Gino Ianni Construction Co., Inc.

National Labor Relations Board - Board Decisions

May 11, 1960

127 N.L.R.B. 721 (N.L.R.B. 1960)

GINO IANNI CONSTRUCTION CO., INC. 721
coerced and is interfering with , restraining , and coercing its employees in the exercise
of the rights guaranteed by Section 7 of the Act and thereby it engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
8. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Gino Ianni Construction Co., Inc. and Hi Varney
Gino Ianni Construction Co., Inc. and William Varney. Cases
Nos. 7-CA-1971 and 7-CA-1972. May 11, 1960
DECISION AND ORDER
On June 10, 1959, Trial Examiner Thomas S. Wilson issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the alleged unfair labor practices and
recommending that the complaint herein be dismissed, as set forth in
the copy of the Intermediate Report attached hereto. Thereafter, the
General Counsel filed exceptions to the Intermediate Report and a
supporting brief.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, to the extent consistent with the
footnote below.'
[The Board dismissed the complaint.]
i The General Counsel excepted to the failure of the Trial Examiner to reopen the
record to allow the introduction of evidence bearing upon commerce and certain issues on
the merits The General Counsel had prior to the hearing subpenaed all the Respondent's
payroll and commerce records , but it was discovered at the hearing that the Respondent
had failed to produce sufficient information for the parties to agree to a stipulation on
commerce . However , it was agreed by all the parties that counsel for the Respondent
would make available after the hearing the necessary records and attempt to arrive at a
stipulation with the General Counsel for the purpose of jurisdiction With this under-
standing, hearing on the merits of the case proceeded . It was apparently also agreed by
the parties that the General Counsel should have an opportunity to examine the Respond-
ent's "time book" in order to determine if it had any bearing upon certain testimony of
the Respondent given at the hearing. The Trial Examiner in closing the hearing on
March 25 , 1959 , referred to the agreements of counsel by stating that it was his under-
standing that the case was complete except for the parties "getting together on a stipula-
tion on the jurisdictional facts, and except for a look at the time book " The Trial
Examiner also granted the parties 30 days from the date they arrived at a stipulation on
commerce to file briefs On May 29 , 1959, counsel for the Respondent notified the Trial
Examiner he was unable to comply with the agreement reached at the hearing , and there-
fore requested permission to withdraw from the case In view thereof, on June 1, 1959,
the General Counsel requested the Trial Examiner to reopen the hearing On June 10,
1959 , the Trial Examiner issued his Intermediate Report finding Board jurisdiction on the
basis of Tropicana Products , Inc, 122 NLRB 121, but upon considering the merits recom-
127 NLRB No. 91.
550940-61-vol 127-47
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges duly filed on June 12 and 16 , 1958, by Hi Varney and William
Varney, individuals , respectively , the General Counsel of the National Labor Rela-
tions Board, herein called respectively the General Counsel 1 and the Board, by the
Regional Director for the Seventh Region (Detroit, Michigan ), issued its complaint
dated November 26, 1958, against Gino Ianni Construction Co., Inc., hereinafter
referred to as the Respondent ,2 alleging that the Respondent had engaged in and was
engaging in unfair labor practices affecting commerce within the meaning of Section
8(a)(1) and ( 3) and Section 2 ( 6) and ( 7) of the Labor Management Relations
Act, 1947, 61 Stat. 136, herein called the Act. Copies of the charges and the com-
plaint, together with notice of hearing thereon, were duly served upon the Respondent.
The Respondent duly filed its answer admitting certain allegations to the complaint
but denying the commission of any unfair labor practices.
Pursuant to notice a hearing was held at Detroit, Michigan , on March 25, 1959,
before the duly designated Trial Examiner . All parties appeared at the hearing,
were represented by counsel or representative , and were afforded full opportunity
to be heard , to produce , examine, and cross-examine witnesses , to introduce evidence
material and pursuant to the issues , and were advised as to their right to argue
orally upon the record and to file briefs and proposed findings and conclusions or
both. Oral argument was waived and no briefs have been received.
