Thomas Mechanical, Inc.

714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Association of Journeymen and Apprentices of the Plumbing & Pipe Fitting Industry of the United States and Canada, Local Union No. 412, AFL-CIO (Thomas Mechanical,Inc.) and Leonardo T. Valenzuela. Case 28-CB-1468 May 22, 1980 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND TRUESDALE On February 7, 1980, Administrative Law Judge David G. Heilbrun issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Re- spondent filed an answering brief in opposition to the exceptions of the General Counsel. 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 au- thority in this proceeding to a three member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' 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 Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. I The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with re- spect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dly Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for re- versing his findings. In par. 8 of the "Findings of Fact and Resultant Conclusion of Law" section of his Decision, the Administrative Law Judge incorrectly stated that two of the General Counsel's witnesses, Alfred Wilson and Clarence Dobbs, had "suspect friendship bonds to [Charging Party] Valenzuela," which provided a basis for discrediting their testimony. In fact, the record reveals that, while Dobbs admitted being a close personal friend of Valenzuela, Wilson testified without contradiction that he was not a friend of Valenzuela. This error in the Administrative Law Judge's Deci- sion does not affect his credibility resolutions inasmuch as he relied upon other independent factors in discrediting the testimony of Wilson, and we do not rely upon it in adopting his Decision. DECISION STATEMENT OF THE CASE DAVID G. HEILBRUN, Administrative Law Judge: This case was heard at Farmington, New Mexico, on July 10 and 11, 1979, based on a complaint alleging, as amended, 249 NLRB No. 98 that on or about September 25, 1978, United Association of Journeymen and Apprentices of the Plumbing & Pipe- fitting Industry of the United States and Canada, Local Union No. 412, AFL-CIO, herein called Respondent, caused or attempted to cause Thomas Mechanical, Inc., to discharge Leonardo T. Valenzuela, and thereafter failed and refused to refer Valenzuela for employment from its exclusive hiring hall, because he was not a member of Respondent and/or because he had failed to accede to plundering of job opportunities by members of Respondent, with its knowledge, and/or because of arbi- trary and invidious considerations. Upon the entire record,' my observation of the wit- nesses, and consideration of post-hearing briefs, I make the following: FINDINGS OF FACT AND RESULTANT CONCLUSION OF LAW Valenzuela is a journeyman pipefitter-welder accom- plished in the specialty of heliarc welding. He has been a member of El Paso, Texas, UA Local 231 since approxi- mately 1970. Around July 1977 he contacted Allan Pear- son, Respondent's business agent based in Las Cruces, New Mexico, to explore job prospects in that State. In Valenzuela's presence Pearson telephoned Respondent's main office in Albuquerque to tell Carl Smith, business manager and chief executive officer, that a qualified welder was available for work. Valenzuela followed up from this, and was soon referred to a job underway with construction contractor Stearns-Roger, Incorporated. 2 This work lasted until early 1978 when a second referral, as handled by Respondent's hiring hall dispatcher, Jo Ann Painter, resulted in Valenzuela's commencing em- ployment with Thomas Mechanical, Inc., at an Arizona Public Service Commission project termed the "Four Corners" job. 3 In connection with starting this work, Valenzuela signed a dues-checkoff authorization running to Respondent. Around September 26, 1978, certain members of Re- spondent voiced dismay about Valenzuela's continuing to work while "local hands were on the . . . bench," an un- derstood vernacular expression meaning that regular union members of the vicinity were out of work and competent to perform what the traveling journeyman was doing. Over several days this continuing theme became discomforting to Valenzuela, and General Fore- man Alfred "Snake" Wilson, having learned of it, tele- The transcript is hereby corrected in (14) particulars as requested by General Counsel in an unopposed motion. Additionally, I hereby correct the transcript in certain respects. 