Local Union No. 49, a/w Int'l Union of Operating Engineers

LOCAL 49, A/W INT'L UNION OF OPERATING ENGINEERS 399 All sales persons (including furniture assemblers), stock selectors,° markers, packers, cashier-wrappers, will-call employees, hostess- receptionists, telephone mail-order employees, office clerical em- ployees,' P.B.X operators, elevator operators, and janitors,' employed by the Employer at its Oakland, California, retail furniture store, excluding upholstery and seamstresses foremen and forewomen, up- holstery, drapery, and window shade cutters and estimators, custom upholsterers, drapery, window shade, and Venetian blind installers, lambrequin makers, both male and female, slipcover cutter-fitter and seamstresses combination, female, upholstery drapers and window shade seamstresses, furniture handlers, shipping and receiving clerks and working foremen, shipping and receiving clerks and working foremen in furniture warehouses; employees of cabinet shop, finish shop, and appliance shop, delivery and dispatch employees platform men and plant clericals who work in the warehouse-service buildings, interior decorators,' stationary engineer and maintenance employees, attendants and/or watchmen-guards, and all supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] e The parties stipulated to the exclusion of one selector because he is not an employee of the Employer. This selector works in the carpet shop, which the Employer has leased out, in the warehouse-service building . We shall exclude this selector. 7 Only those office clericals that are on the Oakland store payroll are included. 8 We shall exclude those janitors who are also guards within the meaning of the Act. 9 The parties agreed to exclude interior decorators as technical employees. Local Union No. 49, affiliated with International Union of Oper- ating Engineers, AFL-CIO and Associated General Con- tractors of Minnesota, Inc. Case No. 18-CB-134. October 21, 1960 DECISION AND ORDER On May 31, 1960, Trial Examiner Sidney Lindner issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Rodgers and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The 129 NLRB No. 48. 400 DECISIONS OP NATIONAL LABOR RELATIONS BOARD rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations, with the following modifications. We agree with the Trial Examiner that the Respondent Union violated Section 8(b) (2) and 8 (b) (1) (A) of the Act. In so finding, we deem it unnecessary to rely upon the episode occurring on Novem- ber 18, 1959, involving the surrounding of Krumviede's machine by a group of men, some of Whom were wearing Local 49 buttons, or to consider whether the Respondent Union's conduct as set forth below amounted to an attempt to cause any employer other than Park to discriminate against Krumviede. In our view, the statements made by Gough, the Respondent Union's president, to Carlson, president of Park, and to Norby, supervisor of Park, supply, in and of themselves, sufficient Warrant for sustaining the complaint. This is so because such statements, set forth below, when interpreted in the context of the record as a whole, satisfy us that the Respondent Union threat- ened Park with the use of economic pressures if Park did not dis- charge Krumviede and place a member of Local 49 in Krumviede's place and that Krumviede's leaving the jobsite was a direct result of such threats. As set forth in more detail in the Intermediate Report, the record shows that on November 11, 1959, Respondent Union's president, Gough, stated to Walter E. Carlson, president of Park, that "unless that man [Krumviede] is moved we won't be responsible for what happens out there." On the same day, Gough stated to Jim Norby, one of Park's supervisors, that Krumviede was not going to work on the rig. And, on November 12,1959, Gough, in response to suggestions by Walter E. Carlson for solution of the problem told Carlson that it is "better to shut down [the] job and let that man go." Finally, on November 16, 1960, in a phone conversation with Carlson, Gough said : "I thought I gave you 3 days to get rid of that man," and despite Carlson's protestations that compliance with this request would be violative of the law, Gough replied that he wasn't interested in that or "the heck with that noise." As the foregoing conduct of the Respondent Union's president clearly implied that the Union was prepared to resort to economic retaliation if the demand for Krumviede's removal were not complied with, we hold, accordingly, that the Respondent Union caused, or at- tempted to cause, Park Construction Company 1 to discriminate 'We neither adopt nor ,pass upon the Trial Examiner's apparent finding that the Respondent Union' s economic pressures were applied not only against Park but also against Schumacher Nor do we adopt or pass upon his gratuitous statement