International Union of Operating Engineers

National Labor Relations Board - Board Decisions

Dec 11, 1951

97 N.L.R.B. 386 (N.L.R.B. 1951)

386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the appropriate unit.3 Upon reconsideration of these different
eligibility rules, the Board is persuaded that the latter rule should be
applied not only to regular part-time employees but also to employees
performing more than one function for the same employer.
In view of the fact that Grubbs works a substantial number of
hours regularly each week in the appropriate unit, doing the same
work as the other pressroom employee, we find that he has sufficient
interest in the terms and conditions of employment within the unit
to entitle him to take part in the determination of a collective bargain-
ing representative 4 Accordingly, we find that Grubbs is an eligible
voter and we shall overrule the challenge to this ballot and order it
to be opened and counted.
IT IS HEREBY ORDERED that the challenge to the ballot of Donald Lee
be, and it hereby is, sustained and that the challenge to the ballot of
Elven Grubbs be, and it hereby is, overruled ; and
IT IS HEREBY DIRECTED that as part of the investigation to ascertain
representatives for the purposes of collective bargaining with the
Ocala Star Banner, at its Ocala, Florida, establishment, among the
employees in the unit set forth in the paragraph numbered 4 of the
Decision and Direction of Election issued by the Board on July 25,
1951, the Regional Director for the Region in which this case was heard
shall, pursuant to National Labor Relations Board Rules and Regu-
lations, within ten (10) days from the date of this Direction, open and
count the ballot of Elven Grubbs, and thereafter prepare and cause
to be served upon the parties a revised tally of ballots, including
therein the count of said challenged ballot.
MEMBER MuRDOCK took no part in the consideration of the above
Order Directing Regional Director to Open and Count Challenged
Ballot.
3 Van Raalte Company, Inc, 95 NLRB No 135; Charlotte Barth Howell and Van Schaack
d -Company , et at, 95 NLRB 1028 ; Industrial Truck and Trailer Service Company, 95
NLRB 354; Howard Johnson, 94 NLRB 1161 ; Evening News Publishing Company, 93
NLRB 1355 ; and cases cited therein.
4 To the extent that the cases cited in footnote 2 are inconsistent with this finding, those
cases are overruled
LOOAL 57, INTERNATIONAL UNION OF OPERATING ENGINEERS AND ITS
BUSINESS AGENT, JOHN WHITE and JOHN LAMANTIA and M. A.
GAMMINO CONSTRUCTION CO., PARTY TO THE CONTRACT. Case No.
1-CB 128. December 11, 1951
Decision and Order
On April 10, 1951, Trial Examiner Alba Martin issued his Inter-
mediate Report in the above-entitled proceedings, finding that the
97 NLRB No. 52.
LOCAL 57, INTERNATIONAL UNION OF OPERATING ENGINEERS 387
Respondents had engaged in certain unfair labor practices, and rec-
ommending that they cease and desist therefrom and take certain
affirmative action as set forth in the copy of the Intermediate Report
attached hereto, and also finding that the Respondents had not com-
mitted certain other unfair labor practices, and recommending that
the allegations of the complaint in connection therewith be dismissed.
The Respondents filed exceptions to the Intermediate Report, a sup-
porting brief, and several motions that the findings of the Trial Ex-
aminer be set aside.' The Attorney General of Rhode Island was
granted leave to file, and did file, a statement amimw curiae 2
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 3 The Board has considered the
Intermediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner with the following modification.
We, like the Trial Examiner, find that the Respondents have vio-
lated Section 8 (b) (2) and 8 (b) (1) (A) by.the Union's contractual
relations with the Company and the hiring practices followed pur-
suant to that relationship. The Trial Examiner, however, predicated
his ultimate conclusion on a finding that the 1946 contract continued
in effect and that the Respondents violated the Act by continuing
to enforce and give effect to the illegal clauses in that contract. With
this we do not agree. On June 2, 1950, the Respondent Union by
' The Respondents moved the Board to reopen the hearing or to direct a new hearing
on the grounds that the Trial Examiner had erred in permitting the introduction of back-
ground evidence , that the Company should be added as a party respondent , and that
testimony regarding the physical ability of Lamantia , the charging party, should be taken,
We have considered these motions, and they are hereby denied . N. L R. B V. Luzerne Hide
and Tallow Company, 188 F. 2d 439, enforcing 89 NLRB 989 ; National Union of Marine
Cooks and Stewards , C. I. 0. (George C. Quinley ), 92 NLRB 877.
2 The Attorney General of Rhode Island objects to the statement in the Intermediate
Report that Rhode Island 's licensing law has not been strictly enforced in recent years.
We do not consider the Trial Examiner ' s statement necessary to a disposition of the issues
herein and , accordingly , we do not adopt or rely upon it. The record , however, conclu-
sively proves that the lack of a license was not a reason for the discharge of Lamantia
and that the licensing law was not complied with by the employer on the project involved
in this case . As we are concerned only, so far as the licensing law is concerned , with the
fact that failure to obtain such a license was not an element in Lamantia 's discharge, we
hereby deny the Respondents' motion that testimony be taken with respect to the enforce-
ment of the licensing laws in Rhode Island.
3 Except as herein stated . At the hearing the Respondent offered to prove that Lamantia,
the charging party, was receiving disability payments from an insurance company at the
time when he was attempting to get employment and holding himself out as physically
able to work . The Trial Examiner rejected this offer of proof , and the Respondent urges
that the evidence it offered is relevant and material to the consideration of Lamantia as a
credible witness . We believe that this contention has merit , and we have considered this
offer of proof . Lamantia 's testimony , however , in the main is substantiated by other posi-
tive evidence. Moreover, the essential facts upon which the Trial Examiner has based
his conclusion are proved by evidence other than the testimony of Lamantia . Accordingly,
we find that the Respondent has not been prejudiced by the Trial Examiner 's rejection
of its offer of proof that Lamantia was receiving disability compensation at the time he
was discharged from the Company ' s employ.