2 Respondent is party to a current collective-bargaining agreement with Mechanical Contractors Association of New Mexico, Inc., which provides for operation of an exclusive hiring hall by Respondent for use of that organization's employer-members or by employers that have oth- erwise bound themselves to such contractual arrangement. I Thomas Mechanical, Inc. maintains an office and place of business in Farmington, New Mexico, where at all material times herein it has been engaged in mechanical contracting in the construction industry, annually purchasing goods and materials valued in excess of $50,000, which were transported and delivered to its place of business in and near Farmington, New Mexico, directly from suppliers located in other States. I find that it is an employer engaged in commerce within the meaning of Sec. 2(6) and (7) of the Act, and that otherwise, as admitted, Respondent is a labor or- ganization within the meaning of Sec. 2(5) of the Act. PLUMBERS, LOCAL 412 715 phoned Smith to complain of the practice in context of Valenzuela's being the only qualified heliarc welder still on the project for Thomas Mechanical. Smith told Wilson that the men should leave travel card holders alone. Within a day of this, and spurred by still further innuendo about why he persisted in working, Valenzuela spoke with both Superintendent Clarence Dobbs and Wilson, saying he planned to quit rather than sustain fur- ther pressure. They prevailed on him to stay with an as- surance of support, and shortly thereafter, in a jobsite conversation with Respondent's steward, Leonard Sam, present, Wilson advised openly of Smith's opinion on the subject. Valenzuela actually did quit on September 29, 1978, following which he telephoned Painter for a view about future job prospects. She advised him it was slow and likely to remain that way for a couple of months. Valenzuela's next contact with the hiring hall was around January 15, 1979, when he commenced telephon- ing Painter to inquire again of job prospects. 4 Valenzuela testified that in the course of nine calls over the balance of that month Painter progressively advised him that some welder requisitions were being received, that a few travelers were still on the list, and that Respondent had not as yet received an expected "eligible for rehire" list from Stearns-Roger. As this was occurring, friends en- couraged Valenzuela, himself a near lifelong resident of Las Cruces, to seek membership in Respondent as a person occupationally competent and possessing potential for fraternal assimilation into the organization. This inter- ested Valenzuela and he wrote the following letter to Smith on January 22, 1979. I respectfully request your consideration of my appeal for a transfer of membership from Local 231 of EL Paso, Texas, to Local 412 in Albuquerque, New Mexico. I have advised Mr. Norris Clark of Local 231 of my intent to transfer membership and have requested Mr. Clark to forward my current status of membership to you at his earliest conven- ience. I have been working in the Farmington area for approximately 16 months and the reason for this re- quest for a transfer of membership is that I plan on relocating and establishing myself in the] Farming- ton area. I have been a member in good standing of the U. A. since 1969 and have always worked out of New Mexico. I wish to make note of the fact that several mem- bers of Local 412 have expressed their willingness to sponsor this transfer. I would greatly appreciate your cooperation and timely consideration of my request for a transfer of membership. Subsequently, in context of further inconclusive tele- phoning to Painter, Valenzuela called Smith on February 5, 1979, to inquire about working as a welder. Valen- zuela testified that Smith first alluded to the January 22 letter, and then said that "some enemies" had been made 4 Operation of this hiring hall is based on two eligibility groups; the first preferred group being those registrants who have 3 continuous years of work experience within New Mexico, and the second group, to which travelers often belong, being all other persons qualified at the trade on the Thomas Mechanical job, adding, "Leo, you should have quit that job when you was told to." Valen- zuela recalled the conversation ending by his giving Smith a current telephone number after learning general- ly that welders were being put on by certain employers (but not hearing Stearns-Roger named). Smith's version is that the conversation keyed only to membership trans- fer rules, as to which Valenzuela became extremely upset while voicing a belief that rules were "changing . . . to prevent him from being qualified to transfer." Around late January Valenzuela had prevailed on both Dobbs and Wilson to intercede for him. Dobbs testified that he then telephoned Smith to probe why Valenzuela was seemingly unable to get work through the hiring hall. Dobbs recalled that Smith repeated the "few en- emies" theme, adding that "them guys had gone in his office and that he had to do what they wanted." Wil- son's contact with Smith, which he placed as occurring in February 1979, involved a claimed concession that Valenzuela had been "flagged" by unspecified persons.5 Smith's version of these conversations is that he told both Dobbs and Wilson that transferring in by a current UA member is automatic after 3 years in the jurisdiction of any constituent local, or by the unprecedented step of a waiver approved by the membership at a regular union meeting. Smith denied making any reference to a "flagged travel card," or to stating he would block Va- lenzuela from employment in New Mexico. A further development was action by David Black, adult probation-parole office for New Mexico's Correc- tions Division, who wrote to Smith on February 13, 1979, stating: Mr. Leo Valenzuela is one of the parolees on my case load. I recently recommended him for an early discharge from parole. While on parole supervision Mr. Valenzuela has exhibited only the finest quali- ties of an American Citizen. On