that the mere requesting of an employer to engage in conduct violative of Section 8(a) (3) of the Act amounts to no more than an attempt to persuade and hence is not violative of Section 8(b) (2). Of American Bakery and Confectionary Workers International Union, AFL-CIO, Local No. 173 ( Continental Baking Company, Inc.) 128 NLRB 937. LOCAL 49, A/W INT'L UNION OF OPERATING ENGINEERS 401 against Krumviede because he was not a member of Local 49, thereby violating Sections 8 (b) (2) and 8 (b) (1) (A) of the Act 2 ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Local Union No. 49, affili- ated with International Union of Operating Engineers, AFL-CIO its officers, representatives, agents, successors, and assigns, shall : 1. Cease and desist from: (a) Causing or attempting to cause the Park Construction Com- pany to discriminate against any employee in violation of Section 8(a) (3) of the Act. (b) In any like or related manner restraining or coercing employees of Park Construction Company in the exercise of rights guaranteed in Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment, in accordance with Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Make Berton Krumviede whole for the loss of pay suffered by reason of the discrimination against him in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (b) Notify Berton Krumviede, and Park Construction Company in writing that it has no objeciton to the hiring of employees by the said Company without regard to membership or nonmembership in Local Union No. 49, affiliated with International Union of Operating Engineers, AFL-CIO. (c) Post at its business office and meeting hall, and at all other places where notices to members of the Respondent Union are cus- tomarily posted, copies of the notice attached hereto marked "Ap- pendix." 3 Copies of said notice, to be furnished by the Regional Director of the Eighteenth Region, shall, after being duly signed by the representative of the Respondent Union, be posted immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. 3 Looni 610, United Brotherhood of Carpenters, etc. (Cameron Store Fixtures), 122 NLRB 476 3In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order " 586439-61-vol. 129-27 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Deliver to the Regional Director for the Eighteenth Region signed copies of said notice in sufficient number to post at all construc- tion sites of the Park Construction Company, the Company being willing. (e) Notify the Regional Director for the Eighteenth Region in writing within 10 days from the date of this Order what steps they have taken to comply herewith. APPENDIX NOTICE TO ALL MEMBERS OF LOCAL UNION No. 49, AFFILIATED WITH INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO 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, as amended, we hereby give notice that : WE WILL NOT cause or attempt to cause the Park Construction Company to discriminate against any employees in violation of Section 8(a) (3) of the National Labor Relations Act, as amended. WE WILL NOT, in any like or related manner, restrain or coerce employees of Park Construction Company in the exercise of their right to self-organization, to form, join, or assist labor organiza- tions, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as author- ized in Section 8(a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. WE WILL make whole Berton Krumviede for any loss of pay he may have suffered by reason of discrimination against him. LOCAL UNION No. 49, AFFILIATED WITH INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) 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 STATEMENT OF THE CASE This proceeding, with all parties represented, was heard before the duly designated Trial Examiner in Minneapolis , Minnesota, on March 14, 1960, on complaint of the General Counsel as amended at the hearing, and on the answer thereto of Local LOCAL 49, A/W INT'L UNION OF OPERATING ENGINEERS 403 Union No. 49, affiliated with International Union of Operating Engineers, AFL- 010, herein called Respondent Union. The issue litigated was whether Respondent Union by its officer and agent, L. J. Gough, attempted to cause Park Construction Company and M. J. Schumacher to discriminate in regard to the hire and tenure of employment of employee Berton Krumviede, in violation of Section 8(a)(3) of the National Labor Relations Act, as amended 61 Stat. 136, 73 Stat. 519, herein called the Act, and did thereby engage in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act. The motion to dismiss, upon which ruling was reserved at the conclusion of the hearing, is disposed of by the following findings, conclusions, and recommendations. Upon the entire record, and my observation of the witnesses and upon consider- ation of the legal memoranda submitted by counsel for the