Local 18, Bricklayers

National Labor Relations Board - Board Decisions

Mar 1, 1968

170 N.L.R.B. 8 (N.L.R.B. 1968)

8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 18, Bricklayers , Masons and Plasterers ' Inter-
national Union of America, AFL-CIO and Jesse
Bulle and Union County Building Contractors As-
sociation and the Johansen Company, Parties to
the Contract . Case 22-CB-784
March 1, 1968
SECOND SUPPLEMENTAL DECISION AND
ORDER
By MEMBERS FANNING, BROWN, AND JENKINS
On June 14, 1966, the National Labor Relations
Board issued its Supplemental Decision and Order'
in the above-entitled proceeding finding, contrary
to the Trial Examiner, that the Respondent violated
Section 8(b)(1)(A) and 8(2) of the National Labor
Relations Act, as amended, by failing and refusing,
since on or about September 10, 1964, to refer
Jesse Bulle for employment from its exclusive hir-
ing hall because of Bulle's lack of membership in
the Respondent. The Board further found that since
on or about September 11, 1964, when jobs were
available, the Respondent discriminatorily denied
Jesse Bulle referrals to such jobs because of his
nonmembership in the Union. The Board based its
findings upon the entire record in the case, includ-
ing the testimony of the Charging Party's witness,
Mabel Holland, concerning her conversation with
Respondent's business agent , Sal Migliore, in
February or March 1965. Contrary to the Trial Ex-
aminer, who considered this testimony irrelevant
and struck it from the record upon completion of
Holland's direct examination (thereby also
foreclosing cross-examination by Respondent),' the
Board found that Holland's testimony corroborated
that of Jesse Bulle concerning his conversation with
Migliore on September 10, 1964.
On May 4, 1967, the United States Court of Ap-
peals for the Third Circuit issued its opinion3 find-
ing, in agreement with the Board, that Holland's
testimony was admissible and relevant to the issue
of discriminatory intent. The court further found,
however, that "[s]ince the evidence was given sub-
stantial weight by the Board in reversing the Ex-
aminer's decision the Union was materially preju-
diced because it had not been afforded an opportu-
nity to cross-examine the witness with respect to
this matter." Accordingly, the court vacated the
Board's Order and remanded the case to the Board
for further hearing before the Trial Examiner to af-
ford the Union the right of cross-examination of the
witness, Holland, and to permit the parties to ad-
duce additional evidence which is relevant to this
aspect of the Holland testimony. In addition, the
court ordered that an attempt be made at such
hearing to clarify certain testimony in the record
with respect to "whether the Charging Party admit-
tedly was in the Union Agent's office on one of the
crucial dates."4
Thereafter, on June 28, 1967, the Board
reopened the record and remanded the proceeding
for further hearing before the Trial Examiner as
directed by the court.' Pursuant thereto, a further
hearing was held before Trial Examiner Thomas F.
Maher who, on November 20, 1967, issued his
"Supplemental Decision" finding that the Respon-
dent had engaged in and was engaging in certain
unfair labor practices, as previously found by the
Board,6 and recommending that the Board's Order
of June 14, 1966, be reissued, as set forth in the at-
tached Trial Examiner's Supplemental Decision.
Thereafter, the General Counsel and the Respon-
dent filed exceptions to the Trial Examiner's Sup-
plemental Decision and briefs in support thereof.
The General Counsel's brief was also in support of
the Trial Examiner's Recommended Order.
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.7 The rulings are
hereby affirmed. The Board has considered its prior
Decision and Order, the court's opinion on remand,
the Trial Examiner's Supplemental Decision, the
exceptions and briefs, and the entire record in this
' 159 NLRB 303
3 Ibid , fn l 7 at 310
3 Local 18, Bricklayers , Masons and Plasterers ' International Union of
America, AFL-CIO v NLRB , 378 F 2d 926 (C A. 3)
