Hoisting and Portable Engineers, Local 4, Etc.

National Labor Relations Board - Board Decisions

Jan 23, 1963

140 N.L.R.B. 785 (N.L.R.B. 1963)

HOISTING AND PORTABLE ENGINEERS, LOCAL 4, ETC. 785
us concerning grievances, labor disputes, wages, rates of pay, hours of em-
ployment, or other terms or conditions of employment.
WE WILL make whole Manuel Escajeda, Rual Dean Ellis, Carl Dean Shelton,
and Juan Patino for any loss of pay they may have suffered by reason of the
discrimination practiced against them.
WE WILL bargain, upon request, with Freight, Construction, General Drivers
and Helpers, Local 287, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the exclusive representative of all
our employees in the bargaining unit described as appropriate in the Trial
Examiner's Intermediate Report on the case, with respect to rates of pay, wages,
hours of employment, and other conditions of employment, and embody in a
signed agreement any understanding reached.
All our employees are free to become, remain, or refrain from becoming or
remaining, members of any labor organization, except to the extent that this right
may be affected by a lawful agreement requiring membership in a labor organization
as a condition of employment.
SAKRETE OF NORTHERN CALIFORNIA, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify any of the above-named employees presently serving
in the Armed Forces of the United States of their right to full reinstatement upon
application in accordance with the Selective Service Act after discharge from the
Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 830 Market
Street, San Francisco 2, California, Telephone No Yukon 6-3500. Extension 3191,
if they have any question concerning this notice or compliance with its provisions.
Hoisting and Portable Engineers , Local 4, International Union
of Operating Engineers , AFL-CIO and its Business Agent, Al
Morrell and John Aliberti , d/b/a Standard Contracting Co.
Case No. 1-CB-767. January 23, 196.3
DECISION AND ORDER
On November 2, 1962, Trial Examiner Alba B. Martin issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermediate
Report. Thereafter, the Respondents filed exceptions to the Inter-
mediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report and the entire record in the case, including the exceptions
140 NLRB No. 76.
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and brief, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
The Board adopts as its Order the Recommendations of the Trial
Examiner.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, with all parties represented, was heard before Trial Examiner
Alba B. Martin in Portsmouth, New Hampshire, on September 17, 1962, on com-
plaint of the General Counsel and answer of the Respondents herein, Respondent
Hoisting and Portable Engineers, Local 4, International Union of Operating Engi-
neers, AFL-CIO, and Respondent Al Morrell, Business Agent The issue litigated
was whether Respondents violated Section 8(b)(2) and (1)(A) of the Act by at-
tempting to cause the employer of Joseph Capone to discriminate against Capone
because of his nonmembership in Respondent Local 4. Respondents and the
General Counsel filed briefs which have been carefully considered.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
At all times material herein John Aliberti has been and is a private individual
doing business under the trade name and style of Standard Contracting Co., main-
taining his principal office and place of business in Malden, Massachusetts. He is
a masonry and brick contractor. Annually he purchases brick, tile, cement, block
cement, and other material from outside Massachusetts in the value of about
$125,000. The value of his services performed outside of Massachusetts amounts to
about $200,000, of which services in the value of about $80,000 were performed in
1962, in building an addition to the Polaris Navigation and Fire Control System
overhaul building at the Portsmouth, New Hampshire, Navy base, under subcontract
to the United States Navy. The overall value of that Navy job, on which the
general contractor was the Edward R Marden Company of Massachusetts, is ap-
proximately $750,000. Upon the above facts I find that at all times material herein
Aliberti has been and is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Hoisting and Portable Engineers , Local 4, International Union of Operating
Engineers , AFL-CIO, referred to herein as Respondent and as the Union, is a labor
organization within the meaning of the Act. Alcide G Morrell, one of the Respond-
ents herein , is one of Local 4's business representatives.
III. THE UNFAIR LABOR PRACTICES
Aliberti's subcontracting work at the Portsmouth , New Hampshire , project began
about the end of March 1962 His employees did the brickwork and supporting
labor on the addition to the building . Until the addition was 30 feet high the fork-
lift was used full time to lift bricks and mortar up to the bricklayers. At that point,
about a month after the beginning , a hoist was brought in by Aliberti and it was
used to make the carryups from the 30 -foot level to the 50-foot level. Some of the
bricks and cement were delivered near the hoist and it was loaded right from these
piles. In some cases when the hoist was being used, material was brought over to
it from other piles around the building by the forklift On these occasions the
forklift was used for only ^a few moments, as a rule not more than 30 minutes a day
on some days but not every day. The forklift was also used from time to time to
move things on the job from one spot to another . Joseph Capone operated the fork-
lift. and after the hoist was brought in Capone operated both the forklift and the
hoist.
