’s reelection cam-
paign. According to Wall, Pezzenti said that Lopreato wanted
Wall to collect $3 per week from each laborer on the jobsite
for a period of 8 weeks. The collection was not to be limited
to Respondent DCI’s employees, but was to extend to labor-
ers working for every subcontractor on the jobsite. Wall tes-
tified that he declined to make the collections, and Pezzenti
left. Wall testified that the following day Pezzenti returned
to the jobsite and told Wall that Lopreato was mad and
Lopreato wanted Wall to collect the money. Wall quoted
Pezzenti as saying, ‘‘you got to collect this money . . .
you’re going to get yourself in trouble with Lopreato for not
collecting this money.’’ According to Wall, Pezzenti also
said that Lopreato wanted Wall to make a Christmas collec-
tion for the Union of $20 per laborer. Wall claims to have
told Pezzenti, ‘‘tell Lopreato I don’t shake down laborers.
I’m not collecting no money from nobody.’’ According to
Wall, Pezzenti then repeated that Wall was going to get him-
self in trouble with Lopreato and left the jobsite.
Although Pezzenti acknowledged that the Respondent
Union attempted to collect money for the Governor on a cou-
ple of jobsites, he denied ever requesting Wall to solicit such
contributions or that he ever told Wall he would be in trou-
ble with Lopreato for refusing to solicit such contributions.
Lopreato acknowledged that he instructed Pezzenti to solicit
money on behalf of the Governor on jobsites. According to
Lopreato, the Respondent Union had purchased a number of
benefit tickets at a cost of $15 per ticket. Rather than ask
individual laborers to buy a $15 ticket, Lopreato directed
Pezzenti to solicit the contributions over a 2- or 3-week pe-
riod of $1 per week which would then go into a pool to help
pay for the Respondent Local’s tickets.
485DEVELOPMENT CONSULTANTS
Although Wall’s testimony with respect to the collection
he was to make from the men on the jobsite was exagger-
ated, it appears to me from all the testimony that he was re-
quested to make such collections. In this regard, Thadius
Grabonski Jr., Wall’s successor as steward on the Northeast
Plaza jobsite, stated that every year it was customary for the
steward to solicit a Christmas collection for the union hall
from the employees on the jobsite. Grabonski said he did not
solicit a Christmas collection in 1986 because of all of the
trouble the 1985 collection caused. Grabonski stated the 1985
collection caused quite a commotion on the jobsite and he
confirmed that Wall was at the heart of that commotion.
Moreover, Grabonski observed it was common knowledge on
the jobsite that Wall had a dispute with the union leadership
in the fall of 1985. Grabonski was one of the most credible
witnesses in this proceeding, and I credit his testimony
whenever it conflicts with that of another witness.
In this regard, Wall testified that following his dispute
with Pezzenti over the jobsite collection he began to publicly
advocate the removal from office of Lopreato, Pezzenti, and
other incumbent officials and that it became evident on the
jobsite that Wall would challenge Lopreato for control of the
Union, even though Wall did not officially declare his can-
didacy until the spring of 1986.
It was after the dispute concerning the Union’s collection
practices that Lopreato relieved Wall of his position as stew-
ard. Lopreato officially notified DCI of Wall’s removal by
letter dated November 11, 1985. Lopreato’s asserted reasons
for relieving Wall from his duties as steward was Wall’s re-
ferral of two laid-off laborers for employment with Respond-
ent DCI. Lopreato explained that stewards do not have the
right to bypass the Union’s hiring hall system and directly
refer employees to employment opportunities on their own
initiative.
Wall admitted referring two laborers to employment with
Respondent DCI as complained of by Lopreato. Wall con-
tended that there was nothing unusual in this practice, inas-
much as the laborers in question had recently been laid off
from another contractor on the Northeast Plaza jobsite and he
was simply keeping laborers on the jobsite by moving them
from one contractor to another. According to Wall, he rou-
tinely advised either Lopreato or Pezzenti of such referrals
and there was never a problem with them until November
1985. Consistent with this past practice, Wall claimed to
have advised Pezzenti of the referrals which led to his re-
moval as steward, and said that Pezzenti raised no objection.
Pezzenti, however, denies that Wall ever advised him of
these referrals.
Lopreato also testified that Wall provided no advance no-
tice of his intent to refer laborers for employment at Re-
spondent DCI’s Northeast Plaza jobsite, and claimed not to
have been aware of Wall’s referrals until he arrived at the
jobsite one morning in early November to investigate a re-
port that Respondent DCI had hired two new laborers with-
out consulting with the Union. According to Wall, Lopreato
and Pezzenti arrived at the jobsite on the morning the em-
ployees he referred reported for work with Respondent DCI.
Wall claims that Lopreato stepped out of his car and began
directing profane language at Wall, accusing Wall of wanting
Lopreato’s job and ultimately firing Wall. Wall said that
Lopreato then announced that he was going to fire the two
laborers that Wall had referred to the jobsite and again said
that Wall was fired as steward. Lopreato and Pezzenti then
got back in the car and drove around to the other side of the
jobsite.
Lopreato and Pezzenti denied that Lopreato directed any
profanity toward Wall and claimed that Lopreato remained
calm throughout the exchange. They also testified that Wall
made physically intimidating gestures toward them. Third
party witnesses called by the General Counsel confirmed that
there was a heated exchange between Wall and Lopreato in
which Lopreato was anything but calm and passive. James
DiPietro, a laborer working on the Northeast Plaza jobsite,
observed the exchange from a fifth floor vantage point. Al-
though DiPietro was unable to hear exactly what was said,
he was able to see Wall, Lopreato, and Pezzenti waving their
hands in the air at each other and to hear quite a bit of a
shouting and yelling emanating from the scene. Laborer Jo-
seph D’Amico was in the immediate vicinity of the argument
and testified that he heard Lopreato yelling at Wall and that
at one point Lopreato told Wall, ‘‘you want my job, you can
have it, you’re fired.’’ Robert Granell, a labor foreman who
was called as a witness by Respondent DCI, confirmed that
there was an argument between Wall and Lopreato on the
jobsite at the time Wall was removed as steward.
Following the initial exchange between Lopreato and Wall
on the jobsite, Lopreato and Pezzenti drove to Respondent
DCI’s office trailer at the other side of the site. Wall walked
across the construction site and arrived at the office trailer
sometime after Lopreato and Pezzenti had arrived. Wall testi-
fied that when he arrived at the trailer he received a message
to call Arthur Coia, the secretary/treasurer of the Laborers’
International Union of North America. Despite his position
with the International, Coia has significant local ties and was
a one-time friend of Wall who was even called on to partici-
pate in the baptism of Wall’s daughter. Wall testified he re-
turned Coia’s phone call and that Coia asked him, ‘‘who
made you the boss?’’ and began swearing at Wall over the
telephone. Finally, according to Wall, Coia told him that he
was fired and that he would never work again. According to
Wall, Coia told him, ‘‘you’ll never work again the rest of
your life.’’ The conversation then ended and Wall left the
trailer, where he saw Lopreato running around and screaming
at the labor foreman and others present that the two individ-
uals Wall had referred for employment had to be fired right
away. Lopreato then directed his wrath at Wall, and told
him, ‘‘you’ll never work again. . . . That’s it. You’re fin-
ished in this local. You’ll never work again.’’
According to Lopreato, he left the jobsite following his
initial meeting with Wall in the morning and returned again
in the afternoon to make sure that the two laborers whom
Wall had referred to Respondent DCI had been removed
from the job. Lopreato claims that he was greeted with a
threat from Wall when he arrived, when Wall said, ‘‘I’m
going to get you.’’ Lopreato said he the left the jobsite with-
out response and dictated a letter to Respondent DCI. Wall
denied threatening Lopreato in this or any other manner.
Pezzenti offered another account of what happened fol-
lowing the initial exchange between Wall and Lopreato. Ac-
cording to Pezzenti, following the initial exchange, Lopreato
and he returned to the Respondent Union’s office.
Aproximately 90 minutes later, they returned to the jobsite
and Pezzenti approached Wall while Lopreato remained in
the car. Pezzenti told Wall that the two laborers who Wall
486 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
had referred for employment were leaving the jobsite, and
then returned to the car and drove back to the office with
Lopreato.
The cause of Wall’s termination as steward on the jobsite
is a good place to point out the difficulty in this proceeding
with making credibility determinations. None of the prin-
cipals in this proceeding offered testimony that in its entirey
appears to me to be wholly credible. Therefore, to the extent
possible when making important credibility determinations, I
have attempted to look at all objective evidence surrounding
the incident rather than relying solely on the testimony of the
people involved in the incident. In this particular case, I be-
lieve that Wall’s refusal to make collections was the reason
behind his removal as steward. Lopreato could not fire Wall
for this reason without violating the law. Yet, as Grabonski
testified, the refusal to make collections caused quite a com-
motion on the jobsite and put Wall at odds with the union
leadership. For reasons that will be discussed shortly, I find
that Lopreato seized on the matter of Wall’s hiring of the
two workers as a legitimate reason for firing Wall and re-
moving his challenge to his direction, i.e., making collec-
tions.