4 Ibid at page 929.
As the court did not specify which "one of the crucial dates" it deemed
in need of clarification, the Board merely directed that the Trial Examiner
"permit the introduction of additional evidence clarifying the testimony
previously given herein
6 159 NLRB 303
r The Respondent has excepted to the Trial Examiner 's failure to strike
all testimony involving the settlement negotiation which was conducted at
the hearing and reported on the record We agree that statements made by
the parties during attempted settlement discussions are inadmissible, and
may not be relied upon , as evidence of wrongdoing in an unfair labor prac-
tice proceeding. United Brotherhood of Carpenters and Joiners of America,
AFL-CIO (Endicott Church Furniture, Inc ), 125 NLRB 853, fn. 2, enfd in
pertinent part 286 F 2d 533 (C A D C ). In the instant case, however, the
Trial Examiner correctly did not consider, or base his findings upon , state-
ments relating to the attempted settlement To the contrary , at footnote 10
of his Supplemental Decision , the Trial Examiner expressly stated his
refusal to rely upon "unsolicited statements in the record as substitutes for
probative evidence . " The Board also has neither considered , nor relied
upon testimony relating to the settlement negotiation in reaching its con-
clusion herein Therefore , we find that no prejudice has resulted from the
Trial Examiner's failure to strike such testimony
170 NLRB No. 4
LOCAL 18, BRICKLAYERS 9
case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended-Order of the Trial Examiner and hereby
orders that the -Respondent, Local 18, Bricklayers,
Masons and Plasterers' International Union of
America, AFL-CIO, its officers, agents, and
representatives shall take the action set forth in the
Board's Supplemental Order,9 issued on June 14,
1966.
IT IS FURTHER ORDERED that the Board's Supple-
mental Order, issued on June 14, 1966, be, and it
hereby is, reissued.
8 The General Counsel has excepted to the Trial Examiner's finding that
Mabel Holland did not have a conversation with Respondent 's business
agent in February or March 1965. We find no merit in this exception. For,
on cross-examination by Respondent 's counsel, Holland was unable to tes-
tify with certainty that she spoke to Migliore in February or March 1965 as
she had previously testified on direct examination . Rather, it appears from
Holland's testimony as sex forth in the Trial Examiner 's Supplemental Deci-
sion, that the conversation with Migliore to which she had previously
referred actually occurred on August 23, 1963 The Trial Examiner, how-
ever, correctly considered Holland's testimony on cross-examination as
background evidence to shed light upon the real motive for Respondent's
conduct
8 159 NLRB 303
SUPPLEMENTAL TRIAL EXAMINER'S
DECISION
STATEMENT OF THE CASE
THOMAS F. MAHER, Trial Examiner: This case is
before me pursuant to an order of the National
Labor Relations Board entitled Order Reopening
Record and Remanding Proceeding to Regional
Director for Further Hearing, issued pursuant to an
opinion of the United States Court of Appeals for
the Third Circuit vacating the Board's initial Order
in the proceeding and remanding it to the Board.
The proceeding was initiated in the first instance
upon a charge and amendment thereto filed by
Jesse Bulle on September 18 and November 2,
1964, respectively, with the Regional Director of
Region 22 of the Board, who thereafter issued a
complaint on behalf of the General Counsel of the
Board on January 7, 1965, against Local 18,
Bricklayers, Masons and Plasterers' International
Union of America, AFL-CIO, Respondent herein,
alleging conduct committed on or about September
22, 1964, and on various other unknown dates, in
violation of Section 8(b)(1)(A) and (2) of the Na-
tional Labor Relations Act, as amended (29 U.S.C.,
Sec. 151, et seq.), herein called the Act. In its duly
filed answer Respondent, while admitting certain
allegations of the complaint, denied the commission
of any unfair labor practice.
A hearing in the matter was held before me in
Newark, New Jersey, on January 27, 1965, at
which time all parties, including the Charging Par-
ty, were present and afforded full opportunity to be
heard, to call, and examine and cross-examine wit-
nesses . Respondent and General Counsel were
represented by counsel. The Charging Party was
not so represented. Upon the conclusion of General
Counsel's case-in-chief counsel for Respondent
moved the dismissal of the complaint on the ground
that upon the record made the General Counsel
had failed to establish a prima facie violation of the
Act. The hearing was thereupon adjourned and
briefs were requested directed to the motion to
dismiss before me. Upon consideration of the
record before me, assuming , as required of me, the
veracity of all witnesses appearing, and upon con-
sideration of the pleadings, briefs, and legal argu-
ments presented, on March 30, 1965, I issued a
Decision and Order on Motion to Dismiss , pursuant
to Section 102.25 and 102.35 (h) of the Board's
Rules and Regulations, Series 8, as amended, in
which I ruled that counsel for the General Counsel
had failed to establish a prima facie violation of the
Act, as alleged in the complaint. I accordingly or-
dered that the hearing be formally closed and the
complaint dismissed.
