Dic-Underhill Joint Venture

National Labor Relations Board - Board Decisions

Dec 18, 1973

207 N.L.R.B. 1024 (N.L.R.B. 1973)

1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dic-Underhill Joint Venture , Dic Concrete Corpora.
tion and Underhill Construction Co., Inc., Joint
Venture and Victor Marrero. Case 29-CA-3166
December 18, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On July 10, 1973, Administrative Law Judge Ralph
Winkler issued the attached Decision in this proceed-
ing. Thereafter, the General Counsel filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
RALPH WINKLER, Administrative Law Judge: Upon a
charge filed by the above-named individual, a complaint
issued by the General Counsel on January 31, 1973, and an
answer filed by Respondent, a hearing was held on June 4,
1973.
Upon the entire record in this case, including my
observation of the demeanor of witnesses and considera-
tion of briefs, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Dic Concrete Corporation, herein called Dic, and
Underhill Construction Co., Inc., herein called Underhill,
are New York corporations with respective offices and
places of business in Elmont, New York, and Queens
County, New York, where they are engaged in performing
concrete construction subcontracting services and related
services. Dic and Underhill are engaged in a joint venture,
under the name of Dic Underhill Joint Venture, as a
concrete construction contractor on a housing project in
Brooklyn, New York. Dic and Underhill are members of
the Cement League of the Building Trades Employer's
Association of the city of New York, which Association
negotiates and administers collective-bargaining agree=
ments in behalf of its members with various labor
organizations, including the union hereinafter described.
Members of the Association make interstate purchases
exceeding $50,000, annually.
All parties agree, and I find, that Dic, Underhill, and
their joint venture are engaged in commerce within Section
2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
District Council of Cement and Concrete Workers,
International Hod Carriers', Building and Common
Laborers' Union of America, AFL-CIO, herein called the
Union or District Council, is a labor organization within
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Respondent Joint Venture terminated Victor Marrero on
or about December 6, 1972, and the issue in this caset is
whether, as the General Counsel alleges, this termination
was because Marrero sought to become a member of the
District Council.
As indicated above, Respondent is under contract with
the District Council. This contract contains a 7-day, union-
shop provision permitted in the building and construction
industry, but does not provide for an exclusive hiring hall.
There is a local organization named Manpower which
was apparently established to promote employment oppor-
tunities of minority groups, including Puerto Ricans. In
September or October 1972, a Manpower representative
requested Respondent's Job Superintendent Donald De-
veau, to hire members of minority groups at Respondent's
Neptune Avenue project. Respondent did engage about 20
such individuals "off and on," Marrero being one of them.
These employees were apparently excused from the union-
shop obligations under the contract, and were referred to
in the record as "non-union" employees.
Marrero applied for employment at the jobsite on or
about October 12, 1972.1 He saw general labor foreman
Louis Cirillo at the time, and Cirillo told Marrero to return
2 weeks later. Marrero returned on or about October 25 on
which occasion he was hired by Cirillo and told to report
for laborers work the next day (October 26).
The first day of Marrero's employment Union Shop
Steward Joseph Sottile spoke to Marrero and other newly
hired "minority people." According to Marrero, Sottile
told these "minority" individuals that "in two weeks if the
company would issue a letter, we would see him and get
into the Union." The record establishes that this letter was
an employer's 'certification that an individual had a job,
and Sottile testified that such a letter was required for
admission to the Union. Marrero testified that he had
meanwhile heard from other employees that he could be
laid off unless he joined the Union, and that he thereupon
1 Although Marrero testified that he was not referred by Manpower, the
record establishes that Respondent regarded him as within the "nunonty"
group sponsored by that organization.
207 NLRB No. 151
DIC-UNDERHILL JOINT VENTURE 1025
asked Shop Steward Sottile about acquiring union mem-
bership. Sottile replied that he would need a "letter" from
Respondent to the Union, and Marrero testified that
Sottile also indicated at the time that Marrero probably
could not get in the Union unless he knew someone "in the
business."
The morning of December 6 Marrero spoke separately to
Foreman Cirillo'and then to Job Superintendent Deveau,
about a "letter" in order to get into the Union and each
responded to the effect that many union members were out
of work because of a work shortage at the time and that in
his situation as a "minority" employee Marrero was thus
better off without union membership. Later that same day
Cirillo notified Marrero that he was being laid off with the
explanation, according to Marrero's testimony, that Res-
pondent was cutting back, on personnel.
Respondent claims, in effect, that it discharged Marrero
because of the later's inadequate job performance. Labor
Foreman Juan Algarin was Marrero's immediate supervi-
sor. Algarin testified that Marrero's performance was not
up to standard from the outset and that he so notified
Marrero. About a week before Marrero's termination,
according to Deveau's testimony, General Labor Foreman
Cirillo (who is Algarin's supervisor) told Deveau that he
(Cirillo) was considering laying off Marrero for job
inadequacies and Deveau further testified that he (Deveau)
cautioned Cirillo against such action because of sensitive
community feelings respecting "minority" employees.
Algarin testified that he ultimately recommended Marre-
ro's layoff to Cirillo for poor job performance and that
Cirillo went along with the recommendation. Algarin also
testified that he had delayed such recommendation in
order to give Marrero a "break" for the reason that both
were of Puerto Rican ancestry. General Labor Foreman
Cirillo had hired Marrero, and Deveau testified that Cirillo
also had authority to discharge Marrero despite Deveau's
aforementioned caution to Cirillo about community
relations, and Deveau further testified that he did not learn
of the discharge until such action was taken.
The General Counsel contends that Respondent dis-
charged Marrero because of Marrero's indicated interest- in
2 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, recommendations, and Recommended Order herein shall, as
joining the Union. The General Counsel thus refers to
Respondent's (Deveau's and Cirillo's) December 6 sugges-
tion to Marrero that Marrero was better off without union
membership and its failure to give him a "letter" to the
Union; and the General Counsel also adverts to the
chronology of December 6; namely, the discharge occur-
ring the same day of Marrero's request for the "letter." The
General Counsel also adduced the testimony of Marrero
that Marrero had received no prior warnings or complaints
about his work and that Cirillo had on one occasion even
complimented him. (The parties stipulated in this connec-
tion that Cirillo, if called, would deny such compliment.)
The General Counsel further points out alleged inconsis-
tencies in Respondent's" testimony, which I consider it
unnecessary to recite in resolving this matter.
Conclusions
Direct evidence of unlawful motivation for discharges or
other discrimination is often unobtainable, and a finding
of such motivation may be made appropriately upon a
consideration of all attendant circumstances. F. W. Wool-
worth Company v. N L.R.B., 121 F.2d 658, 660 (C.A. 2). On
the other hand, speculation and surmise will not do. In the
present case, we have a union and an employer in contract
relations, and I can find no evidentiary basis for inferring
that Respondent-either unilaterally or in concert with the
Union-had any interest in denying union membership to
Marrero. Whether or not Respondent terminated Marrero
for the reasons claimed by it, and I need not find that it
did, I am thus unable to conclude that this record
preponderantly establishes that Respondent took such
action because of Marrero's manifested desire to join a
union under contract with Respondent and which contract
contains a union-shop provision.
I accordingly, issue the following recommended:
ORDER2
It is hereby ordered that the complaint herein be
dismissed.
provided in Sec 102.48 of the Rules and Regulations , be adopted by the
Board and become its findings, conclusions , and order, and all objections
thereto shall be deemed waived for all purposes.