Upon the entire record in the case, and from my observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
At the hearing it was agreed by all parties that a stipulation of fact regarding the
commerce data of Respondent would be submitted to the Trial Examiner. It now
-appears from a letter received from Attorney Palumbo and confirmed in another
letter from General Counsel that his client has prevented him from reducing such
stipulation to writing . In accordance with recent cases 3 of the Board holding that
where Respondent has refused or prevented the introduction of evidence regarding
its commerce data, the Board will presume , in the absence of such information, that
the Respondent is engaged in commerce , the Trial Examiner will accept the allega-
tions of the complaint as being true and makes the following findings therefrom: -
Gino Ianni Construction Co., Inc., is now and at all times herein mentioned was
a corporation organized and existing under the laws of the State of Michigan with
its principal offices located in Detroit, Michigan , and is engaged in waterline and
sewer construction in the State of Michigan . Respondent , in the usual course and
mended dismissal of the complaint in its entirety The Intermediate Report issued
9 days after the General Counsel 's request to reopen the record , and, as asserted by the
General Counsel , before he had an opportunity to file a brief In light of these develop-
ments , the Board , on November 17, 1959 , issued notice to show cause why the proceeding
should not be remanded for further hearing . Upon failure of compliance with the terms
of the notice , the Board , on December 7, 1959 , issued an order remanding the proceeding
to the Regional Director for further hearing On February 26, 1960, the General Counsel
filed request to withdraw charge and to dismiss complaint , accompanied by forms of
withdrawal request signed by the complainants herein The General Counsel stated as
his reason for his request to withdraw that he had inspected the records and documents
of the Respondent and found that they would not affect the evidence already admitted in
the record The Board, having duly considered all of the foregoing , hereby denies the
request to withdraw charge and dismiss complaint In applying the rule in Tropicana,
supra, the Trial Examiner improperly relied on certain commerce allegations in the com-
plaint to establish the necessary "legal jurisdiction " of the Board , notwithstanding that
these allegations were denied in the Respondent ' s answer Since it now appears that the
posthearing developments have not produced further jurisdictional facts sufficient to vest
"legal jurisdiction" in the Board, we find the General Counsel has failed to establish
Board jurisdiction in this case
1 This term specifically includes the attorney appearing for the General Counsel at
the hearing
2 By letter dated May 29, 1959 , and admitted hereby in evidence as Trial Examiner's
Exhibit No 1, John Palumbo , appearing for the Respondent , requested from the Trial
Examiner the right to withdraw from this case This request is hereby granted.
3 Tropicana Products , Inc., 122 NLRB 121.
GINO IANNI CONSTRUCTION CO., INC. 723
conduct of its aforementioned business operations, causes and has continuously
caused over a long period of time, including the period covered by this hearing, sub-
stantial quantities of raw materials, machinery, and equipment to be purchased,
transported, and delivered in interstate commerce from points outside of the State
of Michigan to its operations in Michigan.
Respondent, m the course and conduct of its business during the year 1957, pur-
chased material, machinery, and equipment valued in excess of $75,000 which was
shipped to it in Michigan directly from points outside of the State of Michigan.
Likewise the Respondent during the same period purchased material, machinery,
and equipment valued in excess of $50,000 from suppliers in Michigan who, in turn,
had purchased and received said material, machinery, and equipment directly from
points outside of Michigan.
Accordingly, the Trial Examiner finds that the Respondent is now engaged in
commerce within the meaning of the Act?
it. THE LABOR ORGANIZATION INVOLVED
International Hodcarriers , Building and Common Laborers Union of America,
AFL-CIO, Local 1098, herein called the Union , is a labor organization admitting
to membership employees of the Respondent.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The facts
About the middle of April 1958, the Respondent hired William and Hi Varney,
brothers, as unskilled laborers on a sewer job which it had in Thomas Township,
Michigan. This particular job was to lay about 22 miles of sewer pipe. The job
which the Varneys performed was to lower sewer pipe into an already dug trench
and, after helping to connect up the pipe, partially to cover the same.
On May 14,5 Lee Bergeron, the Union's assistant business agent and financial
secretary, happened on to Respondent's jobsite where he asked Gino lanni if he
were running the job and if he would sign a union contract lanni informed
Bergeron that he was union in Detroit. Bergerson told lanni to sign a union contract
"or else," even though at that time there was not a single member of his union
working on the job The whole crew consisted of about eight or nine men and
Ianni. lanni executed the contract handed to him and received a card stating
the Union's wage rates but was given no copy of the contract he had executed.
Ianni asked for a week's time in which to weed out incompetent employees. With
that Bergeron departed.
On May 21, Bergeron returned to the jobsite where he collected a $10 cash pay-
ment and a $50 check from lanni as part payment of the initiation fees for the six
men then employed on the project. Bergeron collected nothing from the employees,
neither signed authorization cards nor money.
According to Bergeron, lanni at this time expressed satisfaction with the employees
he then had including the Varneys.
On May 29, Bergeron collected another check for $60 from lanai toward the pay-
ment of the initiation fees for the six employees.