On June 8, 1965, upon General Counsel's
request for review, the Board issued its Decision
adopting my findings, conclusions, and order of
dismissal.' Subsequently, on September 14, 1965,
upon a motion for reconsideration made by the
Charging Party the Board set aside its Decision and
Order, finding in effect and upon all of the record
that a prima facie case had been made, and re-
manded the case to me for the taking of evidence
from Respondent and rebuttal evidence from the
General Counsel, and the rendering of findings and
conclusions by me on the merits of the action.
Pursuant to further notice hearings were held by
me on October 13 and November 1, 1965. Respon-
dent and General Counsel were represented by
counsel. The Charging Party although present at all
sessions was represented only at the November 1
session by his son-in-law Reverend Nathaniel
Nicholson. All parties were provided full opportuni-
ty to be heard, to call, examine and cross-examine
witnesses, to present oral argument, and to file
briefs. Memorandums were filed by all parties.
Upon consideration of all of the briefs and
memorandum filed with me throughout the hearing,
and in keeping with the Board's order of remand
and upon consideration of the record and upon
testimony which I deemed to be credible I issued a
Trial Examiner's Decision, my only decision on the
merits in this matter, on January 3, 1966.
Therein, upon what I considered to be a lack of
' 152 NLRB 1280.
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
credible evidence to support the allegations of the
complaint , I recommended that it be dismissed.
After review of my findings and recommenda-
tions the Board , on June 8 , 1965,2 found that my
resolution of the credibility of the Charging Party
whose testimony I had rejected was based not alone
upon my observation of him as a witness but in
large part upon my " interpretation and analysis of
testimony appearing in the record ." It accordingly
found and concluded upon its evaluation of the
testimony in the record
that Respondent , in the operation of an exclu-
sive hiring hall or referral system , has refused
since , on or about September 10, 1964, to
refer Jesse Bulle for employment by employer
members of the Association and by other em-
ployers who regularly use Respondent 's hiring
hall as their exclusive source of cement
masons , because of Bulle's lack of membership
in Respondent . We further find that since on
or about September 11, when jobs were availa-
ble, Respondent discriminatorily denied Jesse
Bulle referrals to such jobs because of his non-
membership in the Union . By the conduct
described above , we find that Respondent vio-
lated Section 8(b)(1)(A) and 8 (b)(2) of the
Act.
Upon Respondent 's petition for review to the
United States Court of Appeals for the Third Cir-
cuit and the filing of the record in this matter with
the court , briefs were submitted by Respondent and
the General Counsel . After oral argument- and a
review of the record before it the court , on May 4,
1967, issued its Opinion wherein it vacated the
Board 's Order, and remanded the proceeding for
further hearing before me in certain respects
detailed hereafter.3
Pursuant to notice further hearings were held on
August 14 and September 13, 1967. The parties
were represented as at the last previous hearing and
within the scope of the Court's Opinion and the
Board 's Order of Remand full opportunity was af-
forded to call, examine and cross-examine wit-
nesses, and to file briefs with me. All parties filed
briefs, and, as requested , counsel for General
Counsel and for Respondent each filed proposed
findings of fact, conclusions of law, and recom-
mended orders.