General Counsel and for the Charging Party, I hereby make the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYERS INVOLVED Park Construction Company, a Minnesota corporation with its principal place of business at Fridley, Minnesota, is engaged in the construction of highways. During 1959 Park in a joint venture with Arrowhead Engineers & Contractors, Inc., was awarded a contract by the State of Minnesota, Department of Highways, in an amount in excess of $2,000,000 to provide materials and perform the necessary work and labor for the construction of an interstate highway located in Minnesota. Ninety percent of the total, dollar volume under the aforementioned contract is allocated from Federal funds. Sixty percent of said contract was to be per- formed by Park. M. J. Schumacher, an individual proprietorship, whose principal place of business is Eau Claire, Wisconsin, is engaged in the excavating business and the leasing of cranes and draglines to heavy construction contractors. During the past 12 months, Schumacher's income was $70,000 of which 60 to 70 percent was derived from the rental of equipment to contractors outside the State of Wisconsin. Schumacher's remaining business comes from contractors situated in the State of Wisconsin who were engaged in highway construction work. During this same period Schumacher purchased four cranes at a cost of between $120,000 and $130,000. One crane, at a cost of approximately $47,000, was purchased in Minnesota, the others, while purchased in Wisconsin, were manufactured in Minnesota and shipped to Wisconsin for sale. I find in accordance with the standards set forth by the Board in Siemons Mailing Service, 122 NLRB 81, that Park Construction Company and M. J. Schu- macher individually and collectively are engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Local Union No. 49, affiliated with international Union of Operating Engineers, AFL-CIO, pis a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Setting and issues In the course of performing its part of a contract with the State of Minnesota, Department of Highways, for the construction of a highway in New Brighton, Minnesota, Park Construction Company, in November 1959, entered into a written agreement with M. J. Schumacher, by the terms of which the latter agreed to furnish Park a 21/2-cubic-yard American Dragline with fuel and supplies including mats if required, and fully operated for a stipulated sum per hour. Schumacher's equipment together with crane operator Berton Krumviede, arrived at the jobsite on the afternoon of November 10, 1959, to prepare for and begin performance of its contract. Krumviede was a member in good standing of Local 139, International Union of Operating Enginers, with headquarters in Eau Claire, Wisconsin. Prior to his arrival on the Park jobsite, Krumviede did not do anything to transfer his member- ship into the Respondent Union. While employed on the Park job, Krumviede was to continue to receive his pay from Schumacher, but he was to receive orders on the construction work from Park's superintendent of construction, Jim Norby. The latter, in addition to directing and controlling Krumviede's work, could remove him from further work on the Park job and have him report back to Schumacher if he was dissatisfied with his performance. 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Out of this situation arose the chief issue of the complaint: whether L. J. (Pat) Gough, president of Respondent Union, caused or attempted to cause Park and/or Schumacher in violation of Section 8(a)(3) of the Act to discriminate and lay off Krumviede because he was not a member of Respondent Union. B. The facts On November 11, Krumviede was on the Park jobsite putting the boom on the 'crane, assisted by an oiler, a member of Respondent Union, when Gough approached them and asked Krumviede if he was Schumacher. Krumviede replied that he was Schumacher's crane operator. Gough told Krumviede several times that he was not going to operate the crane. Walter Carlson, president of Park, testified that Gough called him on the tele- phone on November 11 and inquired "what we were trying to get by with in allow- ing a Wisconsin operator on that American Dragline." Gough also told Carlson "that unless that man is moved we won't be responsible for what happens out there." When Carlson asked if that was a threat, Gough repeated the statement. Jim Norby testified that he was on the jobsite on November 11 sitting in a pickup truck with Jack Williams, another Park superintendent, when Gough approached them and asked why Park had to go to Wisconsin to hire a rig when there were plenty of rigs in Minnesota. Norby told Gough that Park goes where it gets the best deal from the contractor. Gough told Norby that the Wisconsin operator was not going to work on the rig and then