Local 190, Laborers' International Union

National Labor Relations Board - Board Decisions

Sep 26, 1967

167 N.L.R.B. 561 (N.L.R.B. 1967)

LOCAL 190, LABORERS'
Local 190, Laborers ' International Union of North
America, AFL-CIO and Its Agent Charles Mira-
bile and Leon Van Dyke
Basic Construction Co. and Leon Van Dyke
Smith & Tierney, Inc. and Leon Van Dyke
Planet Construction Corp . and Leon Van Dyke
Local - 190, Laborers ' International Union of North
America , AFL-CIO and Its Agent Charles Mira-
bile and Edward G. Jackson
Local 190, Laborers' International Union of North
America , AFL-CIO and Its Agent Charles Mira-
bile (MSI Corporation) and Wallace Brown and
MSI Corporation
Local 190 , Laborers ' International Union of North
America , AFL-CIO and Its Agent Charles Mira-
bile and Samuel McDowell
Callanan Road Improvement Co. and Samuel
McDowell.' Cases 3-CB-930, 3-CA-2978,
3-CA-2979, 3-CA-2986, 3-CB-949,
3-CB-952, 3-CB-958, and3-CA-3001
September 26, 1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS , AND ZAGORIA
On May 22, 1967, Trial Examiner John G. Gregg
issued his Decision in the above-entitled
proceedings, finding that the Respondent had not
engaged in unfair labor practices as alleged in the
complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
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
Trial Examiner's Decision, the exceptions and
brief, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
INTERNATIONAL UNION 561
Relations Board hereby orders that the complaint
herein be , and it hereby is, dismissed.
The caption has been modified to correctly reflect those cases of the
consolidated complaint remaining for disposition at the conclusion of the
hearing
2 In agreement with the Trial Examiner, we find that the General Coun-
sel has failed to sustain his burden of proof with respect to the unfair labor
practice allegations of the complaint Accordingly, we shall dismiss the
complaint in its entirety
TRIAL EXAMINER'S DECISION'
JOHN G. GREGG, Trial Examiner: These consolidated
proceedings, brought under Section 10(b) of the National
Labor Relations Act, as amended, were heard pursuant
to due notice at Albany, New York, on December 5, 6,
and 7 1966, and January 9. 10, 11, and 12, 1967.
The consolidated complaints allege violations by the
Respondent Employers of Section 8(a)(1) and (3) of the
Act and by the Respondent Union of Section 8(b)(1)(A)
and (2) of the Act. The Respondents, by answers duly
filed, deny the commission of the alleged unfair labor
practices. Subsequent to the close of the hearing the
General Counsel moved to correct the transcript. The
motion is hereby granted.
The basic issues in this case are whether, as charged by
General Counsel, the Respondent Local 190 maintained
in effect and enforced with the Respondent Companies an
agreement, practice, arrangement, and understanding
requiring the Respondent Companies to hire laborer em-
ployees at their jobsites exclusively through referral,
clearance, or approval by the Respondent Local 190;
whether the Respondent Local 190 in the exercise of said
alleged agreement, practice, arrangement, and un-
derstanding discriminatorily refused and continues to
refuse to clear, refer, or approve laborer applicants for
employment with the Respondent Companies because of
said applicants nonmembership in Respondent Local
190; and whether the Respondent Employers failed and
refused to hire said applicants for employment or laid off
said applicants because these applicants were unable to
obtain clearance, referral, or approval from the Respond-
ent Local 190. Also for consideration is the question of
whether the Respondent Local 190 by its agent, Mirable,
restrained and coerced applicants for employment in the
exercise of rights guaranteed in Section 7 of the Act by
threatening that they would not be referred to jobs from
the union hall if they obtained jobs without being referred
or cleared by Respondent Local 190.
All parties were represented at and participated in the
hearing, were afforded the right to present evidence, to
examine and cross-examine witnesses, to offer oral argu-
ments, and to file briefs. Briefs were filed by the General
Counsel, Respondent Local 190, Respondent Smith &
Tierney, Respondent Basic Construction Co., Respond-
ent Planet Construction Corporation, Respondent Cal-
lanan Road Improvement Company, and Charging Party,
Leon Van Dyke. All briefs were carefully considered.
Upon the entire record in this consolidated proceeding
and from my observation of the witnesses, the following
findings of fact, conclusions of law, and recommendations
are made:
See fn 1, supra, of Board Decision
167 NLRB No. 74
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
existing by virtue of, the laws of the State of New York,
and at all times material herein, has maintained its prin-
cipal office and place of business at 820 Second Avenue,
New York, New York, and is, and has been at all times
material herein, engaged as a general contractor in the
building and construction industry, at said location, and
other locations, including the New York State University
jobsite, Albany, New York.
(b) Annually, Respondent Planet, in the course and
conduct of its business operations, purchases, transfers,
and delivers to its various construction sites and places of
business in New York State, goods, materials, and
services valued in excess of $50,000, are transported
to said construction sites and places of business directly
from States of the United States other than the State of
New York.
(c) Annually, Respondent Planet in the course and
conduct of its business operations, purchases, transfers,
and delivers to its various construction sites and places of
business in New York State , goods, materials, and ser-
vices valued in excess of $50,000, of which goods,
materials, and services valued in excess of $50,000 are
transported to said construction sites and places of busi-
ness from, and received from, other enterprises, located
in the State of New York, which other enterprises have
received the said goods and materials directly from States
other than New York State.
4. (a) MSI Corporation (herein called MSI), is, and
has been at all times material herein, a corporation duly
organized under, and existing by virtue of, the laws of the
State of Maryland, and at all times material herein, has
maintained its principal office and place of business at 74
Morton Avenue, Albany, New York, and is, and has been
at all times material herein, engaged as a general contrac-
tor in the building and construction industry, at said loca-
tion and other locations, including the Morton Avenue
Housing Development jobsite, Albany, New York.
(b) During the past year, MSI, in the course and con-
duct of its business operations, purchased, transferred,
and delivered to its various construction sites and places
of business in New York State, goods, materials, and ser-
vices, valued in excess of $50,000, of which goods,
materials, and services valued in excess of $50,000 were
transported to said construction sites and places of busi-
ness directly from States of the United States other than
the State of New York.
(c) During the past year, MSI, in the course and con-
duct of its business operations, purchased, transferred,
and delivered to its various construction sites and places
of business in New York State, goods, materials, and ser-
vices valued in excess of $50,000, of which goods,
materials, and services valued in excess of $50,000 were
transported to said construction sites and places of busi-
ness from and received from , other enterprises, located in
the State of New York, which other enterprises had
received the said goods and materials directly from States
other than New York State.