HOISTING AND PORTABLE ENGINEERS, LOCAL 4, ETC. 787
Shortly after Aliberti's employees began work on that job, in early April, Re-
spondent Morrell came onto the job one day while Capone was operating the forklift
and asked Capone if he was a member of Local 4. Capone replied that he was not
but that he had applied for membership 4 or 5 years before. Morrell replied that
he would look into the matter. The record contains no further information con-
cerning Capone's application and Morrell's doing anything about it. Capone con-
tinued to operate the forklift
Shortly thereafter Morrell called the job office of the contractor but talked with
Subcontractor Aliberti, who happened to answer the telephone Morrell told
Aliberti that Capone did not belong to Local 4 and that he wanted a Local 4 man
on the forklift Morrell added that all the trades worked in unity and that if there
was not harmony between Aliberti and Local 4, the other trades would back up
Morrell.
A day or two later one Moriarity, business agent for the Laborers Union, and
a business agent for the Carpenters Union, came to the job and Moriarity -told Ali-
berti that if there was any dispute between Local 4 and Ahberti, the laborers would
back Local 4
Between then, early April, and May 21, without any interference or anything
being said, Capone continued operating the forklift, and after it arrived around the
end of April, the hoist (and also the forklift in a supporting capacity).
On May 21, as Capone was using the forklift to move something that needed
moving, Respondent Morrell approached him and told Capone, in substance, ac-
cording to the latter's undemed and credited testimony, that if Capone went on
the hoist he would never become a member of Local 4.
Also on May 21, Morrell approached on the jobsite Merrill Fiske, general super-
intendent of the prime contractor, the Edward R. Marden Corporation, and told him
that Fiske had to see that Aliberti put a Local 4 man on the hoist. Fiske replied that
he could not force Aliberti to do any such thing. Respondent Morrell replied that if
Fiske did not make Aliberti put a Local 4 man on the hoist Respondent Morrell would
do everything in his power to cause a work stoppage on the job. In substance
Fiske said that he would at least talk to Aliberti and try to convince him that he
"should try to do something." Then Fiske spoke to Aliberti who said that he would
not comply with Local 4's demand. Aliberti's reply was never transmitted to Morrell.
On the morning of Wednesday, May 23, there was a Local 4 representative present
and most, if not all, of Aliberti's employees on this job, including the laborers and
bricklayers, did not commence work when they were supposed to, although they were
present on the jobsite. In addition the employees of the prime contractor, Marden,
and of other subcontractors, did not commence work, including the laborers, carpen-
ters, electricians, sheet metal workers, pipefitters, insulation men, and pipe coverers.
These employees just stood around but did not work.
After initial inquiry of the Laborers' representative, Moriarity, who referred him
to Morrell, Marden's new superintendent on the job, Karl S. Muse,' telephoned Re-
spondent Morrell and asked him what the difficulty was, that the men were not going
to work Respondent Morrell stated that a Local 4 man should be put on the hoist
(referring to the hoist Capone had been operating) and that "if you put a Local 4
man on the job, the job will continue." During the conversation Muse asked Morrell
if Capone could continue operating the hoist if the forklift were removed. Morrell
replied in the negative.
Then Aliberti talked over the telephone with Morrell Aliberti told him that
Local 4's representative who had come to the job that morning had refused to operate
the hoist, and Aliberti then told Morrell to send a man to operate it since Aliberti
was forced to remove Capone. Morrell told either Muse or Aliberti or both that he
was sending a man to operate the hoist. Muse then informed the workmen of the
decision and all who were still around went to work. It was then about 9.30 am.
Aliberti's bricklayers and laborers had gone home. Without them presumably there
was little, if any, work for the hoist.
Then, still on May 23, Aliberti talked with a labor relations man from the Navy
and then went to the Regional Office of the Board and signed the charge herein,
which was filed and a copy sent to Respondents the following day. From then as long
as the hoist continued to be used on that job, which was until early in June, Aliberti
kept Capone as its operator The other operator sent down by Local 4 apparently
°tayed a day or so, but apparently did not operate the equipment. Aliberti paid
Capone for the time he lost during the work stoppage.