The Union’s asserted reason for removal of Wall as a
steward does not strike me as being logical. Lopreato and
other Respondent Union witnesses assert that Lopreato fired
Wall as steward because he referred two men to employment
on the Northeast Plaza jobsite without sending them through
the hiring hall process or at least contacting the hiring hall
about their employment. There is evidence that Wall had pre-
viously engaged in this practice with employees such as
DiPietro and others and Wall also testified that he notified
the Union of the referrals which led to his removal as stew-
ard. Additionally, I cannot find how the Union’s action with
respect to Wall and the two employees in question squares
with the position of the Union that it runs a nonexclusive hir-
ing hall in which employers frequently hire laborers directly
off the street with the Union’s blessings. Respondent Union
offered evidence through several witnesses that it was routine
practice for employers to hire certain persons, some of whom
were not even members of the local union at the time of hir-
ing. It appears to me that Lopreato just simply ceased upon
the transfers of the two workers as an excuse to remove Wall
as a steward and that the real reason for his removal was the
general animosity between the two men, apparently retrig-
gered by Wall’s refusal to aid in collection of money from
the men on the jobsite.
Lopreato wrote a letter advising Respondent DCI that Wall
had been relieved of his steward duties. He specifically stat-
ed that Wall could remain as a laborer. However, the evi-
dence reveals that Wall continued to publicly denounce
Lopreato for certain practices such as collection of moneys
from the workers which culminated in an open argument be-
tween Lopreato and Wall at a January 1986 union meeting.
Following his layoff and in accordance with Lopreato’s
letter, Labor Foreman Robert Granell, who owed his job to
Lopreato, hired Wall to maintain heaters on the DCI jobsite.
Wall candidly admitted that this was one of the better job
assignments a laborer could receive, and by all accounts he
performed his job adequately and no complaints were di-
rected toward his job performance.
On February 7, 1986, Respondent DCI laid off the labor-
ers’ crew assigned to tower 2 at the Northeast Plaza jobsite,
including Wall. Altogether, nine laborers on Wall’s crew
were laid off, and all but Wall were recalled within 2 weeks
of the layoff date. Wall has not been recalled to date.
The General Counsel contends that the DCI’s failure to re-
call Wall was the result of pressure being exerted against
DCI by the Union and especially Lopreato. The Union de-
nied that any pressure was exerted in this regard and Re-
spondent DCI asserts that Wall was not recalled because he
was not a good laborer.
In support of his position, the General Counsel offered the
testimony of James DiPietro, a former police officer, who
subsequently became affiliated with Respondent Union as a
result of connections between his family and Lopreato.
DiPietro testified that he had a conversation with Labor Fore-
man Donald ‘‘Skip’’ DiMeo of Respondent DCI on the job-
site soon after Wall had been removed as steward. According
to DiPietro, DiMeo told him that he and the other labor fore-
man on the job, Robert Granell, both of whom are admitted
supervisors within the meaning of the Act, were receiving
quite a bit of pressure from Dick Olsen, Respondent DCI’s
general superintendent on the Northeast Plaza project, to
‘‘get rid of Gary Wall.’’ DiMeo also told DiPietro that this
pressure was coming from Lopreato. This conversation was
followed by a second conversation between DiMeo and
DiPietro on the jobsite during which DiMeo advised DiPietro
that DiPietro should should not get involved in the matter
between Wall and Lopreato if he wanted to stay on the job.
Finally, in early February 1986, DiPietro had another con-
versation with DiMeo on the jobsite during which DiMeo
told DiPietro that Joe Anderson, Respondent DCI’s project
manager for the Northeast Plaza project, had just returned
from lunch with Lopreato where an agreement had been
reached that all personnel working on the tower Wall was as-
signed to would be laid off and that everyone with the ex-
ception of Wall would ultimately be recalled from this lay-
off.
DiMeo, although admitting that DiPietro was one of the
best laborers Respondent had on the jobsite, denied making
the statements attributed to him by DiPietro, with the excep-
tion of the admonition to DiPietro to stay out of the dispute
between Wall and Lopreato.
Another witness, James S. D’Amico, testified about a se-
ries of conversations he had with Foreman Granell following
Wall’s removal as steward. The first conversation occurred
on the jobsite in November 1985, several days after Wall had
been relieved from his steward duties. D’Amico testified that
Granell told him there was a lot of heat on the job because
Lopreato was calling Joe Anderson every day in an effort to
get Wall removed from the jobsite, and that Teddy
Grabonski, Wall’s successor as steward on the job, was tak-
ing down the names of anyone seen talking to Wall. Fol-
lowing Wall’s layoff in February 1986, D’Amico again
spoke to Granell on the jobsite and Granell said that Wall
had attempted to get his job back but there was no way that
this would happen because the decision was subject to
Lopreato’s approval. According to D’Amico, Granell warned
him, ‘‘you can’t fight these people.’’
Granell either denied or could not recall making the state-
ments attributed to him by D’Amico. Granell denied ever
telling Wall that Lopreato was putting pressure on the job or
on Joe Anderson. When asked whether he recalled telling
D’Amico that he was getting heat on the job about Wall,
487DEVELOPMENT CONSULTANTS
Granell answered, ‘‘I don’t remember.’’ When asked whether
or not he told D’Amico that Lopreato was calling Joe Ander-
son every day to get Wall off the job, he answered, ‘‘I don’t
remember ever telling Joe that.’’ When asked whether he
told D’Amico or Wall that ‘‘you can’t fight these people’’
that ‘‘he couldn’t give Wall his job back’’ and that ‘‘he had
to go through Lopreato to get his job back,’’ Granell an-
swered, ‘‘I don’t recall saying that, but if I did, the steward
is picked by the business agent which is Dominick, I
couldn’t give Gary his job back if I wanted to.’’ In response
to a question about Grabonski taking down the names of
people speaking to Gary Wall, Granell answered, ‘‘I don’t
know anything about that.’’ Grabonski was not asked about
this. Granell got his job as working foreman by being rec-
ommended by Olsen and Anderson and then approved by
Lopreato. This was pursuant to the contract between the par-
ties. Granell also testified that he has authority on the job to
lay off employees as a form of discipline. He also testified
that it was has personal decision not to recall Wall following
his layoff in February and believed, without discussing it
with his superiors, that had he attempted to recall Wall, he
would have been overruled.
Wall also testified about matters concerning his layoff.
Additionally, he offered into evidence a large number of tape
recordings that he secretly made of his conversations with a
variety of people. One of these tape recordings involved a
barroom conversation Wall had with Superintendent Law-
rence Fields and Superintendent Olsen. Set out below is this
conversation with the letter W referring to Wall, O referring
to Olsen, and F referring to Fields.
W. Only one. . . . Yeah, I just wanted to know that
I respected you guys, and there’s no hard feelings here;
you know what I’m saying, believe me.
O. I hope so, I hope so.
W. Ya Know, I have my friends in the Union too,
and Larry, it was a pleasure working with you, right.
I know that Arthur Coia put pressure on, uh, everybody
to knock me off the job, you know it’s a shame that
they have to use. . . .
O. I thought Coia was your friend?
W. No, he’s supposed to be, but see now what he’s
doing is taking Dominick’s side, you know what I
mean. But see, the Department of Labor is going to run
this election, even the International’s not going to stop
it, you know what I’m saying. but he’s deny it. Friends
in the International told me Arthur Coia was going to
have me knocked off the job, you know what I mean.
I know what it is, I told the man what it is, I told the
man, ya know, don’t take it out on DCI, none of this,
ya know, they’re not the ones that are responsible for
this, remember who, it’s too bad that the Union had to
get you guys involved, you know what I’m saying.
Like I told you in the beginning, when they knocked
me off the steward’s job, that I wouldn’t do anything
to get DCI involved in this, you know what I’m saying.
But they did, they kept pressuring and pressuring and
pressuring, they’re doing it on other jobs too, you
know. They wanted other jobs. The stewards, they told
them this is who I lay off. Maniford told the steward
down there, he told him he said if they knock you off
as a steward I’m going to keep you on as laborer, he
said and Dominick doesn’t pick my layoffs either. He
told him, he told him. He called Dominick ont he
phone and he told Dominick, he said, uh, he said he
doesn’t even want to talk to him.
O. Uh, I understand that Dominick tried to do that
here too, and I told Joe Anderson (inaudible) what has
to happen, it has to happen.
W. Yeah.
O. We’re just so fucking far behind on this.
W. Yeah.
O. I bet that Harry weighed his trip out there, uh
huh.
W. Yeah.
F. You can’t do anything.
W. But I know they got whats-his-name too, uh,
Kevin and Joe, ya know.
Disputed voice: Yeah.
O. Well, I’m glad you understand what’s happening
Gary.
W. Oh, I understand it. Yeah. I never want, you
know. . . . I think I had a good working relationship
with you guys when I was the steward. I want to keep
it that way. When I win the election I’ll come back,
we’ll have another good relationship.
Voice in dispute: I hope so.
W. I’m going to win too dick, and we’d be big all
over the place. . . . You know where [sic] bad thing
they made a mistake too, when they went and charged
all the laborers for Christmas. You know, when the
steward went to all the laborers and said you have $10
a man, right. All the laborers had to give $10 a man
for Christmas. Did you know that?
O. No, I didn’t.
W. Oh yeah. On this job every laborer had to give
$10 a man for Dominick. On other jobs it was $25 a
man. If you didn’t give it you went down on a list.
Every job that I was a steward on, I never did that in
my life. When Johnny Pezzenti used to come down and
say to me you have to make the Christmas collection
from the men, I’d say John I’m not going it. I’m not
going to ask a man for . . . and at the meeting I stood
up and said it. At the meeting I stood up and said it.
I said not one man in this room can stand up and say
that I took 5 cents from them on the job. Nobody stood
up. I [inaudible]. Now, you two guys look at ’em [sic],
you tell them that you never took 5 cents, and they
couldn’t say nothing and the place got like a funeral
parlor.