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its authorized officials including Respondent White (who adminis-
tered the contract as the business agent of the'Respondent Union)
executed an agreement to run until December 31, 1951. This contract
incorporated by reference the "other working rules and conditions"
set forth in the contract of March 5, 1946, which provided for hiring
by referral from the Respondent Union and required membership
in the Respondent Union within 3 days after employment as a con-
dition of employment. We find that by the execution of this con-
tract-the contract of Jnne 2, 1950-the Respondents joined with the
Company in creating the conditions which would result in discrim-
ination and that they thereby attempted to cause the Company to
discriminate against employees in violation of Section 8 (a) (3)
thereby violating Section 8 (b) (2), and likewise coerced and re-
strained employees in violation of Section 8 (b) (1) (A). Like the
Trial Examiner, we also find that the Respondents actually caused
the discriminatory discharge of John Lamantia in violation of Sec-
tions 8 (b) (2) and 8 (b) (1) (A) of the Act.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that Respondent, Local 57, International Union
of Operating Engineers, its officers, representatives, successors, and
agents, including Respondent John White, shall :
1. Cease and desist from :
(a) Giving effect to or requiring the enforcement of those pro-
visions in the June 2, 1950, contract and incorporated working rules
with M. A. Gammino Construction Co., or to any extension, renewal,
modification, or supplements thereto, or any superseding contracts,
which require clearance from the Union as a prerequisite to hiring
and membership in the Union within 3 days after employment as a
condition of continued employment.
(b) Operating a hiring-hall referral-card system under an exclusive
employment arrangement with Gammino which requires nonmembers
of Respondent Local to obtain' referral cards from Respondent Local
and pay it working assessments in order to work for M. A. Gammino
Construction Co.
(c) In any other manner causing or attempting to cause M. A.
Gammino Construction Co. to discriminate against employees in vio-
lation of Section 8 (a) (3) of the Act.
(d) Restraining or coercing employees of M. A. Gammino Construc-
tion Co. in violation of Section 8 (b) (1) (A) of the Act in the exercise
of their right to refrain from any and all concerted activities listed
I New York State Employers Association , at at., 93 NLRB 127.
LOCAL 5 7, INTERNATIONAL UNION OF OPERATING ENGINEERS 389
in Section 7 of the Act except to the extent that such rights may be
affected by an agreement requiring membership in a labor organi-
zation as a condition of employment as authorized by Section 8 (a) (3)
of the Act. -
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Immediately write M. A. Gammino Construction Co., and send
a copy to John Lamantia at 55 Caporal Street, Cranston, Rhode
Island, stating that they withdraw all objections to employment of
John Lamantia by M. A. Gammino Construction Co. with the same
rights and privileges it grants to all employees.
(b) Make whole John Lamantia for any loss of pay he may have
suffered by reason of the Respondents' discrimination against him in
the manner provided in Pen and Pencil Workers Union, Local 19593,
91 NLRB 883, and F. W. Woolworth Company, 90 NLRB 289.
(c) Immediately write M. A. Gammino Construction Co. that it
will not demand or insist upon enforcement of or give effect to
any clauses in any contract with it or to any hiring-hall referral-card
system heretofore practiced by them, which require clearance from the
Union as a prerequisite to hiring, which require membership in the
Union within 3 days after employment as a condition of continued
employment, and which require nonmembers of Respondent Local
to obtain referral cards from Respondent Local and pay it working
assessments in order to work for M. A. Gammino Construction Co.
(d) Post in conspicuous places in Respondent Local's office or union
hall in Providence, Rhode Island, where notices to members are cus-
tomarily posted, copies of the notice attached hereto as Appendix A.'
Copies of said notice, to be furnished by the Regional Director for the
First Region, shall, after being duly signed by official representatives
of Respondent Local, and by Respondent White, be posted by said
Respondents immediately upon receipt thereof and maintained by
them for a period of sixty (60) consecutive days thereafter. Reason-
able steps shall be taken by said Respondents to insure that said notices
are not altered, defaced, or covered by any other material.
(e) Mail to the Regional Director for the First Region signed
copies of the notice attached hereto as Appendix A, for posting, M.
A. Gammino Construction Co. willing, at the office and place of busi-
ness of Gammino in Providence, Rhode Island, in places where notices
to employees are customarily posted. Copies of said notice, to be
furnished by the Regional Director for the First Region, shall, after
being signed by Respondent Union's representative, be forthwith
returned to the Regional Director for posting.
6 In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall be inserted before the words, "A Decision and Order ," the words "A Decree
of the United States Court of Appeals Enforcing."
986209-52-vol. 97-26
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(f) Notify the Regional Director for the First Region in writing
within ten (10) days from the date of this Order what steps they have
taken to comply herewith.
IT IS FURTHER ORDERED that the complaint insofar as it alleges
threats of bodily injury be, and it hereby is, dismissed.
MEMBERS HOUSTON and MURDOCK took no part in the consideration
of the above Decision and Order.
Appendix A
NOTICE
To ALL MEMBERS OF LOCAL 5 7, INTERNATIONAL UNION OF OPERATING
ENGINEERS AND TO ALL EMPLOYEES OF M. A. GAMMINO CONSTRUC-
TION CO., PROVIDENCE , RHODE ISLAND
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that :
WE, LOCAL 57, INTERNATIONAL UNION OF OPERATING ENGINEERS
AND JOHN WHITE, BUSINESS MANAGER, WILL NOT enforce, attempt
to enforce, or give any effect to any clause in any collective bar-
gaining agreement with M. A. GAMMINO CONSTRUCTION Co.,
Providence, Rhode Island, or to any extension, renewal, modi-
fication, or supplements thereto, or to any superseding con-
tracts, or to any working rules referred to in any contract with
the above-named company, which require clearance from the
above-named union or membership in the above-named union
within 3 days after employment as a condition of employment.