Upon all of the foregoing , including the Board's
Decision and Order, the Court 's Opinion , all the
briefs filed with me, and specifically upon my ob-
servation of witnesses appearing before me, I make
the following:
FURTHER FINDINGS OF FACT AND CONCLUSIONS OF
LAW
1. THE BOARD 'S ORDER OF REMAND
After reciting the procedural history of this
matter , as detailed above, the Board 's Order stated
in relevant part as follows:
IT IS HEREBY ORDERED that the record in the
above-entitled proceeding be, and it hereby
is, reopened , and that a further hearing be held
before Trial Examiner Thomas F. Maher, such
hearing to be limited to the following matters:
to permit cross -examination of the witness Hol-
land; afford the parties an opportunity ' to ad-
duce additional evidence relevant to the
testimony of witness Holland ; and, to permit
the introduction of additional evidence clarify-
ing the testimony previously ` given herein. As
expressly limited by the Court, however, the
latter aspect of the remand order is not to be
considered as an opportunity to retry the entire
matter.
IT IS HEREBY ORDERED that this proceeding be,
and hereby is, remanded to the Regional
Director for Region 22 for the purpose of ar-
ranging such further hearing , and that the said
Regional Director be, and hereby is,
authorized to issue notice thereof.
IT IS HEREBY ORDERED that, upon conclusion of
such supplemental hearing , the Trial Examiner
shall prepare ' and serve upon the parties a
Second Supplemental Decision containing
findings of fact upon the evidence received
pursuant to the provisions of this Order, con-
clusions of law and recommendations; and
that , following the service of such Supplemen-
tal Decision upon the parties , the provisions of
Section 102 .46 of the Board 's Rules and Regu-
lations shall be applicable.
Upon the foregoing it is apparent to me that my
findings and conclusions herein are to be limited
"to the evidence received pursuant to this Order,"
that is to say, to the testimony taken at the hearing
on remand, and that such conclusions of law and
recommendations as I make are to be similarly
limited.
In conformity with the Board 's Order of Remand
and its earlier decision 4 I have no alternative but to
accept as dispositive the Board 's credibility evalua-
tion of witnesses which constitutes the evidence
upon which its findings and conclusions are based.
Accordingly , consistent with the Court's and
Board 's directions , such findings as 1 , now make
herein will be related directly to those earlier
findings of the Board to which reference is hereby
made.
II. THE COURT'S OPINION
In relevant part the Opinion of the court states as
follows:
We do not find it necessary at this time to
decide whether the Board's action was
justified . We say this because we think the
matter must be returned to the Board for re-
mand to the Examiner . It is clear, as the
' 159 NLRB 303.
' 378 F.2d 926
4 159 NLRB 303
LOCAL 18, BRICKLAYERS 11
Board's opinion recognizes , that its reversal of
the Examiner's decision was based on the cu-
mulative effect of its evaluation of the
evidence taken by the Examiner. Part of the
evidence relied upon by the Board, as its
opinion shows , was certain testimony of one
Mabel Holland , a welfare investigator for the
City of Elizabeth, New Jersey. Before the Ex-
aminer Mrs. Holland testified, inter alia, that
about 5 or 6 months after the charge herein
was filed one of the Union's agents told her,
that the Charging Party could not work
without a Union card. On the motion of the
Union's counsel this testimony was stricken by
the Examiner as being beyond the scope of the
pleadings. He felt that it was not relevant to
the issue before him. He thereafter naturally
refused the Union's counsel permission to
cross-examine on this stricken aspect of the
testimony. However, on review the Board de-
cided that this testimony was relevant and ad-
missible in resolving the charge here made. We
agree. It went to the issue of credibility which
was particularly important here inasmuch as
the Union denied that in the assignment of
work from the hiring hall the Charging Party
had been passed over because he was not a
Union member. But that does not end the
matter. Since the evidence was given substan-
tial weight by the Board in reversing the Ex-
aminer's decision the Union was materially
prejudiced because it had not been afforded an
opportunity to cross-examine the witnesses
with respect to this matter. This important
,right cannot be ignored particularly since the
direct testimony on this point plays an impor-
tant part in the Board's decision.
We conclude that the matter must be re-
manded to afford the Union the right of cross-
examination of the witness Holland. Also, the
parties should be permitted to adduce addi-
tional evidence which is relevant to this aspect
of the Holland testimony. We also take this oc-
casion to note that certain testimony before
the Examiner leaves something to be desired in
terms of clarity of meaning, e.g., whether the
Charging Party admittedly was in the Union
Agent's office on one of the crucial dates.'