O. Yeah?
W. Oh yeah.
O. How long has it been going on, Gary?
W. It’s been going on for as long as I can remember,
since I was a kid.
F. There are alot of things going on that are over me.
W. I know that.
F. But have you had any problems with me.
W. Never.
F. One time.
W. Yeah, that was just a misunderstanding.
F. Yeah.
488 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
W. Yeah. You know I had all the respect for you as
a superintendent. I worked with you 20 years ago, I
thought, you know [sic] . . .
F. I think we have some excellent men.
W. Definitely.
W. Yeah. But you know what the shame is, that they
have to hurt these men just [to] get at me, that’s the
shame. You know what I mean Larry.
F. I know that. I, I, I tried to do . . . when they
brought to my attention I would like to have done
something else but I couldn’t do it. Gary, you’ve been
through [inaudible].
W. You see that’s the other thing, too, Bobby knows
Dominick tried to threaten to knock him off as a fore-
man. So see what they’re trying to do now, they’re try-
ing to punish Bobby. But what they’re going to do is
put him back as a foreman next week, you know what
I mean. I told all the laborers down there, I said, I said
to them let[’]s not be naive here, listen, they’re doing
this to get me and you guys just stay put and DCI will
call you back next week. You know what I mean. I
know that Arthur Coia got the [inaudible].
F. I’ll take every man I got back . . .
W. I know you would.
F. . . . including you.
W. Thank you for saying that. I appreciate it.
F. Including you. You’ve been doing what you
should do. Believe me Gary, [the] union have [sic] get
[sic ] to change.
W. I know it.
W. You worked that because you were [a] steward
or superintendent. You know what, uh, Dominick was
calling what’s his name there, uh, Joe Anderson on the
phone every day Larry, every day to lay me off, Bobby
was telling me. You know about that too? Every day.
F. Why?
W. It’s because of the election.
F. Oh, so they’re worried?
W. Oh yeah, they’re definitely worried.
F. Why should you be worried, or they should be
worried?
W. What you may be worried about. But it’s a
shame they involved Joe Anderson and Kevin Leach in
something like this.
F. It’s a shame to hurt people.
W. I know it. I know it, and all those workers who
got to get laid off because of me, ya know. [I]t’s a
shame.
F. Bobby has 10 of the best men in the Goddammed
local.
A day or two before the layoff Wall had a private con-
versation with Foreman Granell at tower 2. According to
Wall, Granell said that Lopreato had finally gotten Wall.
Wall credits Granell as saying that Respondent DCI would
have to lay off everybody in the tower in order to get Wall.
Wall also claimed that he had several conversations with
Granell during which Granell said that Lopreato was giving
Project Manager Joe Anderson ‘‘a lot of heat’’ about getting
Wall off the job.
On the day of the layoff, Wall testified that he spoke pri-
vately with Foreman DiMeo outside of the DCI trailer at the
Northeast Plaza jobsite. According to Wall, DiMeo told him
that it was too much for him to try to fight Lopreato. Al-
though DiMeo did not deny making the quotes specifically
attributed by Wall, he did generally deny that he ever told
Wall he had been receiving pressure from Lopreato, the Re-
spondent Union, Anderson, or Olsen to get rid of Wall and
not bring him back on the job.
Lopreato denies asking or pressuring DCI to take any ac-
tions against Wall. With respect to the testimony offered by
D’Amico, the Respondents point out that D’Amico presently
works for Wall’s wife in a real estate business. D’Amico ad-
mitted that he had spent a lengthly period of time in a prison
for a felony murder conviction resulting from a robbery.
Also, D’Amico was presented with his affidavit given to the
Board wherein he said that the November incident (removal
of Wall as steward) occurred because Lopreato was angry
with Wall because Wall was running for Lopreato’s office.
Wall was not running for office in November. No reason was
given to discredit the testimony of DiPietro whereas Granell
was probably the most unbelievable witness in the entire
record. I credit the evidence of union pressure being exerted
against DCI over Wall, primarily on the basis of the state-
ments attributed to Granell. I also credit the testimony of
D’Amico, DiPietro, and Wall in this regard for the additional
reason that Respondent DCI’s reasons for not recalling Wall
from layoff do not appear logical.
Wall made several attempts to get his job back following
the layoff by appealing directly to Project Manager Ander-
son. Wall visited Anderson’s office on the advice of Larry
Field and General Superintendent Dick Olsen after everyone
but Wall had been recalled to Wall’s former work crew.
Wall had previouslly solicited employment from Foreman
Granell, who according to Wall told him, ‘‘you know I can’t
do anything. [Lopreato] will have my job if I hire you
back.’’ Wall visited Anderson in Anderson’s office in Hart-
ford, which was removed from the jobsite. Wall claimed to
have told Anderson that he knew Lopreato was responsible
for his layoff and that he had been advised by counsel to
speak to Anderson and find out if Anderson wanted to get
involved because the whole affair was going to become a
legal matter. Wall said that Anderson replied that he did not
want to get involved in a legal matter and that he would con-
tact either Wall’s attorney or his own attorney and get back
to Wall. Nothing else was said at that time, and Wall subse-
quently returned to Anderson’s office to follow up on the ini-
tial conversation. Wall asked Anderson if he could be hired
back, and claimed that Anderson replied that he ‘‘was not
hiring back.’’ Anderson did not dispute Walls’ account of
these meetings, except to emphasize it was Wall’s position
that, if Respondent DCI did not assist him in his legal efforts
against the Union, Respondent DCI and Anderson himself
would also become targets of Wall’s legal actions. Anderson
also described a third encounter between himself and Wall
in his office at which time Wall was accompanied by a sher-
iff who served Anderson with a summons to the Connecticut
Superior Court.
Respondent DCI’s superintendent testified that he called
the February layoff because it occurred when DCI’s work
had caught up with the work done by the iron workers. The
layoff was not designed to get at Wall, rather it was an eco-
nomic decision made by Olsen and Anderson. Field was un-
aware of any pressure on DCI by the Union and does not
489DEVELOPMENT CONSULTANTS
recall any conversation with Wall concerning these issues.
This of course would not include the taped conversation in
the barroom which, though Field does not deny, Field could
not remember. However, as noted earlier, Field’s conversa-
tion with Wall in the barroom does indicate that he did not
have any knowledge of pressure being put on DCI by the
Union at one point. Olsen denied that Wall’s nonrecall was
a result of some dispute with the Union. According to Olsen,
he and Anderson determined that they should refuse to recall
Wall so in the future perhaps they would get a steward who
would work. Olsen believed that DCI had paid Wall for
many months as steward when he did no work. ‘‘It burns me
up to have a man being paid for not working.’’ Olsen em-
phasized the policy of the Company only to recall the best
men who worked for them as laborers and there was no rea-
son to recall Wall because he was not one of DCI’s best
men. Anderson denied that Lopreato ever told him to get rid
of Wall. The only instance that he could recall where
Lopreato attempted to be influential in connection with
DCI’s laborer work force was around Christmas in 1985
when he received a call from Lopreato concerning a list of
persons he hoped to save from a layoff, assuming one came
about. Anderson transmitted this list to DiMeo who tore it
up.
Anderson denied receiving any pressure from the Union
and denies that any decisions made as to the work force were
related to union influence. He contended that the February
layoff occurred because the structural steel work slowed and
DCI was able to save money by accomplishing the layoff.
DCI did introduce evidence to demonstrate it did save money
by having the layoff.
The General Counsel has determined that the February
1986 layoff was lawful, contrary to the argument of Wall.
Anderson confirmed that he made the decision that Wall
should not return to the job after the layoff. He noted, how-
ever, it was up to the foreman to determine whether he
wished to recall a particular laborer. Anderson decried the
practice of featherbedding, which is inherent in the concept
of a nonworking steward. He got what he considered to be
a threatening letter from Wall’s attorney when he was re-
quested to join with Wall in opposing the Union. After this
letter was received, he had lunch with Lopreato to ask him
what he was going to do about it. Thereafter he called coun-
sel. In sum, Anderson noted that when Wall was paid as a
steward, he believed that DCI was ‘‘paying for nothing.’’
When asked how Wall’s approach to his job as steward af-
fected his view of him as a laborer, Anderson stated that
‘‘any featherbedding, whether it be by an operating engineer,
or carpenter, or brick layer, I don’t care. I’m not picking on
any of you. It’s the same in general. I cannot tolerate it. I
will not tolerate it.’’ Anderson denied he made any oral
agreement with Wall to be a nonworking steward. He testi-
fied that Wall was supposed to but never did any work and
was frequently off the jobsite in a phone booth when Ander-
son arrived for work. Anderson termed nonworking stewards
as a ‘‘thorn in my side.’’ It was Anderson’s view that he
would have gotten an even worse steward if he had taken ac-
tion against Wall when he was the steward. Anderson con-
sidered it to be a Christmas present when Wall was removed
as a steward. His reaction was, ‘‘maybe we’ll get a steward
that did something.’’ He was also concerned about the
amount of overtime that Wall earned while as a steward. On
cross-examination, Anderson denied that it is one of the un-
written agreements which exist that a laborer steward does
not do any laboring work. It should be noted that DCI Work-
ing Foreman Granell testified that this was a common prac-
tice.
By the time of Wall’s layoff, his dispute with Lopreato
and other union officials had become the subject of debate
at union meetings. According to Wall, an argument devel-
oped between himself and Lopreato at the January 1986
union meeting after Lopreato told all the laborers he had
fired Wall because he had made $7500 in 1 month. Wall re-
plied by stating that he made his money legitimately, while
Lopreato had to resort to shaking down the laborers.