WE WILL NOT enforce, attempt to enforce, or give any effect to any
working rules conditioned or customs of our trade which require
employees who are not members of the above-named union to
pay working assessments while working, in order to work for the
above-named company.
WE WILL NOT Cause, or attempt'to cause, F. A. 'GAMMINO CON-
STRUCTION CO., its officers, agents, successors, and assigns, to dis-
charge or otherwise discriminate against employees in regard to
their hire or tenure of employment or any term or condition of
employment in violation of Section 8 (a) (3) of the Act.
WE WILL NOT in any manner restrain or coerce employees of
M. A. GAMMINO CONSTRUCTION Co., its successors or assigns, in the
exercise of the right to refrain from engaging in any or all of
the concerted activities guaranteed in Section 7 of the Act, except
LOCAL 57, INTERNATIONAL UNION OF OPERATING ENGINEERS 391
to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of
employment, as authorized in Section 8 (a) (3) of the Act.
WE WILL MAKE John Lamantia whole for any loss of.pay he may
have suffered as a result of our discriminatory action against him.
WE HAVE notified M. A. GAMMINO CONSTRUCTION Co. that we will
not demand enforcement of or give any effect to any clauses in
any contract with it or any working rules or conditions or cus-
toms which require clearance from the union, membership in the
union within 3 days after employment, and the payment by non-
members of working assessments to the union, in order to work for
GAMIMINO.
WE HAVE also notified the above-named company that we have
withdrawn all objections to the employment by it of John
Lamantia.
Dated----------------
Dated----------------
LOCAL 57, INTERNATIONAL UNION
OF OPERATING ENGINEERS,
Union.
By --------------------------------
(Representative ) ( Title)
JOHN A. WHITE, SR.
(Business Manager)
By --------------------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
Intermediate Report and Recommended Order
Upon a charge filed August 4, 1950, served upon Respondents August 5, 1950,
and an amended charge filed September 5, 1950, by John Lamantia, an individual,
herein called Lamantia, the General Counsel of the National Labor Relations
Board, herein called the General Counsel and the Board, by the Regional Direc-
tor for the First Region (Boston, Massachusetts), issued his complaint dated
November 20, 1950, against Local 57, International Union of Operating Engineers,
herein called Respondent Local or the Union, and John White, its business agent,
herein called Respondent White, or White, sometimes referred to jointly herein
as Respondents, alleging that Respondents had engaged in and were engaging
in unfair labor practices affecting commerce within the meaning of Section 8
(b) (1) (A) and 8 (b) (2) and Section 2 (6) and (7) of the National Labor
Relations Act as amended, 61 Stat. 136, herein called the Act. Copies of the
charge and the complaint, together with notice of hearing, were duly served
upon the parties. The complaint and notice of hearing were not served upon
M. A. Gammino Construction Co., named as party to the contract, herein called
Gammino.
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to the unfair labor practices, the complaint alleged, in substance,
that Respondents, by their officers, agents, organizers, and representatives, from
on or about July 3, 1950, restrained and coerced the employees of Gammino and
caused or attempted to cause Gammino to discriminate against employees by
executing an agreement with Gammino which required, and by compelling, as a
condition of employment, membership in or approval by Respondent Local, by
compelling Gammino to discharge Lamantia on or about July 3, 1950, and there-
after refuse to reinstate him ; and that Respondents further restrained and
coerced the employees of Gammino by threatening bodily harm to Lamantia,
and by executing an agreement with Gammino which required Gammino to dis-
criminate against employees or applicants because of membership or nonmem-
bership in Respondent Local."
Prior to the hearing Respondents filed with. the Regional Director motions
for a bill of particulars and to add M. A. Gammino Construction Co. as an
indispensable party respondent to the case, which motions were referred to
the Trial Examiner for action. Respondents filed answers acknowledging
service *of the charge and amended charge, pleading no knowledge as to the
alleged commerce facts, admitting that Respondent Local is a labor organization,
and denying the commission of any unfair labor practices.
Pursuant to notice a hearing was held on December 4, 5, and 6, 1950, at
Providence, Rhode Island, before Alba B. Martin, the undersigned Trial Exam-
iner duly designated by the Chief Trial Examiner. The General Counsel and
both Respondents were represented by counsel and participated in the hearing.
Full opportunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues was afforded all parties.
At the beginning of the hearing the Trial Examiner granted the motion for a
bill of particulars in part and denied it in part. The motion to add Gammino
as a party respondent was denied. Early In the hearing and again after the
General Counsel rested his case, Respondents moved for dismissal of the com-
plaint on the grounds, inter alia, that assumption of jurisdiction would not
effectuate the policies of the Act and that the General Counsel was estopped
from proceeding against a company engaged in the construction industry
because of certain statements made by Robert N. Denham during his tenure
of that office. When first made, decision on Respondents' motions was reserved.
As Denham's statements referred to union-security clauses permitted under
the Act as amended, and as the findings and conclusions below indicate union-
security clauses and arrangements not permitted under the Act as amended,
the motions are hereby denied. When last made the motions were denied. At
the conclusion of the hearing the parties had oral argument. A memorandum
of authorities was received from Respondents.
Upon the entire record in the case and from observation of the witnesses,
I make the following :
FINDINGS OF FACT
I. THE BUSINESS OF M. A. GAMMINO CONSTRUCTION CO.
M. A. Gammino Construction Co., a Rhode Island corporation with principal
office in Providence, Rhode Island, is a general contractor and builder engaged
in the construction of roads, bridges, and airports. During the year before
the hearing it did construction work under contract with State highway com-
missions in Rhode Island valued at approximately $978,000, in Connecticut
valued at approximately $1,500,000, and in Massachusetts valued at approx-
imately $670,000. For the Rhode Island job, the construction of new runways
on an airport serving two interstate airlines, the Company purchased from
LOCAL 57, INTERNATIONAL UNION OF OPERATING ENGINEERS 393
States other than Rhode Island, raw materials consisting of concrete and wire
mesh valued at approximately $80,000. For the Connecticut job, the building
of a bypass around Hartford, Connecticut, to accommodate express highway
traffic from northern Connecticut and Massachusetts, the Company purchased
from States other than Rhode Island and Connecticut raw materials con-
sisting of steel and cement valued at approximately $170,000. For the Mas-
sachusetts job, the construction of a highway, the Company purchased from
States other than Rhode Island raw materials consisting of traprock, steel, and
pipe, valued at approximately $40,000.