5. (a) Respondent Callanan Road Improvement Com-
pany is, and has been at all times material herein, a cor-
poration duly organized under, and existing by virtue of,
the laws of the State of New York, and at all times materi-
al herein, has maintained its principal office and place of
business in South Bethlehem , New York , and is, and has
been at all times material herein , engaged as a road con-
tractor in the building and construction industry, at said
location, and other locations, including the South Pearl
Street, Albany, New York, relocation jobsite.
(b) Annually, Respondent Callanan, in the course and
conduct of its business operations, purchases, transfers,
and delivers to its various construction sites and places of
business in New York State , goods, materials, and ser-
1. (a) The Respondent Basic Construction Co., is and
has been at all times material herein a corporation duly
organized under, and existing by virtue of, the laws of the
Commonwealth of Virginia, and at all times material
herein has maintained its principal offices and places of
business at 80 29th Street, Newport News, Virginia, and
at 44 Fuller Road, Albany, New York, and is, and has
been at all times material herein, engaged as a general
contractor in the building and construction industry at
said locations and other locations, including the New
York State campus jobsite.
(b) Annually Respondent Basic, in the course and con-
duct of its business operations, purchases, transfers, and
delivers to its various construction sites and places of
business in New York State, goods, materials, and ser-
vices, valued in excess of $50,000, of which goods,
materials, and services valued in excess of $50,000 are
transported to said construction sites and places of busi-
ness directly from States of the United States other than
the State of New York.
(c) Annually Respondent Basic, in the course and con-
duct of its business operations, purchases, transfers, and
delivers to its various construction sites and places of
business in New York State, goods, materials, and ser-
vices valued in excess of $50,000, of which goods,
materials, and services valued in excess of $50,000 are
transported to said construction sites and places of busi-
ness from and received from other enterprises located in
the State of New York, which other enterprises have
received the said goods and materials directly from States
other than New York State.
2. (a) Respondent Smith & Tierney is, and has been at
all times material herein, a corporation duly organized
under, and existing by virtue of, the laws of the State of
New York and, at all times material herein, has main-
tained its principal office and place of business at 142
Catherine Street, Albany, New York, and is, and has
been at all times material herein, continuously engaged as
a general contractor in the building and construction in-
dustry at said location and other locations, including the
B. Sheber and Sons Inc., Third Street, Albany, New
York, jobsite.
(b) Annually, Respondent Smith & Tierney, in the
course and conduct of its business operations, purchases,
transfers, and delivers to its various construction sites
and places of business in New York State, goods, materi-
als, and services valued in excess of $50,000, of which
goods, materials, and services valued in excess of
$50,000 are transported to said construction sites and
places of business directly from States of the United
States other than the State of New York.
(c) Annually, Respondent Smith & Tierney, in the
course and conduct of its business operations, purchases,
tranfers, and delivers to its various construction sites and
places of business in New York State, goods, materials,
and services valued in excess of $50,000, of which goods,
materials, and services valued in excess of $50,000 are
transported to said construction sites and places of busi-
ness from and received from, other enterprises, located in
the State of New York, which other enterprises have
received the said goods and materials directly from States
other than New York State.
3. (a) Respondent Planet is, and has been at all times
material herein , a corporation duly organized under, and
LOCAL 190, LABORERS' INTERNATIONAL UNION 563
vices, valued in excess of $50,000, of which goods,
materials, and services valued in excess of $50,000 are
transported to said construction sites and places of busi-
ness directly from States of the United States other than
the State of New York
(c) Annually, Respondent Callanan, in the course and
conduct of its business operations, purchases, transfers,
and delivers to its various construction sites and places of
business in New York State, goods, materials, and ser-
vices valued in excess of $50,000, of which goods,
materials, and services valued in excess of $50,000 are
transported to said construction sites and places of busi-
ness from and received from, other enterprises, located in
the State of New York, which other enterprises have
received the said goods and materials directly from States
other than New York State.
6. The Respondent Basic Construction Co., Respond-
ent Smith & Tierney Inc., Respondent Planet Construc-
tion Corp., Respondent Callanan Road Improvement
Company, and the MSI Corporation are now and have
been at all times material herein, each individually, em-
ployers engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
7. The Respondent Local 190, is, and has been at all
times material herein, a labor organization within the
meaning of Section 2(5) of the Act.
8. At all times matenal herein, Charles Mirabile occu-
pied the position of business manager with Respondent
Local 190 and has been, and is now, an agent of the
Respondent Local 190, acting on its behalf, and is an
agent within the meaning of Section 2(13) of the Act.
q . THE ALLEGED UNFAIR LABOR PRACTICES
The General Counsel alleges that the Respondent
Local 190 has maintained in effect and enforced with
each of the Respondent Companies named in the com-
plaint, since sometime around January 1966, an agree-
ment, arrangement, practice, and understanding requinng
these Respondent Employers to hire their laborer em-
ployees at certain specified and other Jobsites exclusively
through referral, clearance, or approval by the Respond-
ent Local 190, and that the Respondent Companies
refused to hire certain applicants and laid off certain em-
ployees because they were not cleared, referred, or ap-
proved by the Respondent Union.
A. The Respondent Basic Construction Co.
Leon Van Dyke testified essentially that he sought em-
ployment as a laborer from the Respondent Basic Con-
struction Company. He went out to the Basic jobsite on
State campus around the last week in May, went to the in-
formation booth about 10:30 in the morning, and spoke to
the information man, Mr. Miotke. According to Van
Dyke, Miotke came out of the booth and was advised by
Van Dyke that he, Van Dyke, was looking for a job.
Miotke responded "Don't you know you can't get a job
out here unless the Union sent you?"
Van Dyke testified further that he went out to the
jobsite of the Respondent Basic a second time about the
last part of June, and spoke again to "Mr. Dodi" and to
one "Whimpey." "Whimpey" was later identified as Con-
don, laborer steward for Basic. Van Dyke asked if any
men were needed and according to his version was told in
effect that he could not be hired unless he had a permit.
Joseph Miotke testified that he was and had been a
member of Local 190 for 45 years, was employed by
Basic Construction Company as an information man. His
job was to keep out all visitors who did not belong on the
project. He stated that if a man came to the information
booth looking for a job as a laborer he would say, "Are
you a union man?" and advise them "this is strictly 100
percent union. You must go down to the union hall and
see them down there, sign up. I didn't let you in on that."
Miotke testified that when he was hired by Basic in
1964 by Donald Smith who was in charge of site security
his instructions were as follows: "Well he told me my job
was all these delivery trucks, concrete trucks; at that time
he gave me a list of all the contractors and a map of the
State where all these buildings was, like the Education
building, and he pointed out to me where they were. And
keep all visitors out. Nobody that doesn't belong on the
job, keep out. Nobody on the job."
Q Let me ask you this: Did you inquire - did you
ever inquire from Mr. Smith what you were suppose
to do with these people who came to the jobsite look-
ing for work9 Did you ever ask Mr Smith what you
were to do?