Looking at all the evidence with respect to Wall’s employ-
ment with DCI, his disputes with Lopreato, his removal as
steward and subsequent failure to be recalled from layoff,
and the reasons given therefor by the Respondent Company,
I conclude that the General Counsel has proven by a
proponderance of the evidence that Wall’s layoff did result
from pressure from the Union and/or Lopreato as its agent
and not for the reasons advanced by Respondent DCI. Of all
the laborers on Wall’s crew to be laid off on February 7,
1986, Wall was singled out as an undesirable presence on the
jobsite and was the only laborer on that crew not to be re-
called by Respondent DCI, even though Respondent DCI
continued to hire many laborers in the months to follow.
Records disclose that 26 laborers who had no prior experi-
ence on the job were hired by Respondent DCI at the North-
east Plaza jobsite following Wall’s layoff. Moreover, addi-
tional laborers were recalled to employment following Wall’s
layoff who had previously worked at the Northeast Plaza job.
One laborer who was laid off on February 7 and was not re-
called was not on the crew with Wall. This laborer had a his-
tory of tardiness and/or absenteeism on the job and was not
considered desirable for that reason. The General Counsel
points out that Wall had become an unruly and dissident
presence on the jobsite who was posing a threat to
Lopreato’s control over the Union. In addition to refusing to
collect money for political campaigns or for Christmas funds,
Wall put himself in direct dispute with Lopreato. By the time
of Wall’s layoff, he had clearly identified himself as one in
open opposition to Lopreato’s management of the Union.
As I have earlier found, there is evidence that the Union
increasingly put pressure on Respondent DCI to relieve Wall
of his duties as a laborer on the Northeast Plaza jobsite. I
believe and find that this pressure was the reason Wall was
not recalled from the layoff of February 7. Respondent DCI’s
reasons for not recalling Wall simply do not appear logical
to me. All of Respondent DCI’s management objections to
Wall related to his performance as a steward and none to his
performance as a laborer attending the burners. Had DCIs
management been as unhappy with Wall as they stated at the
hearing, there was no reason to hire Wall as a laborer after
he was removed from his job as a steward. In this regard,
Project Manager Anderson stated that he was very upset with
Wall’s performance as a union steward, notwithstanding the
fact that two of his supervisors, Olsen and Granell, testified
that it was an accepted practice on all large jobs that the
steward would not engage in manual labor. Anderson charac-
terized Wall’s role as steward as being nothing more than
‘‘featherbedding’’ and said that he had serious reservations
about Wall being recalled because it was his hope that a
490 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
more competent steward might be hired. Anderson was un-
able to cite anything about Wall’s performance unrelated to
his duties as steward or his exercise of steward privileges as
his reasons for not recalling Wall.
These sentiments were echoed by General Superintendent
Olsen who complained that Wall was ‘‘always running away
with one of the Union BA’s or this or the other thing.’’
Olsen acknowledged that he had no basis for believing that
Wall was not on the job and not performing his duties during
the time he was not a steward. Olsen also acknowledged that
it was accepted practice that stewards did not engage in typ-
ical laborers’ work and neither Anderson nor Olsen was sig-
nificantly concerned about Wall’s performance of his steward
duties prior to the initiation of Lopreato’s pressure to bother
to discipline Wall or to attempt to resolve the problem they
perceived constructively with union officials.
The testimony is that the ultimate decision not to recall
Wall appears to have been made by Foreman Robert Granell.
Granell’s stated reason for this decision was unusual. Granell
stated that he had no problems with Wall’s work, either dur-
ing or after Wall’s tenure as steward. Granell also stated that
none of his supervisors ever told him to get rid of Wall and
denied that he was ever subjected to any pressure to remove
Wall from the jobsite. Granell said that he had never dis-
cussed Wall with any of the supervisors and that his super-
visors never inquired about Wall’s performance. However,
despite the fact there were no problems with Wall’s work
and that he never discussed Wall with any of his superiors,
Granell stated that it was his belief that he would have been
overruled had he decided to recall Wall from layoff with the
other members of his crew. When asked to explain this,
Granell simply said it was a personal opinion and that he had
no reason for feeling the way he did. I would again note at
this point that Granell’s position was secured by Lopreato.
Although Lawrence Field initially testified that Wall was
not one of his better laborers, he subsequently admitted that
he had never seen Wall work and had no basis for saying
that Wall was not a good laborer. On the tape recorded con-
versation set forth earlier Field appears to have admitted in
the conversation that he would recall Wall. Laborer Foreman
DiMeo testified that Wall had done some work while he was
as steward. DiMeo also acknowleged that to the extent Wall
may have been absent from the jobsite, it was not unusual
for stewards to be absent from the jobsite in order to attend
to union business. DiMeo also stated that he had never had
any problems with any of Wall’s work.
Another of Anderson’s complaints about Wall was that he
worked too much overtime, even though he acknowledged
that the collective-bargaining agreement awarded stewards
first preference to work overtime. Although Anderson said
that he had problems with the number of hours Wall was
working and at one point directed his subordinates to look
into the matter, there was no evidence that any discrepancies
or abuse of overtime privileges were uncovered by Respond-
ent. Anderson also complained that Respondent DCI was
billed for overtime which Wall performed for the contractors.
Wall’s successor as steward, Thadius Grabonski Jr., acknowl-
edged that he also performed overtime work for contractors
other then Respondent DCI, even though he was on the DCI
payroll. According to Grabonski, DCI would simply
backcharge the contractor for which the overtime had been
performed for the value of the overtime services. Anderson
admittedly agreed to give Wall jurisdiction over the jobsite
gates, a position that necessitated a great deal of overtime
and lent itself to backcharging. Additionally, although Ander-
son complained that a lot of times he would come to work
and see Wall in the telephone booth off the job, Anderson
was unable to furnish any dates in connection with these ob-
servations and apparently never investigated them or had
Wall disciplined for being off the job. In conclusion, the Re-
spondent DCI failed to advance any reasons which are either
logical or not contradicted by the evidence for its failure to
recall Wall following the February 7 layoff. I find that the
explanation for the Company’s inaction in this regard is
found in the evidence that Lopreato and Respondent Union
did not want Wall on the jobsite and pressured DCI to have
him removed.
In addition to the evidence of union pressure which I have
heretofore found as fact, I find the timing of events to be
compelling. First, Wall is removed as union steward in No-
vember. DCI management is apparently very pleased accord-
ing to the testimony of Anderson and Olsen. A ‘‘Christmas
present’’ was one description of Wall’s removal. Yet, even
given the ill will and stated dissatisfaction with Wall’s per-
formance as steward, DCI gives him a choice job as a la-
borer. Of course, Lopreato’s letter had advised DCI that Wall
could remain on the jobsite as a worker.
Second, Wall’s criticism of Lopreato grows and culminates
in open opposition at a late January union meeting. Within
2 weeks, Wall is laid off and never recalled, although the
rest of his crew was recalled and no criticism of his perform-
ance as a member of the crew is to be found in the record.
Although DCI management insists it does not bend to
pressure from the Union, Anderson admittedly passed to his
foreman a list of workers’ names to be retained in case of
layoff prepared by Lopreato. Though the foreman chose not
to act on the request, Anderson’s willingness to pass the list
on demonstrates DCI’s willingness to accommodate
Lopreato. Therefore, I find that Respondent DCI violated the
Act by giving into the pressure of the Union, and the Re-
spondent Union violated the Act by applying the pressure on
Respondent DCI to not recall Wall from layoff.
C. Did Respondent Union Unlawfully Discriminate by
Failing and Refusing to Refer for Employment the
Charging Parties?
At the Respondent Union’s February 1986 meeting,
Cooksey Sr. publicly announced his candidacy for union of-
fice. Prior to this meeting, in the fall of 1985, he testified
that he had privately advised Pezzenti of his intention to seek
union office and Pezzenti was supportive of Cooksey Sr. at
the time. In January 1986 Cooksey Sr. also shared his inten-
tion to seek union office with Joseph Klecman the steward
on the Ceco jobsite where both men worked. Eventually,
Cooksey Sr. was approached by Lopreato on the Ceco jobsite
in March 1986 when Lopreato asked Cooksey Sr. whether he
did not like Lopreato and the way Lopreato was running
things. Cooksey Sr. said he had some disagreements with
Lopreato’s leadership of the Union and added he did not
have an opinion of Lopreato as a person. Cooksey Sr. also
told Lopreato he wanted a seat on the executive board and
have a say with respect to what was happening with pen-
sions. According to Cooksey Sr., Lopreato replied that, if he
wanted a seat on the board, Lopreato would put him on the
491DEVELOPMENT CONSULTANTS
board, and asked Cooksey Sr. why he wanted to have ‘‘this
stupid election?’’ Cooksey Sr. stated that he advised
Lopreato he was not interested in such an arrangement, at
which time Lopreato wished him luck and the conversation
ended. Lopreato generally agreed with Cooksey Sr.’s descrip-
tion of the conversation except denied offering Cooksey Sr.
a position on the executive board.
I credit Lopreato’s denial of offering Cooksey Sr. a posi-
tion on the executive board, because had he done so, there
was no reason for Cooksey Sr. to refuse. Also, there is evi-
dence that there was no vacancy on the executive board
available.