In addition during 1950, the Company purchased shovels and cranes valued
at approximately $200,000, and back dumps and trucks valued at approximately
$90,000, which were shipped to it from States other than Rhode Island.
The Company employs from 200 to 1,000 employees, depending upon the nature
and amount of work it is performing. It does all its bookkeeping, keeps its
payrolls, and pays all bills wherever incurred, at its main office in Providence,
Rhode Island.
It is concluded that M. A. Gammino Construction Co. is engaged in commerce
within the meaning of the Act and that it will effectuate the policies of the
Act for the Board to exercise jurisdiction.'
II. THE ORGANIZATION INVOLVED
Local 57, International Union of Operating Engineers , is a labor organization
within the meaning of the Act. At all times mentioned herein its business agent
or manager was John A. White, Sr., referred to herein as John White , Respondent
White, and White.
III. THE UNFAIR LABOR PRACTICES
A. The contracts
1. The facts
Respondent Local and Gammino entered into a written contract March 5, 1946,
referred to herein as the 1946 contract , containing the following pertinent
clauses :
SECTION 3. The Contractor shall have the right to select operators from
the Local in accordance with the type of service to be performed. When oper-
ators cannot be furnished by the Local within twenty-four hours the Con-
tractor shall have the right to employ without regard for Union affiliation,
provided, non-union operators so employed are eligible and secure member-
ship in the Local not later than three days after being employed or be re-
placed by Union Operators . ( Emphasis supplied.)
SECTION 5. It is 4greed that all wages and working conditions will be
found in the Working Rules of the "Operating Engineers Local" as approved
by the International, now in effect in the State of Rhode Island.
SECTION 6. This agreement shall become effective as of the date affixed
hereto, and shall continue in full force and effect until one Party, signatory
hereto, shall have notified the other Party, signatory hereto, of a desire for
a change in any or all of its sections. Within sixty days after receipt of
such notice in writing the Parties shall meet for the purpose of renewing or
revising any or all of its sections.
' Stanislaus Implement and Hardware Company, L2mited , 91 NLRB 618
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The working rules referred to in section 5 of the contract provided in part as
follows :
20. An engineer desiring to quit his job shall notify his employer and
Business Agent, and a competent engineer shall be furnished in his place
to continue the job. Engineers not complying with this rule shall be fined
at the option of the local.
21. No engineer shall be hired by an employer unless he has in his pos-
session and presents to said employer a referral card issued to said engineer
and directed to said employer by the local union and signed by the Business
Manager thereof . ( Emphasis supplied.)
The wage provisions of the 1946 contract have been amended one or more times,
but the above clauses in the contract and the working rules have not been al-
tered. A vice president of Gammino testified that insofar as he knew , no party
to the 1946 contract had given notice under section 6 thereof of a desire to
change any of its sections . An employee of Respondent Local testified that he
believed such notice had been given in writing , but no such written notice was
offered in evidence or any reason given for the failure to do so.
The 1946 contract and all changes in it were negotiated for Gammino by the
Rhode Island Road Builders Association , referred to herein as the Association,
which has negotiated all contracts and changes for its members , including
Gammino, from the time of its formation between 1935 and 1940 until the present
time. Until June 2, 1950, any such contracts and changes negotiated by the
Association were entered into by the contractor and the Union.
On June 2, 1950, the Association itself, on behalf of its contractor -members,
including Gammino, entered into a written contract ( referred to herein as the
1950 contract ), with Respondent Local, running until December 31, 1951, which
altered the existing wage scale and provided in addition :
It is further agreed that the existing contract between the parties as to all
other working rules and conditions shall remain in full force and effect.
(Emphasis supplied.)
At this time no contracts were entered into between the contractors and the
Union.
Insofar as the record discloses, no election has been held under Section 9 (e)
of the Act since the effective date of the 1947 amendments.
Prior to the execution of the 1950 contract there was no existing contract
between the parties to that agreement : the* Union and the Association. The
last previous contract and some changes in it-the 1946 contract-although
negotiated by the Association was actually entered into by Gammino and the
other contractors individually . Gammino's president , signatory to the 1950
contract as president of the Association , credibly testified that it was his under-
standing that except as modified by the 1950 contract , the individual contracts
between the individual contractors and the Union remained in full force and
effect. He credibly testified in effect, and it is found , that the above -quoted
clause of the 1950 contract referred to the rules and conditions established in
the 1946 contract with its incorporated working rules , that "the conditions re-
mained the same," that there have been no changes in the hiring procedure since
about 1940 . The reference in the 1950 contract to an existing contract and the
provision that such existing contract shall remain in effect confirms this inter-
pretation . It is held that the 1946 contract between Gammino and the Union
was in effect at the time of the execution of the 1950 contract and for at least
6 months before, and that it continued in effect thereafter.
LOCAL 5 7, INTERNATIONAL UNION OF OPERATING ENGINEERS 395
Joseph R. Murray, a lawyer-employee who has worked for Respondent Local
since 1942, and is now in charge of its office under Respondent White, testified
that according to his observation Respondent White's duties are "to negotiate
contracts and he sees that the contracts are lived up to . . ."
2. Conclusions
In two respects the 1946 contract with its incorporated working rules provides
for a greater degree of union security than is permitted by the Act as amended :
in its provision that "no engineer shall be hired" without a referral card from
the Union, and in its provision requiring membership in Respondent Local within
3 days after employment as a condition of employment.