February 11, 1978, Mr. Valenzuela was ar- rested by Federal authorities for Conspiracy and Intent to Distribute Heroin. However, these charges stemmed back to the offenses which put Mr. Valen- zuela in the New Mexico State Penitentiary in the first place. In other words, the only trouble Mr. Va- lenzuela has had with law enforcement authorities was in 1976 prior to the time he was sent to the penitentiary. If the union is truly for people it would get behind Mr. Valenzuela and make certain he had a job. Mr Valenzuela believes in the union, and sup- ports it, for the union to pull their support from Mr. Valenzuela at this time would be a travesty of jus- tice. After so conversing, both Dobbs and Wilson prevailed on John Thomas. president of Thomas Mechanical, to use his influence The prompt consequence was a telephone call from Thomas to Smith in which Thomas described dialogue as covering the difficulty of getting formerly employed travelers back to work, but without mention by Smith of Valenzuela's having made enemies in the past. PLUMBERS, LOCAL 412 715 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Please reconsider your decision and let Mr. Va- lenzuela work in New Mexico. 6 After receiving this letter, Smith telephoned Black, asser- tedly to reiterate Respondent's rules governing member- ship transfers. In the course of the conversation Smith concededly voiced a "strong," and presumably adverse, opinion about Valenzuela's "criminal" record. Black's version is that Smith expressly doubted Valenzuela would be allowed to work in New Mexico, but the deci- sion was for others to make. Black added that Smith re- ferred also to Valenzuela's having refused "to leave the bench whenever locals were needing jobs," and ex- pressed dislike for a "kind of person [who would] chron- ically push drugs." On February 19, 1979, Valenzuela wrote to Smith in ostensible confirmation of a telephone conversation be- tween them earlier in February "with regard to my em- ployment situation as a pipefitter-welder in the State of New Mexico." The two then angrily conversed by tele- phone, and, following a written repetition of accusations against Smith, this charge was filed on February 28, 1979. The case has two facets; one dealing with the dynam- ics of Valenzuela's leaving employment with Thomas Mechanical, and the other dealing with his never being referred to employment from the hiring hall. 7 I find in- sufficient evidence from which culpability may be at- tached to Respondent from Valenzuela's act of quitting on September 29, 1978. Assuming an "unwritten law" was consciously present among and between local and traveling UA members, as journeyman-traveler Merrick "Rick" Jann credibly testified to be the case, such a phe- nomenon does not elevate beyond mere interpersonal dealings without some affirmative showing that a charged labor organization invoked the "unwritten law; or otherwise impermissibly tampered with employment. While Steward Sam was present when Valenzuela expe- rienced criticism from fellow tradesmen for not leaving the Thomas Mechanical job, a blanket repudiation of such pressure was effectively communicated by Smith to the Employer's supervisory personnel. Smith can hardly be expected to police the manners of his many farflung members, and in the last analysis Valenzuela's act of quit- ting, while done in a despairing mood, was voluntary. This appraisal harmonizes well with the further credible testimony of Jann to the effect that, when he directly posed the dilemma of a prudent UA traveler to Farming- ton-based business agent John Franklin, the latter an- swered neutrally that, "I can't tell you to . .. leave the job." The fact that a series of preferred referrals, all of them members of Respondent, were made to the job 6 The circumstance referred to in this letter was a conviction after a nolo contendere plea, for which Valenzuela was imprisoned over a 6- to 7- month period until released in July 1977. Later arrest on February II1, 1978, was the originating event causing Valenzuela to miss workdays at Stearns-Roger, where employed at that time, and ultimately to be termi- nated along with formal determination by the company of his being ineli- gible for rehire. This determination was based only on a strict rehire policy at the time, there being no indication that Stearns-Roger officials knew just why Valenzuela missed work. I Valenzuela had in fact privately acquired employment as a welding inspector at the Four Corners project late in 1978, and continued there until early January 1979. over workdays commencing soon after Valenzuela's quit- ting is, without more, inadequate to show an orchestrat- ed scheme of causation within the meaning of Section 8(b)(2) of the Act. Cf. International Union of Operating Engineers, Local 106, AFL-CIO (Green Island Contracting Corporation), 243 NLRB No. 99 (1979), in which evi- dence, taken as a whole, showed that certain agents of a charged labor organization were "the operative cause of the termination." Similarly, the failure of Valenzuela to acquire work through the hiring hall does not redound upon Respond- ent. I so conclude in large measure because of credibility findings that favor Smith as against Dobbs, Wilson, and Black. The two former witnesses have suspect friendhsip bonds to Valenzuela, and I doubt that Black was equipped to comprehend the nuances of what Smith said to him.8 Smith testified with impressively composed de- meanor, and was unshaken throughout all questioning from his consistency of recall as to utterances, events, and circumstances. Further, I am convinced that both Dobbs and Wilson have yielded to suggestibility founded in Valenzuela's own mistaken, and marginally paranoid, feeling that Smith was determined to disadvantage him, and did so with thinly veiled reference to enemies and the cryptic notion of "flagging." As to these otherwise actionable utterances, I find Valenzuela's testimony com- pletely unworthy of belief, noting that in general he was vague, vacillating, and unpersuasive. 