Immediately following this conversation, Cooksey Sr. tes-
tified he observed Lopreato and Klecman talking. Shortly
thereafter, Cooksey Sr. was approached by Klecman, who
said, ‘‘Billy, I wish you would change your mind, I like you,
we’re old timers together. We started out shoveling together,
shoveling concrete 20 years ago, you don’t need this. You’re
going to get hurt here, and I don’t mean physically . . . but
you’ll never work again. Your family’s going to be in trou-
ble.’’ Cooksey Sr. responded by stating that such strategies
were outdated and were no longer used, to which he claimed
Klecman replied, ‘‘well, you’ll work, Billy, but you’ll work
out in Putnam.’’ Cooksey Sr. explained the reference to Put-
nam is analogous to a Russian being exiled to Siberia, and
that a laborer assigned to Putnam would be out in the wilds
far away from Hartford. Klecman did not dispute the remarks
attributed to him by Cooksey Sr.
Cooksey Sr. testified that he was employed as a labor
foreman at the Ceco jobsite until he was laid off for lack of
work on May 2, 1986. Among Cooksey Sr.’s duties as fore-
man was to determine when it was appropriate for his em-
ployer to hire more laborers or to cut back the crew. Such
an issue presented itself at the jobsite on April 17, 1986,
when Cooksey Sr. and General Labor Foreman Joe Dumont
discussed the staffing that would be necessary for a planned
push on the job. In order to handle the increased pace of
construction, it was decided that seven laborers would be
hired on the jobsite. Consistent with the hiring hall practice,
Cooksey Sr. advised Labor Steward Joe Klecman that seven
new laborers were needed for April 18, and Klecman stated
that he would take care of it.
The union hiring hall is run out of a facility on Wyllis
Street in Hartford located approximately 1-1/2 miles from the
main union hall on Ledyard Street. The hiring hall is open
Monday through Friday, from 7 until 9 a.m., and is currently
managed by dispatcher William DelGaizo.
According to DelGaizo he refers people from the hiring
hall on a first-in first-out basis each day. Thus, DelGaizo
claims that as individuals looking for work entered the hall,
they sign their names on the list and, as jobs are phoned into
the hall from Ledyard Street, DelGaizo would offer jobs to
the first person on the list and proceed down the list with
each succeeding job. Seniority on the list is good for 1 day
only, and an individual’s failure to sign the list on suc-
ceeding days will result in his not being considered for refer-
ral. When an individual is referred out of the Wyllis Street
hall, DelGaizo will give that person a referral slip which the
person is supposed to take to the Ledyard Street hall. This
is turned in at Ledyard Street and exchanged for a referral
card, which the individual takes to the jobsite and presents
to the employer before going to work.
Although DelGaizo testified that the hiring hall’s operating
procedures have not changed in the 2 years he has been run-
ning the Wyllis Street operation, there is evidence in the
record that the hiring hall’s operating procedures have been
subject to recent change. Wall testified that the first-in first-
out procedure was a relatively recent procedure that began to
be applied only as the hearing in this case grew near. Prior
to that, according to Wall, the hiring hall used a more ran-
dom process whereby DelGaizo exercised considerable dis-
cretion in picking people off the sign-in list for referral.
Klecman recalled being asked to refer laborers to the Ceco
jobsite for April 18, but claimed that the order was only for
six laborers. Accordingly, Klecman stated that he called the
union hall and spoke to Pezzenti and arranged to have six
laborers referred to Ceco’s jobsite on April 18. Pezzenti of-
fered another version of facts in this regard. According to
Pezzenti, on or about April 17, Klecman called the union hall
and requested that seven laborers be referred to the Ceco job-
site on April 18. Pezzenti called the hiring hall on the morn-
ing of April 18, and requested seven laborers for referral for
Ceco. A short time later, six laborers arrived at the union
hall for referral and Pezzenti dispatched them to the Ceco
jobsite. Soon thereafter Pezzenti claimed to have received a
phone call from an unidentified person from Ceco inquiring
as to the status of the seventh laborer. Pezzenti said that he
had advised the Ceco person that the seventh person had yet
to show up for referral. The Ceco person then said that the
seventh person was no longer needed, and that the position
was canceled. Cooksey Sr. denied that the order for the sev-
enth laborer was ever canceled.
1. William Cooksey Jr.
The seventh laborer to be referred to Ceco on the morning
of April 18 was Cooksey’s son, Cooksey Jr. Cooksey Jr.
testifed that he was in the union hiring hall on the morning
of April 18 when the call came in for five laborers to do
stripping work at Ceco. Including Cooksey Jr., there were
only four laborers in the hall at the time, and all four re-
ceived a preliminary referral slip for the Ceco job. This slip
must be presented to an official at Ledyard Street hall where
a second slip is issued to be presented to the employer at the
jobsite. Cooksey Jr. testified that it was necessary to produce
a union book to receive a second referral slip and that he had
forgotten his book at his father’s house that morning. Ac-
cordingly, Cooksey Jr. stopped by his father’s house on the
way to the union hall and arrived at the hall just as the other
three laborers who were referred to Ceco were leaving.
When Cooksey Jr. entered the hall, Pezzenti advised him that
he was late for the referral and had, therefore, been replaced.
Cooksey Jr. then proceeded to the Ceco jobsite without the
second referral slip and observed Klecman signing on seven
laborers to work. Cooksey Jr. noticed that two of the individ-
uals who were being signed up had not been present at the
hiring hall, so he asked them how they came to find out
about the Ceco job. According to Cooksey Jr. they replied
that Pezzenti had called them at their home and instructed
them to be on the job at 7 a.m. the following day. The iden-
tity of these individuals was not disclosed. Cooksey Jr. then
advised his father of what had happened and Cooksey Sr. ad-
vised his son to get himself an attorney.
Cooksey Jr. acted on his father’s advise and consulted
with Attorney Dave Kamins. Kamins then contacted Union
492 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Attorney Michael Bearse and an agreement was reached
whereby Lopreato arranged for Cooksey Jr. to report to work
at Ceco on April 28. Cooksey Jr. was instructed to pick up
a referral slip from the union hall, which would then direct
him to employment with Ceco. Cooksey Jr. reported to the
union hall as scheduled and received a referral slip from
Pezzenti which said that Cooksey Jr. was to report to
Klecman who was to be waiting at the jobsite. When
Cooksey Jr. arrived at the jobsite, Klecman was nowhere to
be found. Cooksey Jr. waited for about an hour for Klecman
to arrive and asked others who were present whether they
had seen Klecman. No one was able to help Cooksey Jr. to
find Klecman, so Cooksey Jr. went into an office trailer and
asked employee Lena Kilroy whether she had seen Klecman.
Cooksey Jr. explained that he had been referred to Ceco
from the union hall and Kilroy responded by saying that
Klecman had said no one was to be put to work that day
because there were too many employees already. Cooksey Jr.
then left the jobsite without ever seeing Klecman.
Klecman’s account of the morning of April 18 contradicts
Pezzenti’s. Pezzenti stated, as noted above, that Ceco can-
celed one of the requested laborers and that Klecman gave
no indication that any position had been canceled and stated
that the only reason Cooksey Jr. did not go to work was that
he did not have a referral slip from the union hall. Klecman
expressly stated that had Cooksey Jr. returned to work on
April 28 he would have gone to work, because the employer
needed six laborers and only five had been sent. Klecman
also stated that on occasion, when a worker showed up with-
out a proper referral slip, he called the union hall to clear
up the matter. He offered no explanation why he did not
simply call the union hall to verify Cooksey Jr.’s referral
since he testified he needed another man.
Cooksey Jr. continued to solicit work from Respondent
Union’s hiring hall following the events at Ceco. On the
morning of May 22, 1986, Cooksey Jr. was one of four or
five individuals present at the hiring hall when it opened. Re-
spondent Union President Charles LaConche was running the
hiring hall that day and received a call for three laborers with
cards to report to the Putnam bridge. Cooksey Jr. stated that
he was third in line at the time and the two individals who
were in front of him were handed referral slips for the job
by LaConche. At that point, LaConche supposedly asked,
‘‘[I]s there anybody else that wants to go?’’ Neither of the
two individuals who were in line behind Cooksey Jr. had
cards and Cooksey Jr. said that he would take the job and
LaConche said, ‘‘[N]o, I can’t give you the slip.’’ Cooksey
Jr. asked LaConche why he could not be given the slip, but
LaConche ignored him and phoned Pezzenti at the union hall
and said that ‘‘well I only got two guys with cards who will
take the job, you’ll either have to find someone else or you’ll
have to wait until someone comes in.’’
LaConche’s account of the events of May 22 is far dif-
ferent from that of Cooksey Jr. According to LaConche, he
opened the Wyllis Street hiring hall at 7 a.m. and the phone
was ringing as he passed through the door. While he picked
up the phone, the laborers began signing the hiring hall reg-
ister. The phone call was from Pezzenti who said that at least
three laborers were needed for jackhammer work at the Put-
nam bridge. LaConche then reviewed the list and the first
person rejected the job while the second person accepted.
The third person on the list also accepted the position at
which point Cooksey Jr. spoke up and said that he would
also take the job. LaConche told him to wait a minute as
Cooksey Jr. was just in the process of signing in and others
were ahead of him on the list. According to LaConche, he
told Cooksey Jr. that he could have the job if nobody wanted
it. LaConche claimed that Cooksey Jr. stated that he did not
believe that LaConche wanted to give him the job, and
Cooksey Jr. turned around and walked out of the hiring hall.
LaConche said that the job was never filled that morning and
had Cooksey Jr. returned the job would have been his.
Respondent Union introduced records to show that
Cooksey Jr. received job referrals both before and after his
father’s announced intention to run for office in February
1986. As pertinent, Cooksey Jr. was referred in January, Feb-
ruary, July, August, September, October, and November
1986.