A. No, I never asked any questions like that.
There was testimony by William Shaw, project
manager for the Respondent Basic, that Smith, the securi-
ty boss, was a supervisor who had nothing to do with per-
sonnel at all, but was in charge of site security, supervis-
ing a force of guards. Miotke was described as a handi-
capped worker, whose job was one originally of site
security. As the construction work progressed and the
finished area was being taken over by the State, Miotke
evolved from security to information man Miotke had no
authority to hire or fire nor did he have instructions as to
what to do about individuals who came on the site to seek
employment. While testimony indicates that Miotke had
been instructed to keep all visitors out and to permit on
the site only those with passes from the Respondent
Basic and referrals from the Union, it is also clear from
the record that based on the large Jobsite involved and the
fact that it was an open jobsite there were many means of
access to the office area and supervisors without going
through the information booth.
I credit Van Dyke's testimony that he inquired of
Miotke concerning employment as a laborer, and I credit
his testimony that Miotke directed him to the union hall.
Miotke does not qualify technically as a supervisor
within the meaning of the Act. However a principal may
be responsible for the act of his agent within the scope of
the agents general authority even though the principal did
not specifically authorize the act in question, or, in fact,
even if the principal expressly forbid it. Sunset Line and
Twine Company, 79 NLRB 1487.
In the case at hand Miotke's general authority was to
provide information to individuals coming on the site and
to exclude, for safety and secunty reasons, individuals
having no business or not possessing indicia permitting
them to remain and conduct their business on the site. Job
interviews, hiring, firing, or personnel actions of any kind
were clearly not within the scope of his authority. While
he was authorized to exclude individuals on the basis
mentioned he was not authorized to determine whether or
not applicants for employment were or were not members
of a union, nor to exercise judgment in dealing with them
on this basis. When labor was being recruited, Miotke,
when confronted with an individual who did not possess
310-541 0 - 70 - 37
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the necessary indicia of having business on the site,
would not exclude the individual, but as established on
this record would call the superintendent on the
telephone which was provided in his booth to request ad-
vice. As Miotke himself testified, he would call on the
telephone and say "There's a man here that says he's a
cement finisher, you want to talk to him?" Note that there
was no question of union membership or nonmembership.
Obviously Miotke was required to contact the superin-
tendent before turning away applicants for employment
unless pursuant to prior specific instructions he was ad-
vised that no hiring was in progress. Accordingly I do not
find the action of Miotke in referring Van Dyke to the
union hall to have been within the scope of his general au-
thority and find that he was not an agent of the Respond-
ent for this purpose. Miotke's referral of Van Dyke to
the union hall appears to me to be the act of an individual
suggesting to a job applicant that his chances of securing
employment would best be served by using the facilities
of the hiring hall which Miotke undoubtedly knew and
which in fact is the main source of labor supply. In any
event from the testimony of record it has not been
established that Basic in fact had a requirement for a
laborer at the time of Van Dyke's application nor that
Miotke knew of such requirement.
I find therefore that Van Dyke was not denied employ-
ment by the Respondent Basic. I need not therefore con-
sider the question raised by the Respondents herein con-
cerning the lack of bona fides in the request for employ-
ment for it would serve no useful purpose to speculate as
to whether or not Van Dyke would have accepted em-
ployment had it been offered to him.
William H. Shaw, project manager for the Respondent
Basic Construction Company testified that the two pro-
jects with the State University in Albany which he
managed for Basic, covered construction on approxi-
mately 350 acres with approximately 50 subcontractors
employed. Shaw testified that the project started in
January 1964, that at that time a prejob conference with
all the unions involved including the Respondent Local
190 was held, attended on behalf of Local 190 by Charles
Mirabile, its business agent. Shaw described the progress
of construction on the project, testifying that at the peak
of construction which came in May 1965, 290 laborers
were employed by Basic. By May 1966 this had dropped
to 197. By the time of the hearings herein the number had
fallen off to 148 with anticipation of sharp decline
thereafter.
Shaw testified essentially that not all laborers hired by
Basic had to be approved or cleared through Local 190's
union hall.
Q. Let me ask you this: Is it your understanding
and practice to hire all laborers through the union
hall?
A. It's our general pattern to do this. We come up
here and start a fifty million dollar project. We are
strangers in this area. We need - as I pointed out, we
had well over 300 laborers at the peak and we need
large numbers of skilled men and we need them in a
hurry so the logical place for us to go is to go to the
union who has this pool of labor. So I'll say yes, our
general pattern is to hire through the union.
Shaw testified further that while their general pattern was
to hire through the Union and not off the street, there
were exceptions to this. "We have hired men off the
street if for a particular reason we wanted them or they
had some skill we wanted or if it served our purposes to
hire them off the street." Shaw testified that not all
laborers had to be approved through the hall, by the
Union. Shaw stated that neither at the prejob conference
nor since was any agreement made with Mr. Mirabile to
hire laborers exclusively through Local 190, that in fact
the Respondent Basic, while hiring the majority of its
laborers through the Union had hired men without con-
sulting Mr. Mirabile or the union hall. While Shaw's
testimony appeared to be in conflict with an affidavit
which he had previously signed during the investigation
of this matter by the Board's agents, Shaw insisted that in
his statement to the Board's agent he had qualified his
statement that the Respondent's practice was to hire
through Local 190 but that these qualifications had not
been set forth in the affidavit prepared by the Board's
agent for his signature , that he had signed it without "go-
ing over it with a fine tooth comb." I found Shaw to be
straightforward in his testimony, found his statement
reasonable, and credit his explanation.
The General Counsel contends that the Respondent
Basic's assertion that from January 1 through July 15,
it hired 17 men who were not cleared or referred by
the Respondent Union is incorrect, claiming that of the
17, 8 were in fact referred by the Respondent Union. A
list extracted by the Respondent Basic from its payroll
records indicates the names of employees hired as
laborers from January 1 through July 15, 1966 Seven-
teen of these were marked to indicate they were not
cleared or referred through the Union. With respect to
this list Shaw testified as follows:
Q. I think you stated on your direct examination
that there may be other non-union laborers included
on this list other than those whom you checked?
A. There might be. Those are the names we
checked off, they are just the ones through the per-
sonal knowledge of the supervisors that we knew
weren 't union.
The General Counsel offered a list taken from union
records showing dates and names of laborers referred by
the Respondent Union purporting to establish the fact
that of the 17 claimed direct hires 8 were in fact referred
by the Union. The list contains in chronological order the
names of individuals referred by the Union, the names of
the employer to whom referred, and the date of referral.