I This man's name is hereby corrected in the record to read as above The transcript
orroneonsly referred to him as Carl Mulse
681-492-63-vol. 140 51
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Without contradiction Aliberti testified in substance that if he had had to replace
Capone, the latter would have been out of a job. This was substantiated somewhat
by the fact that the hoist was a rented piece of equipment and it did not go to the
next Aliberti job to which Capone was assigned when he left the Portsmouth Job.
From the above it appears that in April when Capone was on the forklift and again
in May when Capone was on the hoist, Respondent Morrell attempted to cause
Aliberti to replace Capone with a Local 4 member, and to this end in April Morrell
implied economic action and in May he took economic action. In his telephone
conversation with Aliberti in early April, Morrell threatened Alrberti that all the
trades would act in unison if there was lack of harmony between Aliberti and Local 4,
his object then being to get a Local 4 man on the forklift. On May 21, Morrell
expressly threatened Fiske with a work stoppage unless Fiske, the contractor, made
Aliberti, the subcontractor, replace Capone with a Local 4 man on the hoist There
can be no question on the entire record that the work stoppage of May 23 was
caused by Morrell and Local 4. That Morrell was in complete charge of the situa-
tion was proven by his reply to Muse that "if you put a Local 4 man on the job, the
job will continue", and by the fact that when Muse informed the workmen that a
Local 4 man was coming down (to operate the hoist) those who were still around
returned to work
Respondent's defense was that this was a "union job" and that "union conditions"
should prevail. There was, however, no contract of any kind, oral or written, and
no union-security contract, between Aliberti and Local 4, which alone could serve
as a lawful basis for replacing Capone, a nonunion man, with a Local 4 member.
An alleged "union condition" which it was asserted should prevail on "union jobs"
was that where two pieces of equipment are in more or less constant use on a job there
should be one operator for each piece of equipment, and that Morrell was simply
seeking a second man for the second piece of equipment, the hoist. This defense falls
for several reasons In the first place there was no union-shop contract on which to
ground "union conditions." Secondly, union conditions, practices, customs, and trade
rules do not prevail over or take precedence over Federal law. Thirdly, even the facts
do not support Respondent's position. When in April, Morrell sought to put a Local 4
man on the forklift there was only one piece of equipment on the job. And in
May, when Morrell brought strong economic pressure to bear upon Aliberti the hoist
was being used most of the time and the forklift was being used for only about 30
minutes per day or every other day in a supporting capacity to the hoist and to
assist around the job. Morrell admitted that under these circumstances even under
"union conditions" one man would be apt to operate both pieces of equipment
Under all the circumstances of this case and upon the entire record considered as a
whole, I believe and find that since April 1962 Respondent has attempted to cause
Aliberti to discriminate against Joseph Capone in the tenure of his employment in
violation of Section 8(a)(3) of the Act, Respondents Local 4 and Morrell thereby
violating Section 8(b)(2) and (1)(A) of the Act. As Morrell's pressure ceased
after Aliberti filed the charge herein and as Capone was finally not displaced, and
as Aliberti paid Capone for the time he lost during the short work stoppage, this
case involves no problem of reinstatement or backpay.
IV. TIIE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section Ill, above, occurring in con-
nection with the operations of John Aliberti described in section 1, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in the unfair labor practices
set forth above, I recommend that they cease and desist therefrom and that they take
certain affirmative action designed to effectuate the policies of the Act
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following-
CONCLUSIONS OF LAW
I John Aliberti, d/b/a Standard Contracting Co., is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act
2. Hoisting and Portable Engineers, Local 4, International Union of Operating
Engineers, AFL-CIO, is a labor organization within the meaning of the Act. Alcide
G. Morrell is one of its business representatives.
HOISTING AND PORTABLE ENGINEERS , LOCAL 4, ETC. 789
3 By attempting to cause the discharge of Joseph Capone during April and May
1962, Respondents Local 4 and Morrell have engaged in and are engaging in unfair
labor practices within the meaning of Section 8(b)(1)(A ) and (2 ) of the Act
4. The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 ( 6) and ( 7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in the case, I recommend that the Respondent , Hoisting and
Portable Engineers , Local 4, International Union of Operating Engineers , AFL-CIO,
its officers , agents, representatives , successors , and assigns , and Alcide G. Morrell,
shall
1. Cease and desist from:
( a) Attempting to cause John Aliberti, d/b/a Standard Contracting Co , to
discriminate against Joseph Capone, or any other employee, because of nonmember-
ship in said Union , except as authorized by Section 8(a) (3) of the Act.