The General Counsel urges the instances involving
Cooksey Jr. in the spring of 1986 were in a reprisal for his
father’s candidacy for office. It is Respondent’s position that
it was nothing more than a misunderstanding and that the
Union had no intention to discriminate against Cooksey Jr.
or take any reprisal against him for his father’s action.
I believe the evidence establishes that the Union’s leader-
ship did decide to punish Cooksey Sr. for his opposition and
did so, inter alia, by discriminating against his son in job re-
ferrals for a period of time before and after the election. I
credit Cooksey Sr. and Cooksey Jr.’s version of both the
Klecman threat of reprisal and the subsequent runaround
Cooksey Jr. received with respect to the Ceco and Putnam
jobs.
Klecman and Pezzenti contradict each other and Klecman
would not even follow his admitted practice of verifying a
referral by phone for Cooksey Jr. It should be remembered
that he would not extend this evidently common courtesy to
the son of his friend and fellow foreman. Even after Cooksey
Jr. retained counsel, the Union continued to give him the
runaround. Klecman’s statement that had Cooksey Jr. stayed
on the Ceco jobsite until he returned on the second Ceco re-
ferral sounds suspiciously similar to LaConche’s statement
that had Cooksey not left the hiring hall he would have been
referred to the Putnam bridge job. It appears unlikely to me
that Cooksey Jr. would have left the hiring hall before being
certain that he was not getting the Putnam job as he had
hired an attorney to assure he would not be discriminated
against. I credit Cooksey Jr.’s version of the hiring hall inci-
dent involving LaConche. Accordingly, I find that Respond-
ent’s discrimination in referrals with respect to Cooksey Jr.
is in violation of the Act.
2. Joseph DiLoreto
DiLoreto was a candidate for union office on Wall’s slate
in the June 1986 election. A few days prior to Respondent
Local’s May 19, 1986 nominating meeting, DiLoreto had oc-
casion to speak to Lopreato by telephone. DiLoreto was
working as labor steward at the O’Neil Construction site at
Bradley Field at the time and Lopreato began the con-
versation by yelling and screaming and wanting to know
what DiLoreto’s problem was. DiLoreto said that he did not
have a problem, at which point he said that Lopreato told
him that he did not want DiLoreto sitting behind Gary Wall
at union meetings anymore. DiLoreto stated that he could sit
anywhere he wanted, and Lopreato said that ‘‘no you can’t,
493DEVELOPMENT CONSULTANTS
because you’re my friend and he is not.’’ Lopreato then re-
minded DiLoreto that it was Lopreato who had given him his
job and continued ranting and raving for several more min-
utes. Eventually, DiLoreto hung up the phone and returned
to work. Several minutes after DiLoreto’s phone conversation
with Lopreato, Lopreato again called DiLoreto at the jobsite.
Lopreato told DiLoreto that DiLoreto had to come to the
union hall immediately because Lopreato had a lot of prob-
lems with the O’Neil Construction job. DiLoreto replied that
he was working overtime on the job and had a deadline to
meet and he preferred to work and would report to Lopreato
the following day. Lopreato said that it was essential for
DiLoreto to come to the union hall that evening, so DiLoreto
hung up the phone and headed for Hartford. When DiLoreto
arrived at the union hall he was met by Lopreato who want-
ed to know what had happened on the jobsite earlier that day
when Charles LaConche had visited. DiLoreto reviewed the
events of the day after which Lopreto asked him what he
thought of Lopreato’s administration. DiLoreto said that he
did not know, and Lopreato said that he was talking to
DiLoreto man to man, Italian to Italian, and just wanted to
know what DiLoreto thought of his administration. DiLoreto
replied that he thought it might be time for some changes,
at which point Lopreato threw his hands in the air and said
‘‘that’s all I wanted to hear. That’s all, there will be changes
made. Go ahead and unionize.’’ Lopreato then began laugh-
ing and DiLoreto left the hall.
DiLoreto was laid off from his job on June 13, 1986, due
to lack of work. Following his layoff, DiLoreto reported to
the Wyllis Street hiring hall on a daily basis following the
June 14 election. On June 30, DiLoreto signed in at the hall
consistent with his usual practice. There were about 40 labor-
ers present that day and at one point William DelGaizo who
was running the hall that day shouted out that he had a job
for 1 man at Bradley Field for 1 day. No one responded, so
DelGaizo announced availability a second time. At that
point, DiLoreto said that he would take the job, but DelGaizo
ignored him and continued to solicit laborers for the position.
When no one came forward, DelGaizo picked up the phone
and DiLoreto overheard him say to someone at the other end,
‘‘Joe DiLoreto wants this job. Uh-huh, I know, I know. Forty
men are here and no one wants it, uh-huh, uh-huh, OK.’’
DelGaizo then hung up the phone and DiLoreto asked him
if he could go to the union hall or what was he supposed
to do. DelGaizo replied that the union hall would call back,
something which DiLoreto found unusual. In any event,
DiLoreto waited at the hiring hall for another 20 to 25 min-
utes and then left. DiLoreto returned to the hiring hall the
following morning and asked DelGaizo what had happened
to the job he had volunteered for the previous day. DelGaizo
advised DiLoreto that the job had been canceled and that the
contractor did not need anyone. DiLoreto asked DelGaizo
where he had received his information and DelGaizo said
that he had spoken to Charles LaConche. DiLoreto then went
to the Union’s Ledyard Street hall to see LaConche.
DiLoreto asked LaConche why he had been refused work the
proceeding day, and LaConche replied that DiLoreto had not
been refused work. LaConche said that he had called back
to the hall to send DiLoreto to the job, but DiLoreto was no
longer there so the job went to someone else. DiLoreto then
said that he did not believe his being told to wait was stand-
ard operating procedure, to which LoConche replied, ‘‘don’t
think we’re trying to keep you out there because there are
a lot of guys have been out of work longer than you.’’ In
regard to this incident, DelGaizo testified that he attempted
to call DiLoreto’s name for the job in question but DiLoreto
was not in the hall because he had gone to get coffee without
checking with DelGaizo. This does not square with
DiLoreto’s claim that DelGaizo told him that the job he vol-
unteered for was canceled. LaConche testified that he told
DiLoreto that he had not been referred out because he was
not present when LaConche called back and there had been
other people in the hall that had been out of work longer
then he had been and that as local president he had been too
busy to bother with individual concerns of members and he
wanted to make it clear that DiLoreto was not being kept out
of work. Since the date of the incident in question, DiLoreto
was referred for work on July 7, 1986, and to the date of
the hearing, he missed only some 3 weeks of work. All of
his jobs had come from referral from the hiring hall, includ-
ing his present position as a laborer for Partitions, Inc. at the
Bradley Field site. DiLoreto filed a charge with the Board
on June 30, 1986. DelGaizo testified that he had not referred
DiLoreto out to the job because he was out for coffee and
that to compensate him for the misunderstanding, several
days later had referred him out of turn with the under-
standing of the other men in hall.
Again, I find that the union leadership has discriminated
against one of its opposition. That it did not continue to do
so after a charge was filed with the Board does not excuse
the initial act. The conflicting stories told by LaConche and
DelGaizo are not persuasive to me. I credit DiLoreto’s ac-
count of the hiring hall incident and agree it is unusual for
DelGaizo to check with LaConche before giving a job refer-
ral to a particular worker. It is also not part of the Respond-
ent’s stated procedure for operation of the Wyllis Street hall.
I find that Respondent Union discriminated against DiLoreto
by refusing to refer him to work available on June 30 and,
thus, violated the Act.
3. Cooksey Sr.
Following his layoff, Cooksey Sr. reported to the hiring
hall almost on a daily basis for several months before being
referred to work in August 1986. Cooksey Sr. acknowledged
that prior to that referral, he did have occasion to accept 1-
day employment assignments through the hiring hall. How-
ever, he turned down these opportunities and testified that 1-
day jobs would have detracted from his reputation as an ex-
perienced laborer and foreman. He testified that 1-day labor-
ers were generally regarded as irresponsible by construction
contractors. Eventually, however, he testified that it became
necessary to volunteer for 1-day assignments because he be-
came desperate for money as a result of the Union’s failure
to refer him to more lucrative employment. He testified that
between the time of his layoff and his eventual referral in
August, he observed several people receive referrals on more
than one occasion, such as Joe Lockhart, Jimmy Cunning-
ham, Frank Freeman, Jim Lawson, Steve Manos, Manny
Gazara, and Dino Jentile. Some of these individuals were re-
ferred out as many as three or four times before Cooksey Sr.
received his first referral.
Cooksey Sr. also testified that he experienced problems
with operation of the hiring hall in December 1986, when he
found himself at the top of the list one morning with no re-
494 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ferral. Cooksey Sr. subsequently learned that Fusco Con-
struction was hiring a number of laborers that week and
complained to Lopreato that the Respondent Union was re-
ferring laborers to Fusco without going through the Wyllis
Street hall. At that point, Lopreato told Cooksey Sr. he could
have a job if he wanted, and the next day Cooksey Sr. was
referred to work. With respect to Cooksey Sr.’s testimony,
Pezzenti denied that he had a conversation with Cooksey Sr.
in the fall of 1985. Montiero, job superintendent for the Ceco
corporation testified that he laid off Cooksey Sr. due to an
unacceptable work performance. He also testified that
Lopreato in April 1986 tried to convince him (Montiero) to
retain Cooksey Sr. I do not credit any of Montiero’s testi-
mony as it was internally contradictory and appeared con-
trived. Respondent Union also points out that Cooksey Sr.
testified that he did not take 1-day referrals and that Cooksey
Sr. also testified that after his layoff he was depressed and
he did not go to the union hall to seek job referrals. It further
urges in those cases where Cooksey claims that certain labor-
ers got referrals though he signed in at the hall ahead of
them, Cooksey Sr. had no knowledge of whether those men
had worked for the same employer previously or had a spe-
cial skill or experience which was required for the job. Fur-
ther, Respondent argues that even after Cooksey Sr. had an
argument with Lopreato in December 1986 about Cooksey
Sr. not being referred to a job at Fusco Construction,
Cooksey Sr. was referred from the hall the next day to an
assignment with the N & S Dunn Co.