Included on the pages are the bracketed names of in-
dividuals, union and nonunion, who were hired by the em-
ployer directly, not through referral, with later notifica-
tion to the Union that the men were working. Not in-
cluded were those individuals hired directly by the em-
loyers concerning whom no notice was given to the
Union. When read in accordance with the legend as
established through testimony, the list establishes the fact
that nonunion applicants were referred to the Charging
Parties herein and to others during the period, with at
least eight and perhaps more hired directly and without
recourse to the Union. It must also be taken into account
that this is not all inclusive, it being clear from the
testimony that this does not take into account those direct
hires concerning whom the Union was later advised. It is
also evident from this list, offered by the General Coun-
sel, that there were other instances of the direct hire of
both union and nonunion men, without referral by the
Union, such as that indicated in the hire of nonunion
laborer Robert Dickerson on May 31, 1966.
LOCAL 190, LABORERS ' INTERNATIONAL UNION 565
I am not persuaded, as the General Counsel contends,
that the eight or more direct hires were rare exceptions to
the Respondent Basic's alleged agreement, practice, ar-
rangement, and understanding of exclusive hire with the
Respondent Union. I am convinced from the testimony
of record and infer that there were many more incidents
of direct hire concerning which no record was
established, but in any event I am convinced and I find
from ample credible testimony of record that such direct
hires as have been established as being without recourse
to the Union were clearly more than a rare exception, were
not unusual, and were accomplished by the Respondent
Basic openly and without objection by the Respondent
Union.
Ray Goodman, field superintendent in charge of exteri-
or work for the Respondent Basic on the University pro-
ject testified that he was responsible for hiring and firing
men at the project. He testified that there was no agree-
ment, practice, arrangement, or understanding with
Respondent Local 190 requiring Basic to hire laborers
exclusively through Local 190, that the usual practice in
hiring laborers was to ascertain from the approximately
50 foremen in the field what the labor needs were. Good-
man would then call the hall. Goodman testified and I
credit his testimony that he had directly hired several per-
sons off the street without checking with anyone, that
when he hired in this fashion he did not question whether
the worker was union or nonunion, that he had hired
nonunion men without clearing with the union hall. He
testified further that Mirabile, the union business agent,
was on the project site often, saw these nonunion men
working on the job, had no complaint, never requested
that a nonunion man be laid off, nor that a nonunion man
not be hired. Goodman testified that he had hired 17
nonunion men without recourse to the hall. In further
testimony it was indicated by Goodman that Basic had
hired the sons of doctors and company employees
without knowing whether or not they were union mem-
bers and without recourse to the union hall.
In view of the testimony herein and based on my obser-
vation of the witnesses as they testified and my crediting
of the testimony of Shaw and Goodman as indicated, I
find that the Respondent Local 190 has not maintained in
effect and enforced with the Respondent Basic since
sometime around January 1, 1966, an agreement, prac-
tice, arrangement, and understanding requiring said
Respondent to hire its laborers exclusively through refer-
ral, clearance, or approval by the Respondent Local 190.
B. The Respondent Smith & Tierney, Inc.
Turning to the Respondent Smith & Tierney, Inc., and
the question of whether it maintained in effect with the
Respondent Union an agreement, practice, arrangement,
and understanding requiring laborer applicants for em-
ployment to secure clearance, referral, or approval exclu-
sively from the Respondent Union, the testimony in-
dicates that, around the last week in May, Charging Party
Van Dyke made application for employment with the
Respondent Smith & Tierney at its jobsite located across
the street from the Albany Labor Temple where the
Respondent Union's office and hiring hall was located.
According to Van Dyke, he was told by DeAngelis,
whom he thought was a foreman for the Respondent
Smith & Tierney, Inc., that he would have to see "Char-
lie" [Mirabile] at the union hall, that if he secured a per-
mit from the Union DeAngelis would "put him on."
Van Dyke testified that he then went to the union hall
and in the absence of Mr. Mirabile was referred to Mr.
Lofrumento, the union secretary. Van Dyke informed
Lofrumento that he could get a job across the street if he
got a permit, to which Lofrumento allegedly answered
"Be patient. We take care of our own first." Lofrumento,
according to Van Dyke, mentioned that his nephew had
been waiting for a job for 5 or 6 months. Van Dyke
returned to DeAngelis at the jobsite and advised him that
he could not get the permit. DeAngelis is alleged to have
responded "Well I can't do you any good."
Joseph A Smith, president of the Respondent Smith &
Tierney, testified that at no time did Smith & Tierney
have an agreement, practice, arrangement, and un-
derstanding with Local 190 whereby Smith & Tierney
would hire only laborers sent or cleared by the Union.
Smith testified that Smith & Tierney employed both
union and nonunion laborers including college boys.
"They ask me for a job and I give them a job." Smith
testified that while he did not normally hire, leaving it to
his foremen, he had on occasion hired directly without
recourse to the Union, and that the Respondent has from
8 to 10 college boys employed each summer. Smith
testified that at the time Van Dyke allegedly sought em-
ployment at the Smith & Tierney jobsite the work was
tapering off toward the finish of the job and that the
Respondent would not have been in a hiring position to
take on anyone, that after May 27 through the conclusion
of the job no laborers were hired but laborers were laid
off. I credit this testimony by Smith whom I found
straightforward. While I am also convinced that Van
Dyke applied to DeAngelis for employment and was
referred to the union hall, I am not convinced by suffi-
cient testimony of record that DeAngelis was indeed a su-
pervisor within the meaning of the Act, nor that the
Respondent Smith & Tierney was in fact hiring laborers
at the time of Van Dyke' s application . I do not find, nor
do I infer from this incident , that there has been
established the existence of a practice, arrangement, or
understanding pursuant to which the Respondent Smith
& Tierney, Inc., was required to hire its laborer em-
ployees exclusively through referral, clearance, or ap-
proval by the Respondent Local 190, nor that the
Respondent Smith & Tierney, Inc., did in fact deny Van
Dyke employment.
C. The Respondent Planet
Van Dyke testified that he also sought employment
from the Respondent Planet Construction Corporation
the first week in July, went out to the Planet jobsite on the
State campus, and spoke with `Mike the Greek." He as-
serted that he had been told in the Planet office that this
man was a foreman. According to Van Dyke, he asked
"Mike the Greek," a name which was later linked with
that of Michael Pontisakos, if he needed any men, and
was asked whether he had a book. When Van Dyke said
he did not have a book he was asked whether he had a
permit. When he answered that he did not, he was told by
"Mike the Greek" that he could not be hired. According
to Van Dyke at this point an unidentified person stuck his
head out of the office door and said "that's right mac, you
have to have a permit."
Michael Pontisakos testified that he was superinten-
dent of construction for the Respondent Planet Construc-
tion Co. According to Pontisakos the dorm project
started in March 1966. At that time he brought up his
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
own three or four key laborers from New York. When he
needed additional laborers he would "call the hall." If
men were available they would be "put on." If individuals
showed up on the job looking for work, and Pontisakos
thought they were capable, he would "put them on." Pon-
tisakos testified that there was no arrangement with Local
190 and it was not the Respondent Planet's practice to
employ laborers exclusively from Local 190. Pontisakos
produced a list of laborers employed on the Planet Con-
struction jobsite, identifying those laborers who were em-
ployed directly without reference to the Union, in-
dividuals employed either on the recommendations of
other employees or some source other than the Union.