On June 4 lanni expressed displeasure with the employees and stated that he was
no longer going to pay the initiation fees for them. On this occasion Bergeron
managed to get another $10 payment from the Varneys who "implied" to Bergeron
that they were not getting paid the full union scale by the Respondent. The other
three employees on the job apparently refused to pay any further initiation fees.
The following day, June 5, Bergeron returned to the jobsite with Business Agent
Schepf, since deceased, who complained to lanni that the employees were not being
paid the full union scale. When lanni expressed surprise, Schepf sent Bergeron to
get a pay stub from William Varney as proof of this claimed underpayment.
Schepf then, according to lanni, proceeded to berate lanni in unbusinesslike and
ungentlemanly fashion. William Varney gave Bergeron a pay stub showing a
payment of $38.20 for 20 hours' work which was then handed to lanni as proof of
the business agent's allegation Ianni promised to investigate his time book to see
that no mistake had been made. After passing a few more pleasantries, Schepf and
Bergeron left the job-never to return.
4 By letter dated June 1, 1959, and hereby admitted in evidence herein as Trial
Examiner's Exhibit No 2, the General Counsel has requested that this hearing be re-
opened because of Respondent' s refusal to submit the agreed-to stipulation In view of
the Trial Examiner's disposal of the issues herein, this request is hereby denied as no
matter involved in the stipulation would affect the ult,mate conclusions herein
6A1] dates are in the year 1958 unless otherwise specified
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereafter all the Respondent's six employees continued to work until Monday,
June 9. On that day the Varneys had gotten to the jobsite and were preparing to
go to work when Ianni appeared, handed four employees, including the Varneys,
checks in payment in full for work already performed and told the four men that
they were "all through." At the same time he laid off the four employees, lanni
put two new men to work, both of whom were union men from Detroit and ex-
perienced in sewer construction and who had worked for lanai before.
The Varneys have never been recalled.
B. Conclusions
lanai explained the layoffs of the four employees and the hiring of the two ex-
perienced sewer men from Detroit on the ground that on Thursday, June 5, the
sewer line ran into soft running sand and quicksand making it necessary for him
to operate with a smaller and more experienced crew than the crew he had had,
that over the weekend he had located the two union men in Detroit who had worked
for him before and whom he knew to have the experience necessary for the type
of ground through which the Respondent's project was to run.
There was no contradiction, or attempted contradiction, of this testimony.
The Trial Examiner has had difficulty in seeing any discrimination in hire or
tenure of employment in order to encourage or discourage union membership or
activities in this case in view of the peculiar "union" setup described by Bergeron.
Here there were no union memberships or activities. At the very most any so-
called union memberships were coerced jointly by the so-called Union and Respond-
ent and any such activities were for the convenience of the same two parties. The
alleged labor agreement was illegal as at the time of its execution the Union did
not represent an employee on the job.
However, irrespective of whatever motives Respondent may have had for entering
into this "sweetheart" arrangement, its having done so certainly indicates no animus
against the unionization of its employees.
The General Counsel has, therefore, failed to sustain his burden of proof.
Under the facts presented here the Trial Examiner cannot find that Respondent
discharged William or Hi Varney on July 9, 1958, because of any union membership
or activity on their part or in order to encourage or discourage union membership
or activity.
Accordingly, the Trial Examiner will recommend that the complaint be dismissed
in its entirety.
Based upon the above findings of fact, and upon the entire record, the Trial
Examiner makes the following:
CONCLUSIONS OF LAW
1. International Hodcarriers, Building and Common Laborers Union of America,
AFL-CIO, Local 1098, is a labor organization within the meaning of Section 2(3)
of the Act.
2. By discharging William and Hi Varney on June 9, 1958, the Respondent did
not interfere with, restrain, or coerce its employees in the rights guaranteed them
in Section 7 of the Act in violation of Section 8(a) (1).
3. By discharging William and Hi Varney on June 9, 1958, the Respondent did
not discriminate in regard to their hire or tenure of employment in order to encourage
or discourage union membership or activities in violation of Section 8(a)(3) of
the Act.
[Recommendations omitted from publication.]
General Electric Company and International Union of Electri-
cal, Radio & Machine Workers, AFL-CIO, Petitioner. Case
No. 1-RC-2343. May 11, 1960
SECOND SUPPLEMENTAL DECISION AND ORDER
On November 16, 1951, after an election conducted pursuant to a
Decision and Direction of Election,' the Board issued a Supplemental
1'Unpublished.
127 NLRB No. 87.