Under this contract, as distinguished from the contract under consideration in
American Pipe and Steel Corporation, 93 NLRB 54, clearance from the Union is
a prerequisite to hiring ; the contract thereby creating a hiring-hall arrangement
no longer permitted under the Act.
Section 3 of the 1946 contract requires membership in Respondent Local wflthin.
3 days after employment as a condition of employment whereas the Act as
amended permits contracts requiring membership in a union as a condition of
employment only when employees are allowed 30 days to join.
By continuing to enforce and give effect to the illegal clauses in the 1946
contract during the 6-month period before the filing and service upon Respondents
of the original charge,' and since, Respondent Local and Respondent White, who
signed the 1946 contract as business manager and who was entrusted and charged
with enforcing it, joined with Gammino in creating the conditions which would
result in discrimination. They thereby attempted to cause Gammino to dis-
criminate against employees in violation of Section 8 (a) (3) of the Act, thereby
violating Section 8 (b) (2). They thereby also created •a threat of loss of
employment to all employees who might desire to exercise the protected right
to refrain from joining a union, thereby violating Section 8 (b) (1) (A) .'
B. Hiring-hall practices
1. The facfs
In- explanation of the parties' intentions in the above-quoted clause of the
1950 contract, Joseph R. Murray testified:
Well, from the beginning of the construction trades industry, there are
certain rules and conditions that have been followed as part of, let's call
them, the working conditions that exist. They're known by both the con-
tractor and by the Union . . . It's just a custom of the trade. That's what
they mean by the working rules and conditions.
Rocco Caruolo, a member of Respondent Local, 'asked why he was sufficiently
interested in the trouble " at the Hillsgrove Airport on July 3, 1950, to drive out
to it, replied :
Every member, if I'm correct, to the best of knowledge, has a right. I guess
it's an international law in the Operating Engineers that, 'if they go by a
job. they see any equipment running, if they inquire if it's a Union job and
if there's a Union operator on the machine.
2 Cf. Cat hey Lumber Company , 86 NLRB 157, 24 LRRM 1608 , enforced January 22, 1951,
185 F. 2d 1021 (C. A. 5).
8 New York State Employers Association , Inc, and Red Star Express Lines of Auburn,
Inc., 93 NLRB 127.
Considered herein under "The hire and discharge of Lamantla."
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Joseph R. Murray , who is in charge of issuing referral cards for Respondent
Local, testified that when an employer requested an operator the Union 's prac-
tice "is to send the best man to the job," that when an operator desires to quit
it is his duty to notify the employer and business agent before quitting, and
thereupon the Union makes an effort to furnish a competent engineer in his
place. Murray testified that the last sentence of paragraph 20 of the working
rules applies only to members of Respondent Local. The Union keeps a file by
job classification-such as shovel operator , bulldozer -operator , etc.-of those
working and those not working, but does not classify as to membership and
nonmembership in the Union . Nonmembers of the Respondent Local, and
members of other locals of the same international union, when referred to a
job by Respondent Local, pay a weekly working assessment to Respondent Local
for each week they work . Murray believed that this assessment was less than
dues in Respondent Local. Members of other locals would presumably be re-
quired to pay dues to their own locals while paying working assessments to
Respondent Local.
Charles Traficante , a construction foreman, testified that operating engineers,
when newly employed , "u'sually showed up with a referral card," that if one
did not have a referral card, Gammino called the union office "and asked them
to clear the man for us"; all operating engineers either had a referral card
before hired or "had" to get one after they were hired.
Thomas Gammino , vice president of the Company , testified that on those
occasions when he himself hired an operator , "I never have them report to
work unless they go to the Hall first ," that most of the time nonmembers of
Respondent Local are cleared with Respondent Local before going to work,
although in emergencies they sometimes go to work first. In the event of
emergency employment "They'd have to be cleared out before that night, if I
remember correctly ; they had to." Thomas Gammino testified that from the jobs
most of the hiring of operators was done by his brother , Byron Gammino , super-
intendent of equipment , repair, and maintenance.
Arthur Bussey, the timekeeper , testified without contradiction that within
2 or 3 months before July 3, 1950, Roland W . Burt had come out to the job
from the Union and told him or the superintendent that a given man "would
have to go get cleared through the Union or he couldn ' t work."
Joseph R. Murray testified that paragraphs 20 and 21 of the working rules,
as set forth above, are still followed by the Union and the contractors.
The evidence shows that since August 1947 the Union has given referral cards
for work at Gammino's to 14 operators who were not at the time members of
any union , 8 of whom were given the referral cards at the specific requests for
those individuals by Gammino . The record is silent as to whether or when
these 14 employees became members of Respondent Local.
2. Conclusions
The evidence indicates that in their supplying of men to Gammino , Respondents
operate an illegal hiring arrangement, irrespective of whether it is pursuant to
any contract with Gammino or the Association . Joseph R. Murray testified that
. . . from the beginning of the construction trades industry , there are certain
rules and conditions that have been followed as part of . . . the working condi-
tions that exist." He testified also that paragraph 21 of the Union 's working
rules ( set forth above, and providing that no engineer shall be hired by an em-
ployer without a referral card , from the Union) is still followed by the Union and
the contractors . Rocco Caruolo indicated that eternal vigilance is practiced by
LOCAL 57,. INTERNATIONAL UNION OF OPERATING ENGINEERS 397
"every member," pursuant to what he thought was "international law in the
Operating Engineers" to discover whether each job he passes is a "Union job"
and whether "there's a Union operator on the machine." Thomas Gammino,
who admitted on cross-examination that he had never read the 1946 contract of
the working rules referred to therein, until he was on the witness stand, stated
that when he hires operators himself for the Company's jobs, he always has
them report to the union hall before reporting for work. Foreman Charles Trafl-
cante, who admitted he was not familiar with any contractual provisions, stated
that if newly employed operating engineers did not have a referral card from
the Union, Gammino called the union office "and asked them to clear the man for
us," that all operating engineers "had" to have a referral card from the Union.