The identification, according to Pontisakos, was based on
information given by the individual laborers. Some of
those hired directly, according to Pontisakos, later joined
the Union. Pontisakos testified that he did not recall hav-
ing interviewed Van Dyke nor that Van Dyke visited the
jobsite and requested employment. He stated that not
having seen Van Dyke he could not have refused him em-
ployment. Pontisakos testified in a candid, straightfor-
ward manner and was an impressive, credible witness. I
credit his testimony. I am not convinced by the testimony
of Van Dyke that he in fact spoke with Michael Pon-
tisakos though he well may have been under the impres-
sion that he was speaking to one "Mike the Greek."
While the contention has been made that Pontisakos did
not deny that he refused to employ Van Dyke, my obser-
vation of the witness Pontisakos as he testified made it in-
delibly clear that when he stated that he could not recall
having seen Van Dyke therefore "how could he refuse
him employment," he was clearly denying that the in-
cident had taken place. In any event,assuming arguendo
that Van Dyke had had the alleged conversation with
Michael Pontisakos I would not, nor do I, infer from this
isolated instance, in the face of the testimony of record to
the contrary, that there existed an agreement , practice,
arrangement , and understanding requiring the Respond-
ent Planet to hire its laborers exclusively through refer-
ral, clearance, or approval by Local 190. I find ac-
cordingly on this record that the Respondent Planet did
not have such an agreement , arrangement, practice, and
understanding , and that the Respondent Planet did not
deny employment to Leon Van Dyke because of his non-
membership in the Respondent Union.
D. The Respondent Callanan Road Improvement Com-
pany
Sam McDowell testified that he was a laborer, and that
he had become a member of the Respondent Local 190
on June 27, 1966. Prior to that time and before he became
a member he started in February 1965 to go to the union
hiring hall seeking employment . As a nonmember appli-
cant, he was referred in August 1965 by Mr. Mirabile to
work at the Callanan Road Improvement Company, and
worked for approximately 17 weeks. He was then laid off
due to weather conditions. After the first of the year in
1966 he returned to the hall looking for work and was in
fact referred out for work by Mr. Mirabile. He was sent
to the Garrison Wrecking Company where he was em-
ployed for an indefinite period. After working I day on a
Friday he was approached the next morning by Phil
Christopher, a foreman at Callanan, who came to his
house and asked him to come back to work for Callanan.
According to McDowell, when he reported to work at the
Callanan site on Monday morning he was approached by
Andy Drabick, whom McDowell thought to be the shop
steward, who allegedly asked McDowell "how he stood
with Charley Mirabile." According to McDowell he told
Drabick he was on the verge of getting in the Union to
which Drabick answered that he would "check with
Charley anyway." Subsequently, on Friday, according to
McDowell the following discussion took place with
Drabick:
A. I was stopped by this ... the fifth day, I
started to get in my car to work and the shop steward
Drabick came over and said, asked me didn't Charlie
send me to work to run a jack hammer some place
and I said, "Yes." I told him that when I first came
to the job. And he says, "Well you can't work any
more on this job."
Q. But you had been referred to another job to
run a jack hammer?
A. Yes.
Q. But you didn't go to that job.
A. I went to the Garson job and worked one day.
Q. And you could have continued the Garson job,
could you not?
A. Thats [sic] if I had wanted to.
McDowell testified further that he subsequently
discussed this with Mirabile at the union hall, where ac-
cording to McDowell, Mirabile asked McDowell angrily
"didn't I send you to run a jackhammer for Garson?"
When McDowell said yes, Mirabile asked who told him
to quit . Before McDowell could explain his reasons Mira-
bile said "You've had it. As far as I'm concerned I don't
ever want to talk with you anymore." According to Mc-
Dowell, Mirabile told him he should not have quit the
Garson job, that this was something he did not allow his
bookmen to do.
McDowell subsequently returned to seeking employ-
ment at the union hall and according to his testimony
shortly thereafter was referred from the hall to employ-
ment at the Sweyer job.
There was ample credible testimony of record to
establish the fact and I find that Drabick was an em-
ployee of the Respondent Callanan, employed originally
as a laborer , was a shop steward in 1965, and at the time
of the alleged conversation with McDowell herein was a
laborer foreman directly responsible to Job Superintend-
ent Leigh with authority to lay men off "through" Leigh.
Mr. Drabick had men under him, from six to seven, but
had no authority to hire or fire, layoff, reassign, promote,
reward, or displace employees. I find that Drabick was
not at the times material herein a supervisor within the
meaning of the Act.
There was testimony by Robert Leigh, job superintend-
ent for the Respondent Callanan, that nonunion laborers
were often hired directly by Mr. Tur, general superintend-
ent of construction of Mr . Marcelle , vice president, and
not through the Union. leigh and Tur testified essentially
that after his reemployment on Monday, April 11, by
Callanan , McDowell worked under Leigh's supervision.
On Tuesday Tur came to Leigh and wanted to know what
had happened to McDowell , he "was not the same Sam
McDowell we had working for us last year." Tur had ob-
served McDowell on several occasions sitting and smok-
ing or just idling. Leigh then observed that McDowell
was idling, queried McDowell, and was told in essence
that McDowell was finding it hard to get back into the
swing of it, but he would straighten out and try to do
better. According to Leigh, McDowell had also used the
excuse that his line of work was in black top. Leigh
LOCAL 190, LABORERS' INTERNATIONAL UNION
testified that some of the laborers mentioned the matter
to him and he talked to McDowell again on Thursday,
April 14 . At this time, according to Leigh , Tur and he
discussed the situation , Tur indicated that if McDowell
did not want to use a pick and shovel they would try him
on the black top. According to Leigh , Tur told him to "let
McDowell go" on Friday if he did not pick up. Leigh
stated that they were anticipating a layoff at this time in
any event due to the status of the project.
On Friday morning, April 15, Drabick came to Leigh
and, according to Leigh , asked if it were all right for Mc-
Dowell to go to the union hall. Leigh said yes. When Mc-
Dowell returned around 10 o 'clock McDowell said he
had to get "straightened out with Mr . Charley." Mc-
Dowell told Leigh he would like to go back up and see if
he could get it straightened out, then left.
Q. Was Mr. McDowell paid and laid off that af-
ternoon?
A. Yes he was. When he had not come back. I
went on to the field office and told the office manager
to make a check out and Mr. Tur had told me if he
hadn 't straightened out to lay him off and I got the
word from Mr. Tur by radio that they were shipping
some men back from the other job.