9 Thus, there is a failure of proof as to alleged motive, and most importantly Valenzuela himself actually failed to unequivocally seek registration for referral. Former coworker Jann, himself a traveler (and supposedly overly long holder of his Thomas Mechanical position), obtained a fruitful hiring hall referral from Painter after plainly stating his desire for registration with a timely call. Furthermore, Valenzuela was quite evasive as to where and how he might be contacted, and puzzlingly gave his telephone number to Smith while withholding it I The testimony of Thomas does not lend measurable support to Gen- eral Counsel's case. He described a chronology of employer-initiated re- ductions in force after the late September 1978 completion of certain spe- cialty welding on "second point heaters," followed closely by calls to the hiring hall for new welders (subject to testing) to perform continuing "regular work." This odd configuration of events is not shown to have any causative influence outside management's own councils, and Smith's dialogue in a telephone conversation with Thomas occurring "after the first of the year" that included the remark "they had got rid of all travel- ers" must be taken as no more than a superficial reference to continuity of events during the late September-early October period of 1978. Thomas found a separate phase of this conversation so "hard to remem- ber" that he could not actually testify to use of the word "enemies" by Smith. A final aspect of Thomas' witnessing dealt only with a still subse- quent telephone call made to him by Smith, concerning available infor- mational sources with respect to the then-pending unfair labor practices charge. In a related vein, Smith's answer that to his knowledge the two individuals (including Valenzuela) who "left the employ of Thomas Me- chanical" at the end of September 1978 were not "replaced by anyone" cannot be taken as more than casual opinion, because the essential mean- ing of replacing or replacement in labor relations parlance is fraught with artful distinctions and involves matters most peculiarly within an employ- er's knowledge. 9 The considerable attention given to travel card handling procedures warrants only passing comment. It arose and caused testimony largely be- cause Valenzuela tied it into workings of the hiring hall. I find Smith's thorough explanation of the subject to be authoritatively sincere, and de- cline further discussion of the circumstances whereby Valenzuela's travel card was reissued to his home local. PLUMBERS, LOCAL 412 717 from Painter, who actually engaged in the fast breaking function of matching employer requests with entitled registrants. It is also noteworthy that, while Smith does not minimize his disgust with Valenzuela's past criminal record, there is no evidence that this was an influencing factor towards job opportunities. Notably too, Valenzue- la's personal situation was briefly explained by Pearson to Smith over a year earlier, and brought no particular reaction at the time. For these reasons, I find that no ar- bitrary or invidious considerations touched the situation. The case is fundamentally one of a person seeking to hurdle established institutional constraints as represented by the 3-year transfer rule, and permiting his disappoint- ment to manifest as deception. I find Smith to have acted no more and no less as would be expected of one in his instrumental role as primary official of an important union local, and, in the midst of his myriad interpersonal contacts, to have confined himself to explaining member- ship avenues while commenting only innocuously about on-the-job realities over which he had no control. A final observation is that the "eligible for rehire" list which Smith reportedly received as early as December 1978 was, as to Valenzuela, paled by a much larger issue. It was whether and what members would be barred from further employment with the important Stearns-Roger contracting firm because of arguably punishable work stoppages, leading to a resolution process that involved intense meetings both locally and in Washington, D.C. Overall, there is a failure of proof on all aspects of the complaint. Accordingly, I render a conclusion of law that Respondent has not violated the Act as alleged, and issue the following recommended: ORDER' ° The complaint is dismissed in its entirety. '0 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, and recommended Order herein shall, as 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.