Since August 1947 the necessity of obtaining a referral card from Respondent
Local signed by Respondent White in order to work at Gammino's has cost at
least 14 workmen, who were not members of Respondent Local, the payment of a
weekly working -assessment to Respondent Local for each week they worked.
The illegality in the referral-card system practiced by Respondents in their
dealings with Gammino lies in the necessity that nonmembers of Respondent
Local have referral cards either before or just after they begin their employment
with Gammino, and in the exaction of working assessments from nonmembers
who- are given referral cards. The testimony shows that such necessity exists,
regardless of its source, and that regardless of any contractual clauses Gam-
mino's officers and supervisors who employ engineers are aware of this necessity
and take care to meet its demands. It is held that by their practicing the re-
ferral-card system as it now exists, with its element of necessity and- its working
assessments, Respondents have caused Gammino to discriminate against em-
ployees in violation of Section 8 (a) (3), thereby infringing Section 8 (b) (2) ;
and have also restrained and coerced employees in their rights, guaranteed in
Section 7, not to join or assist Respondent Local, thereby violating Section 8 (b)
(1) (A). -
0. The hire and discharge of La'mantia
1. The facts
At a time when Gammino was digging trenches and laying pipe under water,
conditions hazardous for the workers at an airport in Rhode Island, it had
difficulty finding a competent drag-line operator to operate its Marion crane,
which was then being used to dig ditches. On Friday, June 30, 1950, Gammino's
Master Mechanic Joe Fiore complained to its President Frank Gammino, and
Gammino's superintendent on the job, Tim Farone, complained to Vice-President
Thomas Gammino, that the operator on the Marion crane had been fired and a
new one was needed. Frank Gammino replied to Fiore that if the Union couldn't
supply a competent operator by the beginning of the next working day-Monday,
insofar as the record shows-he should hire John Lamantia, "with the under-
standing that, if there was another operator reporting from the Hall, the man
couldn't go to work." That afternoon Frank Gammino transmitted the com-
plaint about incompetent operators to Respondent John White, business manager
of the Respondent Local, its only full-time official and its main functionary in
carrying out its business. With emphasis Frank Gammino demanded of White a
competent operator by the next working day, and added that if one couldn't
be found in that limited time, he would try out Lamantia, who had previously
worked for Gammino in Connecticut. White replied that he would certainly
have a man on the job at the designated time. That evening Thomas Gammino
demanded a competent operator of Joseph R. Murray, whom he reached on the
telephone. Murray replied he would meet the demand.
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sunday morning , July 2, Fiore telephoned Charles Traficante , one of Gam-
mino's foremen , that he had a "tough job to perform ," that on orders from Frank
Gammino he had to hire Lamantia to go on the "rig." Traficante replied he
would do it for Fiore . That evening Traficante telephoned Lamantia, told him
to report to work on the Marion crane the following morning, and to try to get
there a little early "so we can have some trenches opened up ." To Lamantia's
question , "How about the Union ," Traficante replied , "That will be taken care
of. It's Frank 's orders." Lamantia was not a member of Respondent Local
and had had considerable "trouble" with it. He was a member of a sister local
in Connecticut.
Meantime , on Saturday morning, July 1, another operator , John E. Adams, a
member of Respondent Local for 8 years, was issued a referral card at the union
office for the same job that Lamantia was hired to fill.
Monday morning, July 3, Lamantia arrived at the airport at about 7 o'clock
or a little before, and began working on the Marion crane . At about 7 o'clock,
or a little after , Adams arrived , showed or banded the timekeeper , Arthur Bus-
sey, the referral card, filled out a tax withholding blank in the time office, and
then Bussey pointed out to him the Marion crane and told him that was the one
he was to work on. As Adams walked towards his car , parked near the time
office, he noticed that the boom of the crane was moving. He drove to the crane,
about one-fourth mile distant, found Lamantia operating it, told him he had
been sent down there to run the rig, and when Lamantia refused to yield it,
drove back to the time office. From there he.telephoned Respondent white at
the union office, told white that Lamantia was on the machine. White replied,
according to Adams' uncontradicted testimony, -
... that's kind of hard to believe . . . You were hired to go on that
machine . . . That' s your job . . . You were hired by Gammino for that
job . . . You go back out to the machine and tell the fellow that you were
hired for that job . . . If they don't put you on that machine . . . tell the
other boys not to go to work.
Adams thereupon returned to the crane , again told Lamantia he was hired for the
job, and again Lamantia refused to yield.
, Adams then "told the fellows that I know that were on the job that there was
a man running the rig that I had been assigned to, that I had been hired out to
run." Also he told the engineers with whom he spoke to "come off the job."
Asked whether he asked them or told them , Adams replied , "I told them to get
off." He testified that he "believe ( d)" he told them that this was orders of
Respondent White. He told the man running a weld-point pump to stay on the
job and not to leave the pump. All the other operators left their work and
walked toward the time office . Some of them , not knowing Lamantia 's identity,
called to him at work on his rig as they passed`that they were striking because
of Lamantia.
Pursuant to Adams' telephone call, Respondent white sent Roland W. Burt, a
trustee and auditor of Respondent Local, to the airport to "see Adams and see
what the trouble is down there" or "to see what 's the matter with him."
According to Arthur Bussey, the timekeeper , who appeared to me to be a par-
ticularly honest, credible witness, Burt told the men, as they were milling around
his car parked a few feet from the time office, that they were not to go back to
work until Lamantia was off the job. Bussey then telephoned Byron Gam-
mino, brother of Frank and Thomas and superintendent of equipment , repair,
and maintenance for the firm , reported the situation , and received instructions
LOCAL 57, INTERNATIONAL UNION OF OPERATING ENGINEERS 399
to tell Lamantia he would have to leave. Bussey passed this order on to La-
mantia, who thereupon left the rig and came to the time office ; and to Burt, who
relayed the information to Respondent White over the telephone and received
his instructions to "put the men back on their jobs ." Burt then told the men
to return to their jobs , that it was orders from the office. He did not specify
which office , but Burt testified he was well known as a member of the Union and
that all the men on the job were either members of the Union or had referral
cards from it. He was not employed by Gammino . The men then started to
, disperse towards their equipment , and as they did so Thomas Gammino drove up.