Neal Galvin testified that he was a timekeeper for the
Respondent Callanan the second week in April when the
McDowell incident occurred , and that he was in the trailer
that morning when McDowell walked in . McDowell
told him in essence that he was in trouble at the Union
because he left the contractor he was working for without
telling the Union . Galvin called the Union, and was ap-
parently requested to send McDowell there . McDowell
left, returned later saying that no one would talk to him at
the Union . Galvin advised him to go back and wait until
someone did . McDowell left again and that was the last
Galvin saw of him. According to Galvin at noon he was
told to lay off McDowell , because of poor performance.
Galvin made out his layoff slip. However , according to
Galvin , McDowell was not in fact laid off . He did not
return . Galvin did not give him his check nor the layoff
slip. McDowell did not return the next week so on the
next normal payday Galvin mailed his check to his home.
In the course of Galvin's testimony on direct examination
and cross -examination a question was raised as to what
appeared to be a variance in his testimony from the state-
ment he had given to the Board investigator wherein he
indicated that McDowell "had not been laid off for not
doing his job ." Galvin explained this by indicating that he
intended to convey the point that McDowell had not in
fact been laid off . Based on my observation of the witness
Galvin as he testified , I credit Galvin 's testimony as to
the events as they occurred . I also credit the versions of
Leigh and Tur concerning their dissatisfaction with Mc-
Dowell ' s performance on the job and their decision to
lay him off. I am convinced and find that they were not
able to effect his layoff by reason of the fact that he left
the job to straighten out his problem at the Union and did
not return of his own volition.
The contention has been made that witnesses Leigh,
Galvin , and Tur were not forthright and not credible in
their testimony , their statements designed to overcome
alleged admissions against interest in prior sworn af-
fidavits. On the contrary I found Leigh , Galvin , and Tur
to be direct and credible in their testimony and I am per-
suaded that they did no more than to explain with care
and refinement the statements made in their affidavits,
some of which are susceptible of more than one in-
567
terpretation . I find that their testimony is not necessarily
inconsistent with their affidavits . For instance , the state-
ment by Galvin that McDowell was not laid off for failing
to do his work properly could be interpreted as a denial
that he was laid off at all or it could be a denial that he was
laid off for that particular reason . Through testimony sub-
ject to cross-examination the statements have been
analyzed and tested for true nuance. And I am convinced
that Leigh, Galvin , and Tur testified credibly.
I find therefore, that the Respondent Callanan Road
Improvement Company did not condition the employ-
ment or continued employment of Charging Party Mc-
Dowell upon clearance , referral , or approval by the
Respondent Local 190 and that the Respondent Callanan
Road Improvement Company did not maintain and en-
force with the Respondent Local 190 an agreement, prac-
tice, arrangement , and understanding pursuant to which
the Respondent Callanan was required to hire laborers
exclusively through referral , clearance , or approval by
Respondent Local 190.
E. The Respondent Local 190
The complaints herein allege essentially that the
Respondent Local 190 maintained in effect with the
Respondent employers an agreement , arrangement, prac-
tice, and understanding requiring each employer to hire
its laborers at specified and other jobsites exclusively
through referral , clearance , or approval by Local 190, and
in the exercise of the aforesaid alleged agreement, prac-
tice, and understanding the Respondent Local 190
refused discriminatorily to clear, refer, or approve certain
laborer applicants for employment to the aforesaid em-
ployers because of the applicants nonmembership in
Local 190. In addition it is alleged that the Respondent
Local 190 restrained and coerced laborer applicants by
threats.
For the reasons advanced hereinabove I have found
and I find that the Respondent Local 190 did not maintain
and enforce with the Respondent Employers herein any
agreement , arrangement, practice, and understanding
pursuant to which said Respondent Employers were
required to hire laborers exclusively through referral,
clearance, or approval by the Respondent Local 190.
Even were I to find that such an agreement, practice, ar-
rangement , and understanding existed I would not find on
this record that the Respondent Union discriminatorily
refused to clear, refer , or approve laborer applicants for
employment because of their nonmembership in Local
190. In this connection there was considerable testimony
adduced at the hearing by the Charging Parties herein. It
was alleged that the Respondent Union refused to clear,
refer , or approve Charging Party Leon Van Dyke to work
with the Respondent Basic at its State campus worksite,
with Respondent Smith & Tierney at its Sheber jobsite,
and with Respondent Planet at its State campus jobsite.
It was also alleged that the Respondent Union on several
occasions refused to clear, refer , or approve Charging
Party Wallace Brown to the MSI Morton Avenue jobsite;
that the Respondent Union refused to clear , refer, or ap-
prove Charging Party Samuel McDowell to the Respond-
ent Callanan Road Improvement Company at its South
Pearl Street jobsite ; and that the Respondent Union
refused to clear, refer , or approve Charging Party Edward
Jackson to Eastern at its State & Broadway jobsite. All of
the foregoing allegations of refusal to clear , refer, or ap-
prove by the Respondent Union are alleged to have been
for the reason that Charging Parties Leon Van Dyke,
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wallace Brown, Samuel McDowell, and Edward Jackson
were not members of the Respondent Local 190.
Van Dyke testified that when DeAngelis of the
Respondent Smith & Tierney, Inc., allegedly advised him
to go to see "Charlie" [Mirabile] he went to the union
hall where in the absence of Mirabile, Mr. Lofrumento,
the union secretary, asked him to be patient stating that
"we take care of our own first" and mentioning that his
nephew had been waiting for a job for 5 or 6 months Van
Dyke testified that he started going to the union hall seek-
ing employment in March 1966 and did so until the mid-
dle of June 1966, going at first practically every day,
between 7 and 7:30 in the morning and leaving between
10 and 11 before noon . He would just go to the waiting
room and sit. There would usually be around 15 or 20
men waiting according to Van Dyke. From time to time
men would be called out of the room by Mirabile and
Lofrumento and would go to the union office. Van Dyke
stated that the number of men called out varied from a
high of 9 or 10 to a low of none, with the average being 3
or 4. By June, when Van Dyke stopped going to the hall
according to Van Dyke, the hall would always be packed
especially on Monday, with well over a hundred men.
Van Dyke testified that he had a conversation with
Mirabile at the union office about securing work in April.
Mirabile allegedly asked him to be patient and wrote his
name on a pad.
Charles Mirabile, business manager for the Respond-
ent Local 190, testified concerning the meeting hall,
describing it as a general gathering place of persons look-
ing for employment, with peak loads in spring and
summer, and "big days" on Monday and Tuesday, with
seats accommodating 90 applicants. Mirabile denied the
conversation with Van Dyke I credit Mirabile and do not
accept Van Dyke's version. Even if it were to be assumed
that the conversation as related by Van Dyke actually
took place this would not provide sufficient basis for a
finding of discrimination by the Respondent Union based
on Van Dyke's nonmembership in the Union There is no
evidence that others using the hall as a source of employ-
ment at that time were not nonmembers, had less seniori-
ty, were less qualified, or in fact were referred, cleared, or
approved in lieu of or in preference to Van Dyke. It is
also clear from Van Dyke's own testimony that when he
was allegedly told to be patient and sit down in the hall he
departed and left for the Basic jobsite.