I credit Cooksey Sr.’s testimony about the incidences of
being passed up for referrals and find that he too, like his
son and DiLoreto, was discriminated against in referrals. I
also credit his reasons for not taking 1-day jobs and note that
the Board has held that 1-day referrals and onerous referrals
can reflect discrimination just as no referral at all would.
Cooksey Sr. is a senior and an experienced laborer in the
Local Union and not the type laborer who would ordinarily
get such lessor referrals.
4. Gary Wall
Gary Wall also testified that he experienced problems find-
ing work from the hiring hall following his layoff from Re-
spondent DCI. Wall admitted he did not report to the hiring
hall from February until September 1986. However, the Re-
spondent Union records revealed that at least a month passed
before Wall was referred for work. As I have already made
a separate finding that Wall was discriminated against by the
Union when it successfully kept him from being recalled
from layoff at Respondent DCI, I find there is sufficient evi-
dence to justify a separate finding that Wall was discrimi-
nated against in the hiring hall referral system. Wall testified
that the jobs that he was referred to were the worst type
available, being jackhammer and underpinning jobs. These
jobs are not normally given to a man of Wall’s age. I there-
fore find, though the evidence is not as strong as with the
other three Charging Parties, that Wall was unlawfully dis-
criminated against in the hiring hall referral system as a con-
tinuation of the discrimination begun when the Union sought
to have him removed from the DCI jobsite and subsequently
caused him not to be recalled.
D. Did the Respondent Union Violate the Act by
Operating an Exclusive Hiring Hall Without Objective
Criteria or Standards for Referrals?
It is the General Counsel’s position that the Union oper-
ates an exclusive hiring hall at least with respect to the AGC
and CCIA member contractors. The exclusivity is apparent
from this provision in the AGC collective-bargaining agree-
ment:
The local union having jurisdiction shall be recognized
as the principal source of laborers and shall be given
the first opportunity to refer qualified applicants for
employment. The Employer shall be the sole judge to
whether or not the men furnished are qualified. The
Employer reserves the right to transfer or rehire labor-
ers, provided for those laborers rehired, the Employer
shall notify the Union of the rehiring within 48-hours
of the date of rehiring.
The CCIA agreement which is almost identical to the AGC
contract quoted except that the notice requirement is not sub-
ject to the 48-hour time limit.
On August 1, 1986, Lopreato attended a meeting at the
CCIA office with CCIA President Marvin Morganbesser and
other union and employer representatives. Among the sub-
jects discussed at this meeting was the contractual language
pertaining to the Union’s hiring hall. Lopreato testified that
the language was discussed in the context of the employer’s
right to transfer employees from one local jurisdiction to an-
other. However, the language of the letters that were subse-
quently written confirming what had been agreed to at the
meeting indicates that the discussion with respect to the hir-
ing hall was broader than Lopreato indicates. By letter dated
August 5, 1986, Lopreato advised the business managers of
Laborers’ Local Nos. 455 and 665 that although employers
were free to move incumbent employees from one jurisdic-
tion to another, that ‘‘at the same time, the employer should
telephone the Local Union having jurisdiction to allow that
local Union an opportunity to refer new employee to that
job.’’ In a subsequent letter written on August 12, 1986,
from Morganbesser to Lopreato, after discussing the transfer
issue, Morganbesser separately addressed the employer’s ob-
ligation with respect to new hires and acknowleged that the
employers had the duty to give the Local Union where the
work is performed the first opportunity to refer qualified ap-
plicants for employment. Specifically, the letter states, ‘‘At
the August 1, 1986 meeting it was also agreed that if a con-
tractor requires new employees, the Local Union where the
work is to be performed must be given the first opportunity
to refer qualified applicants for employment, and that the
employer has the right to rehire an employee with or without
intervening employment, within a 6 month period from lay-
off.’’
In a letter on the same subject to Local Union 665 from
Lopreato on August 20, Lopreato states:
Article II Section 6 of the Agreement reserves to the
Employer the right to freely transfer all his regular la-
borer employees from job to job throughout the state of
Connecticut regardless of the local Union territorial ju-
risdiction. The term ‘‘key men’’ means the regular la-
borer employees on the Employer’s payroll.
495DEVELOPMENT CONSULTANTS
It is also understood that if the Employer needs new ap-
plicants for employment (i.e. new employees) in the
State of Connecticut, he must comply with Article II,
Section 6 which recognizes the Local Union, where the
job is being performed, as the principle [sic] source of
laborers and must be given the first opportunity to refer
such qualified applicant for employment. In addition, an
employer cannot circumvent this provision by hiring a
laborer in a favored local union jurisdiction in order to
avoid a laborer in another local union jurisdiction.
The General Counsel points to certain testimony in the
record to show that the Respondent Union intended to oper-
ate its hiring hall in an exclusive manner, consistent with the
terms of its collective-bargaining agreements with the AGC
and CCIA. When Joseph DiLoreto was appointed steward in
1984, for example, he testified that Pezzenti instructed him
not to let anyone work on the jobsite without union approval.
Cooksey Jr. testified that Pezzenti and LaConche pulled him
off of a job in 1983 after he went to work as a laborer at
a time he did not have a laborer’s book. Cooksey Jr. was
also admonished for returning to work following a recall
with DCI in 1984, without advising the union hall of his re-
turn to work. According to Cooksey Jr., Pezzenti approached
him on the job and ‘‘asked me who the hell I was coming
down here and taking a job on my own, when there are guys
at the hall who don’t have a job?’’ Pezzenti then told
Cooksey Jr. that Pezzenti was going to let him go and bring
one of the people from the hiring hall up to the jobsite to
replace him. After a conversation between Pezzenti and a
DCI official, however, Pezzenti agreed to allow Cooksey Jr.
to continue to work.
It is the position of Respondent Union that the language
of the contracts is ambiguous and not responsive to the claim
that the Union operates an exclusive hiring hall. It argues
that the provisions require only the particular local having
territorial jurisdiction be offered the first opportunity to refer
qualified applicants. The contract does not by its language
expressly require contractors to utilize the hall as the first,
sole, or exclusive source of referral. It argues that the provi-
sions require only that where a contractor chooses to utilize
the referral hall as a source of laborers, that local having ter-
ritorial jurisdiction shall have the first claim on the oppor-
tunity to refer employees. The Respondent Union argues that
the letters, quoted above, support this interpretation.
On this point, I disagree with Respondent Union. The let-
ters themselves go to great lengths to define exactly the cir-
cumstances under which employers may transfer workers
from one job to another, retaining keymen, without having
to utilize a local hiring hall. It would thus appear to me that
the letters make clear that except in those circumstances, an
employer must first look to the hiring hall of the local in
whose jurisdiction work is being performed for any other
employees which it chooses to hire.
On the other hand, it appears from the evidence that the
Union’s enforcement of its exclusive hiring hall provisions in
bargaining agreements is not strictly followed. There is sub-
stantial testimony that the practice within the jurisdiction of
Local 230 is that contractors have hired employees as labor-
ers without referrals from the hiring hall on occasion, though
they have utilized the hall for the bulk of the new hires.
Anthony Pelosi, general manager of Waterbury Foundation
Company, a ‘‘me-too’’ contractor, testified that his labor
foreman had hired new employees without referral from the
hall and that Local 230 never complained about the practice.
Pelosi testified that if the new hire is not already a member
of Local 230, the employer refers the employee to the stew-
ard or the Union. Lopreato testified that such notification is
required to insure compliance with the benefit fund contribu-
tion requirements. Pelosi also testified that the normal prac-
tice of the Company is when it begins a job within the juris-
diction of Local 230, it would make a preliminary call to the
Local letting it know that they have a specific job starting
on a certain date and would be needing men. When the work
was to commence, the Company would come in with a cer-
tain number of its own men and the balance that it would
need would come from the hall.
James McCarthy, vice president of American Plasterers’
Company testified that his Company is a member of the
AGC and although the company ordinarily uses the hiring
hall within the territorial jurisdiction of the job to obtain new
laborers, the contractor has hired laborers off the street with-
out objection or protest by Local 230. In those cases, the
worker is generally hired into a nonlabor position and, after
a short period of time, is sent to the union hall to obtain his
book and report back to work as a laborer.
Kenneth Grimm, president of Davis Acoustical Company,
testified that his firm is signatory to the general president
agreement which contains the same hiring hall, referral,
fringe benefits, and union-security provisions as do the CCIA
and AGC agreements. According to Grimm, his Company
has hired laborers off the street without prior approval or ob-
jection from Local 230, although the contractor calls after
such laborers are hired to notify and insure compliance with
union-security and other contractual provisions. Grimm
named approximately four such laborers hired in this fashion.
Hampton Watson Jr., president of Watson & Son, testified
that his Company is a ‘‘me-too’’ signatory to the AGC
agreement and has hired some laborers without referral from
the hall, naming five such employees.