III. THE TESTIMONY OF WITNESS HOLLAND
Mrs. Mabel Holland, a welfare investigator for
the City of Elizabeth, New Jersey, first testified in
November 1965 concerning a conversation with
Respondent's business agent, Sal Migliore, in
February or March 1965. The Board found this
testimony to be corroborative of testimony that
establishes the fact that Migliore would not permit
Jesse Bulle to work.' Thus the Board has found that
Bulle requested of Migliore, and was refused, a job
referral from Respondent's exclusive hiring hall on
September 10, 11, 22, and 25.' At the earlier hear-
ing testimony was adduced from Mrs. Holland to
the effect that sometime in February or March
1965 she visited with Union Agent Migliore in an
effort to obtain employment for Bulle. And
Migliore told her that Bulle could not work without
a union book.
At the hearing on remand before me Mrs. Hol-
land was called to testify on cross-examination
pursuant to the court's remand. In referring to
records before her she stated that on August 23,
1963, she "went to Mr. Migliore's office and asked
him if it were true that Mr. Bulle couldn't work on
jobs, and if he would return Mr. Bulle's book back
to him." Migliore told her "that it was impossible
for him to give him the book, it was left entirely
up to the Local. But, he said, I will let Jesse con-
tinue to work as an independent contractor. I will
not bother him and I will see that the delegates
don't." At this point Mrs. Holland was asked to re-
late this conversation to the one she had described
in earlier testimony as having occurred in February
or March 1965, and as described above. Her ex-
planation follows:
I think when I was previously asked that
question the last time I testified, I think I stated
that I was not quite certain of the specific date
that I went to see Mr. Migliore, because I had
been off and on Mr. Bulle's worker, but I did
have it encouched in the record exactly what
date it was and I do have that record.
Q. In order to clarify the record, then, the
date that you spoke to Mr. Migliore and the
conversation you had with him which you have
just testified to is August 23, 1963, and not
February or March 1965; is that correct?
A. It could have been that I encountered
him. I would have to go through the record to
learn this. But the specific one is the-that I
have right in front of me is August 23, 1963.
Q. Do you have any recollection of any con-
versation with Mr. Migliore in February or
March of 1965?
A. I can't specifically say, but if I stated that
in the record, then I must have it.
TRIAL EXAMINER: I think it would be ap-
propriate after all of these months to let the
witness read it.
MR. CRANER: I was just going to note for the
record, sir, that Mrs. Holland, in connection
with what she just said now said: "I think as
well as I can recollect." That is why I am ask-
ing here.
A. This is why I said as much as I can recol-
lect. Now I am stating that I have the record
and the date is clearly here, because before I
testified from this.
' 378 F 2d at 929.
6 159 NLRB 303.
' 159 NLRB 303.
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
0. August 23, 196-
A. It is in the record. I knew that I had seen
him. I have it stated here as well as I- could
recollect it. It wasn't stated definitely that it
was the date.
TRIAL EXAMINER: So nothing actually hap-
pened in February or March 1965 between you
and Mr. Migliore.
THE WITNESS: I can check my record.
Q. (By Mr. Craner): Could you check your
record, please?
A. Yes, sir. I don't have it encouched here
that I saw him in 1965.
0. If you had spoken to Mr. Migliore in
1965 or at any time subsequent to August 23,
1963, would you have made a note in your
records of that conversation?
A. I should have, yes.
Upon the foregoing it is apparent, and I conclude
and find that Mabel Holland's conversation did not
take place in February or March, 1965, but a year
before the alleged September 1964 incidents. It
would follow, therefore, and I further conclude and
find that Mrs. Holland's 1963 encounter with
Migliore, as now clarified, could not corroborate
Bulle's testimony concerning his conversation with
Migliore on September 10, 1964; this being the
testimony upon which it has been found that when
Bulle "made his first of a series of regular visits in-
volved herein to the union hall on September 10,
he spoke to Migliore about work, specifically ask-
ing for a referral," that he also discussed with
Migliore the -matter of his union book, and that
Migliore, in the course of the conversation, stated
that it was impossible to refer Bulle without a union
books
The account of the conversation between
Migliore and Holland, which I credit, does serve,
however, to "shed light on the true character of
matters occurring" during the crucial period.9 In
such a posture the conversation, while not cor-
roborative, certainly lends significant support to the
pattern of discrimination already found by the
Board.