Charles Mirabile testified in a straightforward manner,
and I credit his testimony, that during April 1966 with
from 75 to 100 laborer applicants normally in the hall he
would send out an average of 20 union men and 30 non-
union men depending on the nature of the job and the
requirement. There has been no contradiction of this
testimony.
The testimony of McDowell clearly established the
fact that while he was a nonunion job applicant going to
the hall he was referred to employment with the Garrison
Wrecking Company, the Callanan Road Improvement
Company, Sweyers, and others. McDowell testified that
Mirabile did not inquire as to his union membership but
sent him out to the jobs. McDowell testified further that
before he became a member of the Union when he went
to the hall he never signed an out-of-work list, and his
name or presence was never recorded. He stated that he
did not know such a list existed and that he had never
requested to be registered on it. After he became a
member, according to McDowell, when he was laid off
the Sweyer job in July, he went into the union office and
requested Lofrumento to place his name on the out-of-
work list, whereupon Lofrumento wrote his name on a
sheet of paper, which contained a list of names. He stated
that he had been advised that "most of the time most
book [union ] men out of work go in and put their name
on the list." McDowell testified that after being laid off
the J V. Warren job sometime around the first of August
he put his name down on the list, and asked Lofrumento
to put down the name of a nonmember friend who had
also been laid off, but that Lofrumento refused to do so.
McDowell also testified that at a meeting which he at-
tended, which was held at the Labor Temple auditorium
in August, attended by from 75 to 100 people, Mirabile,
addressing himself to the fact that charges were being
brought against him stating that "union members come
first and that if any nonunion members in the hall waited
for jobs that he would pick up who he thought was best."
On cross-examination McDowell could not remember
the man whose name he requested be placed on the "list,"
stated that he had never seen him before, and would not
be able to recognize him. Based on my observation of the
witness McDowell as he testified and on his evasiveness
and demeanor I do not credit his testimony.
It is clear to me that the incident between McDowell
and Mirabile over McDowell's rehire at Callanan had
nothing to do with McDowell's membership or nonmem-
bership in the Respondent Union but was simply a matter
of Mirabile blowing up over McDowell's departure from
a job to which he had been referred by the Union and Mc-
Dowell's failure to let Mirabile know that he quit the Gar-
rison job, which placed Mirabile in an embarrassing posi-
tion vis-a-vis the employer Garrison Wrecking Co. When
Mirabile cooled off he did in fact again refer McDowell,
a nonmember, from the hall to another job.
Wallace Brown testified that his landlord Burchell An-
derson was instrumental in getting him a job with MSI in
September 1965. Brown, who had never worked as a
laborer in the construction industry before, went to the
union hall in July 1965 and was referred by Mirabile to
the job. There were 35 or 40 people in the hall at the time
according to Brown. Brown testified further that in
March 1966 he went back to the hall, going everyday
from 4 to 6 weeks until July. During this time he was not
sent out on a job. While Brown was not a union member,
he testified that he tried to join the Union while he was
working for the MSI Corporation in 1965, but was told by
Mirabile that no more books were being given out that
year. Brown testified that in April or May 1966 he sought
employment as a laborer at MSI, went to the foreman, Al
Young, at the Morton Avenue jobsite. Brown's version
was that Young said they needed men, asked Brown to
report the next day, and that Brown did. According to
Brown when he reported for work he was told by Al
Young to see the shop steward, Sam Young, who would
call the hall to see if Brown could get a clearance. Sam
Young went with Brown to a nearby bar where Young
called the union hall. Brown sat at a stool and Young
went into the booth. Subsequent to the telephone call
Young allegedly told Brown that Mirabile had asked to
have Brown sent to the union hall. Brown went and spoke
to Mirabile who allegedly told him that there were men
out of work and asked him to sit down. According to
Brown, after an hour he left the hall and went back to the
jobsite. He sought the help of Burchell Anderson who al-
legedly called Mirabile, but could not reach him. Brown
testified that he returned to the hall the next morning at 7
and waited until 10 but was not referred to the job. Brown
LOCAL 190, LABORERS ' INTERNATIONAL UNION
stated that there were 35 men in the hall during this time,
both members and nonmembers.
Brown testified that while he was at the hall, a Mr.
Billingsly left the hall and went to the MSI jobsite to
work. Brown did not know whether or not Billingsly was
a member of the Union. Brown also testified that he had
been employed on an occasion by the Slattery Construc-
tion Company directly on the job without reference to the
Union, and similarly for several other contractors on
other jobsites, working alongside union members.
Brown's version that Al Young offered to employ him if
he could secure a clearance was denied in pertinent part
by both A] Young and Burchell Anderson, the latter stat-
ing that when Brown queried him as to the possibility of
employment at MSI in the spring of 1966 he told Brown
that there were no openings at that time Based on my ob-
servation of the witness Brown and his demeanor as he
testified, I do not credit his version of the incident.
With respect to Edward Jackson there was testimony
of record establishing the fact that as nonmember of the
Union he was referred from the hall to employment on
three jobs by Mirabile and Lofrumento. I do not find that
the Respondent Union discriminated against Jackson by
refusal to clear, refer, or approve him to employment
because of his nonmembership in the Union.
The complaint alleges additionally that since March 1,
1966, the Respondent Union, through its agent Mirabile,
on or about March 1, April 1, May 15, and May 23,
1966, all at the union hall, restrained and coerced em-
ployee applicants in the exercise of rights guaranteed by
Section 7 of the Act by threatening that they would not be
referred to jobs from the union hall if they obtained jobs
without being referred or cleared by Local 190, all in
violation of Section 8(b)(I)(A) of the Act.
I find the pertinent evidence of record unsatisifactory
and inconclusive to establish that such threats were
made. For example, Jackson testified that at the union
hall in May, with Jackson and from 50 to 75 other appli-
cants present around 8.30 a.m., Mirabile stood in the
door and called out that if any of them went on a job
"without my knowing it" he would knock them off and
there would be no need for them to come back to the hall
looking for a job While this statement may have been
made by Mirabile the record contains insufficient indica-
tion of the circumstances surrounding its utterance,
whether it was addressed to all present, to a specific
group, to members only, or to a particular individual as
part of a particular incident. I simply do not find on this
record the existence of threats by Mirabile of such nature
as would interfere with, restrain, or coerce applicants in
the exercise of activity protected by the Act. Millwrights
Local Union 1421, etc., 156 NLRB 94.