According to the testimony of Charles Traficante , a construction foreman who
also impressed me as a truthful , credible witness, and whose testimony is cred-
ited , the men dispersed toward their machines immediately after Lamantia left
the Marion crane, although Adams did not take over the Marion until some
minutes later . Thomas Gammino directed that Adams should take over the rig
and drove him out to it. Lamantia stayed around the time office for a few min-
utes and then left the property.
The testimony shows that in Lonsdale , Rhode Island, in about 1943 Lamantia
,crossed the picket line of a building trades strike . Lamantia testified without
contradiction that in Rhode Island "I had to go out and look for jobs that was
non-union because I had a family to support ," that the only lqcal with which he
has had trouble is Respondent Local, that Respondent Local has "deprived me
out of a living."
Arthur Bussey testified , without contradiction , that when ,new operators report
on the job they sometimes report to him at the time office before going to work
on a machine , and sometimes they do not . His practice is to drive - around the
job every morning at about 7: 30 o'clock, and when on such round he finds a new
operator on a machine he obtains such information from him as is needed for
payroll, tax , and social security purposes . Lamantia knew of this practice by
Bussey, because they had worked on the same job for Gammino in Hartford,
Connecticut , in 1949. In view of these facts no significance is attached to the
fact that Lamantia went directly to the crane and began working whereas Adams
reported first to Bussey and filled out a form.
2. Conclusions
Lamantia was hired by Foreman Traficante who had implied authority from
Fiore to make the contact with Lamantia and employ him. Traficante took over
the mission from Fiore as a favor to Fiore, who had specific orders concerning
the employment of Lamantia from Frank Gammino, president of the corpora-
tion . That Traficante had authority to employ Lamantia is beyond question,
since that authority came from the president of the corporation , whose authority
to employ whomsoever he pleased was in no way reduced by a legal collective
bargaining agreement.
Assuming that Frank Gammino's instructions to Fiore were' that he should
employ Lamantia with the understanding that in the event another operator
reported at the job from the union hall Lamantia could not have the job and the
other man could-it is clear that no such understanding was had between Trafi-
cante, who actually hired him , and Lamantia . Lamantia was hired outright
by Traficante with no reservations whatsoever , and was told to report to work
the next morning on the Marion crane, on which Lamantia had worked before
in Connecticut . It is held that Lamantia was employed by Gammino as of the
time of the telephone conversation between Traficante and Lamantia Sunday
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
night, July 2, 1950. He actually performed on the job the following morning for
a few minutes before he was discharged.5
The testimony is clear that Lamantia's di'sc'harge was caused by Respondent
Local and Respondent White in enforcement of their invalid hiring-hall contract
and practices, and for the purpose of depriving Lamantia of his right to work in
Rhode Island without joining or paying tribute to Respondent Local and of
securing the job for Adams, who had a referral card. The other operators left
their machines in response to the command of John E. Adams, a long-time union
member, who was acting on the specific orders of Respondent White, speaking
for Respondent Local, to "tell the other boys not to go to work." It is found that
Adams relayed this order from White to the employees and that the employees
struck pursuant to the order and for the purpose of forcing Gammino to dis-
charge Lamantia. It is found further. that the discharge of Lamantia, at the
direction of Byron Gammino who had authority to hire and discharge operators,
was caused by the economic action of the employees for which Respondents were
responsible . It follows that by causing Gammino to discharge Lamantia as
found above, Respondent White and Respondent Local violated Section 8 (b)
(2) of the Act and also Section 8 (b) (1) (A) a It is so held.'
5 In view of which, and in view of the fact that no mention of any physical disability
was made when Lamantia was removed from the job for other reasons, Respondents' prof-
ferred evidence that Lamantia was disabled because he was then receiving disability
payments from an insurance company for an injury earlier suffered was rejected by the
Trial Examiner-correctly , it is submitted.
e Clara-Val Packing Company , 87 NLRB 703
Respondents contend, in effect, that Lamantia was discharged because he did not have
a license to operate the rig in Rhode Island. The only evidence in support of this conten-
tion is that Lamantia did- not have a license and that when Thomas Gammino arrived
at the scene of the trouble on July 3, 1950, after Lamantia had left the rig, after Burt
had told the men to return to work, and after the men had started back towards their
machines , Thomas Gammino said to a number of men-as he testified-"Which operator
has the referral card, a book , and a license around here, and that 's the man who's going
to run the rig " This testimony is not credited . As they were discussing the employment
of Lamantia and actually hiring him , no mention of a license or lack of it was made by
Frank Gammino , Joe Fiore , John White , Thomas Gammino, Joseph R Murray, or Charles
Traficante . Nor did White mention to Adams or Burt that Lamantia did not have a
license, nor Adams or Burt to the men . Had the absence of a license been a factor in the
discharge of Lamantia , surely the matter would have been discussed by somebody before
the arrival of Thomas Gammino on the scene that morning . Further , Thomas Gammino
testified that there were only five or six operators in the State of Rhode Island who were
qualified and capable of handling the Marion crane, and that Lamantia was one of them
In addition , Frank Gammino testified that he knew Lamantia did not have a license in
Rhode Island when he told Joe Fiore to hire him , and that Fiore knew it also ; but this
did not stop them from taking the initiative to employ him. Lamantia was refused a
license by the Board of Examiners of Hoisting Engineers of the State of Rhode Island
in about 1942 or 1943 when licensing began in that State, but since then , according to
his testimony, he has worked off and on at his trade in Rhode Island and no one in employ-
ing him ever asked him whether he had a license. He testified that he was never denied
a job or been terminated from a job because he did not have a license Charles Traficante
testified that prior to the filing of the charge in this case he did not know whether any
of the operators on his jobs had or did not have licenses, that "Immediately after this
case came up, I made it my duty to see the other operators on the job and ask them if they
had licenses ." He found that some had had licenses but had not renewed them when
they expired ; that others never had licenses He told all operators who did not have
licenses to get them immediately , but he did not check up to see whether his instructions
had been obeyed.