IV. BULLE'S PRESENCE IN THE UNION AGENT'S OFFICE
ON ONE OF THE CRUCIAL DATES
The court has requested that a clarification be at-
tempted with respect, among other possible items,
to "whether the Charging Party admittedly was in
the Union Agent's office - on one of the crucial
dates" (emphasis supplied). For this purpose Bulle
was recalled by counsel for the General Counsel to
testify at the hearing on remand with respect to his
visit to the union hall on September 22,, 1964,. He
testified that he was at the union hall on that, morn-
ing before the arrival of Oliphant, one of the union
members previously testifying to the incident.
Migliore opened the door and looked at him- When
Bulle asked him if there were any chance of,getting
a job Migliore told him that he had members out of
work. This - - statement, it would appear, con-
tradicts Bulle's previous testimony given before me
at an earlier hearing to the effect- that he had not
asked Migliore for a job on this particular date.
Migliore, however, admitted that Jesse Bulle asked
him for work on September 2-2, 1964, and this ad-
mission has been credited.
Although Bulle's most recent testimony would
corroborate Migliore's admissions, as does the
previous testimony of Oliphant and Powell which
has also'been credited, I do not rely upon Blille's
most recent account, based upon my observation of
him' as a generally confused witness.10 Quite apart
from this element of credibility, however, it would
appear from'Migliore's corroborated admission that
Bulle was told on September 22 that there was no
work. This fact, supported by the background sup-
plied by witness Holland and by the testimony
previously credited by the Board, provides
adequate support for the finding and conclusion
that during the period in question `jobs were
available for assignment, that Jesse Bulle had
requested assignment , and that Respondent refused
to refer him because of his lack of membership in
the Union, thus violating Section, 8(b)(I)(A) and
(2) of the Act.
RECOMMENDED ORDER
It is recommended that the Order of the Board is-
sued by it on June 8, 1965, be reissued and that ap-
propriate further action be taken in the premises to
seek enforcement thereof in the United States
Court of Appeals for the Third Circuit.
t59 NLRB 303.
Local Lodge No 1424, International Association of Machinists,
AFL-CIO v N L R B [Bryant Manufacturing Co 1, 362 U.S. 411.
10 Illustrative of this confusion is Bulle's repeated failure to differentiate
between his efforts to regain membership in the Union and his many at-
tempts to get a job
The record is replete with his testimony and statements directed to al-
leged misconduct on the part of the Union, and Migliore in particular, in
the matter of depriving Bulle of his union membership and book. It appears
that an internal proceeding in the Local, sometime in 1960, resulted in Bul-
le's loss of union membership which has directly caused the unfortunate in-
cidents which followed In this respect Bulle has been most insistent in his
efforts to right what be believes to have been a miscarriage of justice
against him in the Union's procedures, and he has repeatedly requested
that union members be called in the proceeding before me for the purpose
of correcting the action that was taken at the union "trial" several years
ago
I do not perceive this case before me to be an appeal from the Union's
action but rather a proceeding to determine a discriminatory refusal by the
Union to refer Bulle to work , in violation of the Act, albeit this refusal may
be grounded upon some actual or alleged miscarriage of union internal af-
fairs. Mine is not the proper tribunal, therefore , in which to review the
Union 's 1960 action , and it would seem that a failure to •,perceive this
distinction between the two alleged , injuries to Bulle - his initial loss of
union membership , and his recurring difficulties in obtaining employment=
have unduly prolonged this matter,and have unnecessarily confused'it -
Similarly, it is claimed that because of alleged recurring improper con-
duct on the part of Business Agent Migliore no offer of settlement of this
dispute can be relied upon . Suffice it to say that in, the absence of any
amendment to the complaint by counsel for the General Counsel ( and such
an invitation to amend in this respect was made by me prior to the closing
of the hearing) and on the failure of anyone , including Jesse Bulle, to file
appropriate unfair labor practice charges with the Regional Director, I
would not be disposed to accept unsolicited statements in the record as
substitutes for probative evidence of additional violations or of deterrents
to settlement