Concluding Findings
I do not find on this record evidence establishing the
existence of an agreement, practice, arrangement, and un-
derstanding between the Respondent Local 190 and the
Respondent Companies herein whereby the Respondent
Companies were requested to secure laborers exclusively
through the Respondent Union's clearance, referral, and
approval. Nor do I find collaboration by them in any such
agreement, practice, arrangement, and understanding.
Southeastern Plate Glass Company, 129 NLRB 412
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local 182
(Lane Construction Corp.), Ill NLRB 952. Nor do I
569
find on this record the preponderance of evidence
required to establish a discriminatory refusal by the
Respondent Local 190 to clear , refer , or approve the ap-
plicant Charging Parties herein for employment with the
Respondent Companies herein as charged . Local 357, In-
ternational Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America [ Los Angeles-
Seattle Motor Express ] v. N.L.R.B., 365 U.S. 667.
The General Counsel contends that the discriminatory
operation of the hall and referral system is clear on the
record based on preference in referral for employment
being given to members of the Respondent Union It is
asserted that the record establishes that the Union main-
tains an out-of-work list for members only, and no list for
nonmembers , while the nonmembers are not permitted to
have their names placed on the list maintained for mem-
bers who are out of work , which the General Counsel
contends is a list utilized in making job referrals and being
utilized to call members at home.
There is no question on this record but that the
Respondent Union referred both members and nonmem-
bers for employment through its referral system. Nor is
there any question but that three of the four Charging
Parties herein were referred to jobs while they were non-
members. It is also established on the record that refer-
rals, such as that of nonmember McDowell were made
from the hall while many other applicants were present
awaiting referral . There is no evidence in the record that
at the times the hall was populated with applicants and
nonmember applicants were referred to jobs that all the
other applicants present were nonmembers . From the
testimony of record it is reasonable to find , and I do, that
on occasion nonmembers were referred to jobs while
union member applicants were in the hall awaiting refer-
ral. This is in accord with testimony of record indicating
that nonmembers were selected from those in the hall for
referral to jobs requiring a particular laboring skill or the
ability to handle certain tools It is clear , for instance,
from the testimony of McDowell that he was selected,
while a nonmember , for referral by Mirabile from a popu-
lated hall, without question or regard to his membership
or nonmembership. I cannot find and I do not find from
this record that the Union discriminatorily preferred
union members over nonmembers for employment
There can be no question but that there were always
other applicants both union and nonunion waiting at the
hiring hall for employment while Van Dyke and the other
Charging Parties were at the hall The record fails to
show that any of those selected by Mirabile or Lofrumen-
to while the Charging Parties were in the hall were less
qualified than any of the Charging Parties, were selected
in preference because they were union members , or were
selected with less seniority or on some discriminatory ba-
sis. Iowa Beef Packers , Inc., 144 NLRB 615.
It is apparent to me from the record in this case that in
a day and age when computer operations and engineered
management techniques are necessary elements of suc-
cessful enterprise the Respondent Union herein, to un-
derstate it, is conducting its hiring hall in an anachronistic
manner out of step with modern practice. Undoubtedly a
better way could be found to discharge its objective of
providing labor as required by employers . However, it is
not my responsibility to inquire into the lack of modern
techniques on the part of the Respondent Union . As long
as the Union does not operate the hall in a discriminatory
manner so as to violate the Act it would appear to be at
liberty to operate in as antiquated manner as it desires.
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While the "good old way" is out of date it is not for that
reason alone unlawful.
Finally, there is no question but that the pertinent writ-
ten collective-bargaining contracts received in evidence
during this hearing contain union-security provisions
characteristic of collective-bargaining agreements in the
building trades field, the legality of which is well settled,
and which do not require the exclusive use of the union
hiring hall The narrow question is as to the existence,
aside and apart from the written agreement, of a tacit
agreement, practice, arrangement, and understanding.
The General Counsel cites International Association
of Heat and Frost Insulators, Local #84 (Edward R.
Hart Co.), 146 NLRB 660, in support of his contention
that the existence of limited exceptions to a practice do
not preclude a finding of the existence of a tacit un-
derstanding to hire exclusively through the union I find
that case inapplicable here. I n that case there does not ap-
pear to have been a bona fide exception to the alleged
tacit understanding since the Respondent always ex-
tended the Union the courtesy of clearing an employee
before putting him to work in the Union's territory and
only neglected to do so in case of three specific em-
ployees who were known to the Respondent as members
of the Union for years and had worked for the Respond-
ent before. This is not the situation here at hand, where
it is clear that the Respondent Companies were free to,
and did in fact from time to time, and not in isolated in-
stances, hire laborers without recourse to the union hall
and without knowledge or concern as to whether they
were or were not union members
The General Counsel also cited Local 568, Hotel,
Motel & Club Employees Union (Warwick Hotel), 141
NLRB 310. Here the Board found that the Respondent
had followed an exclusive arrangement even though it
had hired Negro waiters outside of and without recourse
to the union hiring hall but through the Committee on
Human Relations at the express request of the customer.
The Board held that this single exception did not prove
that a preexisting practice of exclusive hiring through the
Union had been abandoned. In the case at hand no preex-
isting practice of exclusive hiring has been established,
but its existence is the very question in issue.
It is clear to me from ample, credible testimony of
record that the Respondent Companies herein, while for
the major part using the union hall, as needed, as their
main source of supply, hired laborers from time to time
without recourse to, referral from, or approval by the
Union, and that these Respondent Companies engaged in
this practice of direct employment of laborers without
recourse to, referral from, or approval of the Union to an
extent clearly establishing it as other than rare, unusual,
or isolated. I find and conclude therefore that the Re-
spondent Basic Construction Co., Respondent Smith &
Tierney, Inc., Respondent Planet Construction Corp.,
and Respondent Callanan Road Improvement Co., and
the MSI Corporation did not maintain in effect with the
Respondent Local 190, Laborers International Union of
North America, AFL-CIO, and its agent, Charles Mira-
bile, an agreement, arrangement, practice, and un-
derstanding in pursuance of which the Respondent Com-
panies acquired their laborer work force exclusively
through referrals or approvals by the Respondent Union.
CONCLUSIONS OF LAW
1. The Respondent Basic Construction Co.; Respond-
ent Smith & Tierney, Inc., Respondent Planet Construc-
tion Corp ; Respondent Callanan Road Improvement
Co.; and the MSI Corporation are all employers within
the meaning of the Act
2. The Respondent Local 190, Laborers International
Union of North America, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act and
Charles Mirabile, its business manager, is its agent within
the meaning of Section 2(13) of the Act
3. The alleged unfair labor practices set forth in the
consolidated complaint herein have not been established
by a preponderance of the evidence herein. The com-
plaint herein should be, and it is dismissed in its entirety.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record in the case, it is recom-
mended that the Board enter an order herein dismissing
the consolidated complaint in its entirety.