Seifim Moteirro, superintendent for Ceco, testified that it
was his Company’s practice to call the union hall when new
laborers were needed.
On cross-examination, however, Motiero, recalled occa-
sions when laborers had been hired directly off the street. On
redirect, Moteiro acknowledged that this testimony was con-
trary to an affidavit earlier provided to the NLRB. In the af-
fidavit, he said that he did not hire any laborers off the street
and that he could not do so under the terms of his Com-
pany’s collective-bargaining agreement with the Union.
Moteirro testified that he realized that his affidavit was
wrong after Lopreato paid a visit to him and advised him
about the mistake he had made. As noted earlier, I do not
consider this witness credible.
Raymond Kessler, assistant secretary of Kessler Construc-
tion Company a member of both the CCIA and AGC, testi-
fied his Company has hired laborers directly without referral
from the hall and without objection from Local 230. As ex-
amples, Kessler identified two laborers so hired both of
whom were referred by friends. Respondent Union called
several other contractors who testified in similar fashion to
those whose testimony is set out above. Each of these con-
tractors testified that they had hired from one to approxi-
496 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
mately five employees within their memory without using
the Local’s hiring hall for a referral. The Union also offered
as an offer of proof to put on the testimony of a substantial
number of other contractors who would testify similarly.
The General Counsel urges that many laborers hired in the
manner set out above are either friends or relatives of the in-
cumbent employees, noting that the Board has held that di-
rect hiring of such employees by an employer does not pre-
clude a finding that a union’s hiring hall is exclusive. The
Respondent Union points out that the fact that some of the
laborers hired without referral from the hall had been sent to
the contractor by friends or relatives of current employees or
management personnel does not establish that such direct
hires without referral from hall had been limited to these spe-
cial cases or that the contractors were obliged to use the hall
as an exclusive source of laborers except in these limited cir-
cumstances.
I believe that the evidence in this record shows that the
Union is contractually, at least, the first source if not the sole
source to which a contractor must look for the hiring of new
laborers if it is a signatory to a AGC or CCIA agreements
or a ‘‘me-too’’ participant in such agreements within the
State of Connecticut. This is true within the jurisdiction of
Local 230. The fact that Local 230 has not objected to the
obviously limited practice of contractors directly hiring em-
ployees without referrals from the Local hiring hall does not,
in my opinion, reduce the Local Union’s power to force the
contractors to use its hall exclusively. That the Union has the
power to require approval by it of new hires within its juris-
diction is most vividly shown in this record in the case of
Gary Wall. Reference to an earlier portion of this decision
will show Wall was removed from his job as steward on the
DCI Northeast Plaza jobsite for hiring on two members of
Local 230 without getting prior approval of the Local’s hir-
ing hall. In that case, not only was Wall removed ostensibly
for hiring the two men without prior approval, the two men
were also immediately removed from the jobsite. Pezzenti di-
rectly testified that one of the reasons he and Lopreato vis-
ited the Northeast Plaza jobsite the day Wall was removed
as steward had to deal with the fact that the Union was the
principle source of laborers for the job, inferring that they
were there to enforce an exclusive hiring hall provision.
Therefore, I find the Union has a contractual right to operate
an exclusive hiring hall and when it chooses to enforce those
contractual provisions, I find that Local 230 does in fact op-
erate an exclusive hiring hall.
The Union admits that it has no written hiring hall rules,
and I believe that the evidence in this case amply dem-
onstrates that job referrals are often made based on a number
of considerations other than the first-in first-out method of
referral testified to by DelGaizo. The most glaring example
of variation from this practice is the treatment given to
Cooksey Jr., Cooksey Sr., DelGaizo, and to a lesser extent
Wall. As noted by the General Counsel, in DiLoreto’s case,
the first-in first-out rule was not even cited by President
LaConche in explaining why DiLoreto was not given the
June 30 referral for which he had volunteered. Instead,
LaConche indicated a policy whereby time out of work must
be considered in determining who would be referred to a par-
ticular job. Cooksey Sr.’s testimony indicated the time out of
work was not a consideration in his case as there were sev-
eral individuals who were referred to work on two or more
occasions before his own referrals. Another example is
Cooksey Sr.’s testimony that Lopreato arranged for him to
be referred to work in December 1986 after he protestd his
treatment at the Wyllis Street hall. Therefore, based on these
finding, I find that the Respondent Union has violated Sec-
tion 8(b)(1)(A) and (2) of the Act by failing to operate its
exclusive hiring hall in an objective, consistent fashion, as
demonstrated by its discriminatory treatment of Cooksey Sr.,
Cooksey Jr., and DelGaizo.
Summary of Conclusions
Based on the evidence of record and on an applicable
Board law, I ultimately find and conclude that Respondent
Union has violated Section 8(b)(1)(A) and (2) of the Act by
operating an exclusive hiring hall without objective criteria
or standards for referral and by failing and refusing to refer
Gary Wall, William Cooksey Jr., Joseph A. DiLoreto, and
William Cooksey Sr. to employment with employer-members
of the Labor Relations Division of the Associated General
Contractors of Connecticut, Inc., and employer-members of
the Connecticut Construction Industry Association, Inc. I fur-
ther find that Respondent Union violated Section 8(b)(2) of
the Act by attempting to cause the termination of Gary Wall
by Respondent DCI from the DCI Northeast Plaza jobsite
and by causing Respondent DCI to refuse to recall Wall from
layoff at the Northeast Plaza jobsite. I find that Respondent
DCI violated Section 8(a)(1) and (3) of the Act by failing
and refusing to recall Gary Wall from layoff at its Northeast
Plaza jobsite because of pressure from the Respondent
Union.
CONCLUSIONS OF LAW
1. Respondents Development Consultants, Inc., the Ceco
Corporation, the Labor Relations Division of the Associated
General Contractors of Connecticut, Inc., and the Connecticut
Construction Industry Association, Inc. are employers en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. Respondent Union is a labor organization within the
meaning of Section 2(5) and (7) of the Act.
3. By operating its exclusive hiring hall without objective
criteria or standards for referral and by failing and refusing
to refer Gary Wall, William Cooksey Jr., Joseph A.
DiLoreto, and William Cooksey Sr. to employment with em-
ployer-members of Labor Relations Division of the Associ-
ated General Contractors of Connecticut, Inc., and employer-
members of the Connecticut Construction Industry Associa-
tion, Inc., Respondent Union violated Section 8(b)(1)(A) and
(2) of the Act.
4. Respondent Union by attempting to cause the termi-
nation of Gary Wall by Respondent Development Consult-
ants, Inc. and the Northeast Plaza jobsite and by causing Re-
spondent Development Consultants, Inc. to refuse to recall
Wall for employment after layoff at the Northeast Plaza job-
site has violated Section 8(b)(2) of the Act.
5. Respondent Development Consultants, Inc., by failing
and refusing to recall Gary Wall for employment after layoff
at the Northeast Plaza jobsite at the request of the Respond-
ent Union, has violated Section 8(a)(1) and (3) of the Act.
497DEVELOPMENT CONSULTANTS
REMEDY
Having found that the Respondents engaged in unfair labor
practices, I recommend that they be directed to cease and de-
sist from such practices and take certain affirmative action to
effectuate the policies of the Act.
I have found that Respondent Laborers’ Local Union No.
230 violated Section 8(b)(2) of the Act by attempting to
cause the termination of Gary Wall by Respondent DCI and
by causing Respondent DCI to refuse to recall Wall from
layoff for employment at the Northeast Plaza jobsite, and
further that Respondent DCI violated Section 8(a)(1) and (3)
of the Act, by failing and refusing to recall Gary Wall from
layoff at its Northeast Plaza jobsite pursuant to the unlawful
request of the Union, I recommend that Gary Wall be made
whole for any loss of earnings suffered as a result of the dis-
crimination against him by payment of a sum equal to that
which he would normally would have earned from the date
of refusal to recall to the date that his position would have
terminated due to completion of work by the crew of which
he was a part, with interest, less net earnings during such pe-
riod. Backpay shall be computed in the manner prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
computed as described in Florida Steel Corp., 231 NLRB
651 (1977), and for periods after January 1, 1987, as pre-
scribed in New Horizons for the Retarded, 283 NLRB 1173
(1987). I further order that Respondent DCI and Respondent
Laborers’ Local Union No. 230 are jointly and separately lia-
ble for the backpay due Gary Wall. As the Northeast Plaza
project has been completed, reinstatement is not possible.
As I have found that Respondent Local 230 unlawfully de-
nied referral to William Cooksey Sr., William Cooksey Jr.,
Gary Wall, and Joseph DiLoreto in violation of Section
8(b)(1)(A) and (2) of the Act, it is recommended that they
be made whole for any loss of earnings suffered as a result
of discrimination against them by payment to them of a sum
equal to that which they would normally have earned as
wages from the date of discrimination against them until
such time the Respondent Union has properly referred them
for employment, less net earnings during such period. Back-
pay and interest are to be computed as set forth above.
It is further recommended that Respondent Local 230 be
ordered to maintain and operate its exclusive job referral sys-
tem in a nondiscriminatory fashion based on published, ob-
jective criteria or standards, and that recordkeeping be initi-
ated which will ensure compliance with such criteria or
standards. Such records must be adequate to fully disclose
the basis on which referral is made, and sufficiently acces-
sible to enable applicants to ascertain that their hiring rights
are protected and that referrals are made in a fair and impar-
tial manner.
[Recommended Order omitted from publication.]