It thus appears that with whatever zeal the licensing law was originally enacted and
early enforced in Rhode Island, it has not been strictly enforced in recent years and it
had nothing to do with the discharge of Lamantia on July 3, 1950 . It is so found.
LOCAL 57, INTERNATIONAL UNION OF OPERATING ENGINEERS 401
D. Threat of bodtily harm to Lamantia
Traficante and Lamantia testified credibly that during the period of time
when nobody was on the Marion crane , Rocco Caruolo , a member of Respondent
Local but not an officer, arrived on the scene and threatened to break Lamantia's
head open if he got back on the crane . Caruolo testified that he swore at
Lamantia but did not threaten him. The version of Traficante and Lamantia is
credited . Caruolo denied that Respondent White sent him to the scene of the
trouble that morning, stated that he went because while having coffee in a
restaurant he was told there was trouble at the airport job. Since Caruolo
was not an officer in Respondent Local and had no authority or apparent au-
thority from it or from Respondent White, his action in threatening Lamantia
is not attributable to Respondents.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth in Section III, above , occurring in
connection with the operations of Galmnino , described in Section I, above,
have a close , intimate , and substantial relation to trade, traffic , and com-
merce among the several States, and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V THE REMEDY.
It has been found that Respondents have committed unfair labor practices in
violation of Section 8 (b) (2) and Section 8 (b) (1) (A ) of the Act by con-
tinuing to enforce and give effect to invalid union -security clauses in a contract,
by operating a hiring-hall referral -card system in their dealings with Gam-
mino which requires employees who are not members of Respondent Local to
obtain referral cards and pay working assessments to Respondent Local, and
by causing Gammino to discriminate against John Lamantia in the tenure of his
employment . It will therefore be recommended that Respondents cease and
desist from such practices and take certain affirmative action designed to
effectuate the policies of the Act.
It will be recommended that Respondent Local and Respondent White notify
Gammino in writing that they will no longer demand enforcement of any con-
tractual clauses with it or any hiring -hall practice which require union clearance
as a prerequisite to hiring , membership within 3 days as a condition of employ-
ment, and payment of working'assessments . It will be recommended also that
Respondents write Gammino , furnishing a copy to Lamantia , stating that they
withdraw all objections to the employment of Lamantia by Gammino.
Respondents contend they should not be ordered to neutralize the harm they
have caused Lamantia by payment of back pay to him, because he could not have
continued working for Gammino without a license to operate the rig in Rhode
Island. They contend in effect that to order them to take any action towards
Lamantia 's reinstateynent or to order them to make him whole for any loss he has
suffered would be causing them to violate or cause the violation of the licensing
law of Rhode Island.' It is not felt that this would be so . The overwhelming
preponderance of the evidence in the case indicates that the licensing question
was not thought of at the time of the hire and discharge of Lamantia , by anyone
having to do with the matter, and that had Adams not arrived on the scene with
a referral card Lamantia would have continued working for Gammino for an
ICf. Texas Company v . N. L R. B., 120 F. 2d 186 ( C. A 9) ; N . L R B. v . U. S. Truck
Co, Inc ., 124 F. 2d 887 ( C. A. 6).
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
indefinite period of time. It is appropriate to order Respondents , therefore, to
make him whole for the damage they have done Lamantia by-paying to him such
back pay as he would have earned but for the discrimination they caused against
him. It is appropriate also to direct Respondents to notify Gammino that they
withdraw all objections to the employment of John Lamantia by Gammino.
Such notification , plus making him whole, will serve to correct the harm done
Lamantia when Respondents caused his discharge . Such notification will not
cause the violation of any law of the State of Rhode Island. Whether there-
after Gammino chooses to reinstate Lamantia and employ him along with its
other engineers who lack State licenses , or chooses to insist that all its operators
get licenses upon pain of discharge , is a matter for Gammino to decide. In any
case ordering Respondents to make amends for their action against Lamantia
causes no violation of State law.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case , I make the following:
CONCLUSIONS OF LAW
1. M. A. Gammino Construction Co. is engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.
2. The Respondent Union, Local 57, International Union of Operating Engi-
neers, is a labor organization within the meaning of Section 2 (5) of the Act.
Respondent John White is its agent within the meaning of Section 8 (b) of the
Act.
3. By continuing to enforce and give effect to the illegal union-security clauses
in the 1946 contract with M. A. Gammino Construction Co. and the working
rules, Respondents , and each of them, have since February 5, 1950 , engaged in
and are engaging in unfair labor practices within the meaning of Section 8 (b)
(2) and Section 8 (b) (1) (A) of the Act.
4. By operating the present hiring-hall referral -card system, which requires
nonmembers of Respondent Local to obtain referral cards from Respondent
Local and pay it weekly working assessments in order to work for Gammino,
Respondents , and each of them, have engaged in and are engaging in unfair
labor practices within the meaning of Section 8 (b) (2) and Section 8 (b) (1)
(A) of the Act.
5. By causing M. A. Gammino Construction Co. to discriminate against John
Lamantia , an individual , in the hire and tenure of his employment, Respondent
Union and Respondent White, and each of them, have engaged in and are en-
gaging in unfair labor practices within the meaning of Section'8 ( b) (2) and
Section 8 (b) (1) (A) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
SYRACUSE FOUNDRY, INC. and INTERNATIONAL UNION OF ELECTRICAL,
RADIO AND MACHINE WORKERS, CIO . Case No. 3-CA-267. De-
cember 11, 1951
Decision and Order
Oil July 11, 1951, Trial Examiner Stephen S. Bean issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
97 NLRB No. 64.