(b) In any like or related manner, restraining or coercing employees in the exer-
cise of their rights under Section 7 of the Act, except to the extent that such rights
may be validly affected by an agreement entered into in accordance with Section
8(a)(3) of the Act requiring membership in a labor organization as a condition of
employment , as authorized by said section.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Notify John Aliberti, d/b/a Standard Contracting Co., that it has no objec-
tion to Aliberti' s continued employment of Joseph Capone
(b) Post in its office and meeting hall, copies of the attached notice marked
"Appendix " 2 Copies of such notice , to be furnished by the Regional Director for
the First Region ( Boston, Massachusetts ), shall, after being duly signed by Re-
spondent Local 4's representative , and by Respondent Morrell , be posted immediately
upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to members of Local 4 are
customarily posted . Reasonable steps shall be taken by Respondent Local 4 and by
Morrell to insure that such notices are not altered , defaced , or covered by any other
material.
(c) Notify the Regional Director for the First Region , in writing , within 20
days from the date of this Intermediate Report, what steps Respondents have taken
to comply herewith.3
2In the event that these Recommendations be adopted by the Board , the words "A De-
cision and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" in the notice In the further event that the Board ' s Order be enforced by a
decree of a United States Court of Appeals , the word, "I'ursnant to a Decree of the
United States Court of Appeals, Enforcing an Order " shall be substituted for the words
"Pursuant to a Decision and Order "
3 In the event that these Recommendations be adopted by the Board , this provision
,hall he modified to read. "Notify said Regional Director , In writing , within 10 days
from the date of this Order, what steps the Respondents have taken to comply herewith "
APPENDIX
NOTICE TO ALL MEMBERS OF HOISTING AND PORTABLE ENGINEERS , LOCAL 4,
INTERNATIONAL UNION OF OPERATING ENGINEERS , AFL-CIO
Pursuant to the recommendations of a Trial Examiner of the National Labor Re-
lations Board , and in order to effectuate the policies of the National Labor Relations
Act, as amended , we hereby notify you that:
WE WILL NOT attempt to cause John Aliberti, d/ b/a Standard Contracting Co.,
to discharge or otherwise discriminate against Joseph Capone , or any other
employee , because he is not a member of our Union, except as authorized under
Section 8 ( a) (3) of the National Labor Relations Act.
WE WILL NOT in like or related manner restrain or coerce any employee in
the exercise of his rights under Section 7 of the said Act, except to the extent
that such rights may be validly affected by an agreement entered into in ac-
cordance with Section 8(a)(3) of the Act, requiring membership in a labor
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organization as a condition of employment, as authorized and only as authorized
by said section.
HOISTING AND PORTABLE ENGINEERS,
LOCAL 4, INTERNATIONAL UNION OF
OPERATING ENGINEERS , AFL-CIO,
Labor Organization.
Dated------------------- By--------------------------------------------
(Representative) (Title)
Dated------------------- By--------------------------------------------
(ALCIDE G. MORRELL, Business Representative)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Union members or others may communicate directly with the Board's Regional
Office, 24 School Street, Boston, Massachusetts, Telephone No. Lafayette 3-8100,
if they have any question concerning this notice or compliance with its provisions.
Vitro Laboratories, Division of Vitro Corporation of America
and International Brotherhood of Electrical Workers, AFL-
CIO. Case No. 12-CA-2210. January 23, 1963
DECISION AND ORDER
On August 21, 1962, Trial Examiner William F. Scharnikow issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the attached Intermediate Report.
Thereafter, the General Counsel and the Respondent filed exceptions
to the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Members Leedom, Fanning, and Brown].
The Board has reviewed the rulings 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, and
adopts the findings,' conclusions, and recommendations of the Trial
Examiner.
[The Board dismissed the complaint.]
1 The General Counsel requested the Board to overrule the Trial Examiner 's credibility
findings. However, it is established Board policy not to overrule a Trial Examiner's
credibility findings unless they are clearly erroneous . Such a conclusion is not warranted
here . Standard Dry Wall Products , Inc., 91 NLRB 544, enfd . 188 F. 2d 362 (C.A. 3).
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The complaint in the present case was issued on January 5, 1962, on the basis of
charges and amended charges which had been filed by the International Brotherhood
of Electrical Workers, AFL-CIO, herein called the IBEW, on November 27, 1961,
140 NLRB No. 72.