left. Carlson testified that in another conversation with Gough on or about November 12 he offered some suggestions regarding the future tenure of employment of Krum- viede on the Park job. Carlson also told Gough there were 30 to 40 men on the job at that time and since Park had 2 years under its contract to complete the job, it could shutdown anytime it wanted to. Gough's comment was "better to shut the job down and let that man go." Carlson also testified that in a third telephone conversation with Gough on or about November 16, the later said "I thought I gave you 3 days to get rid of that man." Carlson protested and noted that to comply with such demands would be contrary to existing law. Carlson recalled that Gough's reply was either that he was not interested in that or "the heck with that noise." At about 7 a.m. on November 18 Krumviede drove to the jobsite in his pickup truck and found 20 to 25 men, some of whom were wearing Local 49 buttons on their clothing, gathered around the crane. Norby came by and asked Krumviede if he wanted to operate the crane. Krumviede replied that he was not going to try to operate it with that many men around. Krumviede and Schumacher left the jobsite and went to the union hall to see Gough. Krumviede told Gough he wanted to "sign up" so that he could work on the Park job. Gough said, "No." Schumacher testified he inquired if Krumviede could not get a withdrawal card from Local 139 and transfer into Local 49. Gough's reply was "No." Gough mentioned that there were many men out of work in Minneapolis and he would not permit a Wisconsin man in to work. Gough also said that since it was winter he did not want Krumviede ,there. If it had been in the summer it would not have made too much difference. Krumviede returned to the Park job on the morning of November 19 and has since worked continuously. He never applied for a transfer of membership from Local 139 to Respondent Union. The record also reveals that the oiler working on the crane with Krumviede and the second shift crew on the same crane were members of Respondent Union. Gough testified that when he saw Krumviede on the Park job for the first time on the morning of November 11 he asked the latter if he had cleared -through the Local Union. Upon Krumviede's negative reply Gough told him he was out of Local 139s jurisdiction and he should "clear" before going to work. When Krum- viede said he was going to be the operator on the crane, Gough admittedly created a doubt in his mind when he remarked, "maybe you are and maybe you ain't." Gough denied that he told Norby he would have to remove Krumviede from the job. He admitted however, that while they were discussing the rental of a rig from a Wisconsin subcontractor, he said "well, you could at least, on a project like that try to get an operator from our local union." Gough also admitted asking Norby to try to use Respondent Union's members on the job. Gough admitted calling Carlson on the telephone, arguing back and forth with him, and asking if he could not see fit to use a Local 49 operator on the rented rig. He categorically denied that he asked anybody to take Krumviede off the job. He LOCAL 49, A/W INT'L UNION OF OPERATING ENGINEERS 405 admitted however that Respondent Union tries to take care of its members first, and it does not like to see men come into Minnesota from neighboring States, to go to work at a time when Local 49 members are idle, even though he has to "put up with it." With regard to the visit of Schumacher and Krumviede to the union hall on No- vember 18 and the ensuing conversation, Gough testified that Schumacher wanted him to take Krumviede into Local 49. Gough stated he told Schumacher that Krumviede would have to meet certain International constitution requirements dealing with transfer and clearance cards before he could do anything. I do not accept Gough's denials. It is clear based on his admissions that Gough's primary interest, so far as the Park job was concerned, was to obtain employment for Respondent Union's members particularly in the wintertime when many of them are idle. Indeed, Gough also admitted asking Norby to put a Local union operator on the crane which had been brought in from Wisconsin. I find based on the testimony of Carlson, Norby, Williams, Krumviede and Schumacher which was straightforward and supported by convincing detail, and which I credit, that Gough engaged in the conversations as testified to by them and made the statements attributed to him. C. Conclusions During the course of the hearing a question arose regarding the status of Krum- viede's employment. As found above Krumviede was hired and paid by Schumacher to operate a crane which Schumacher as a subcontractor was renting to Park. I have also found that Krumviede was under the direction and control of Park's supervisors on all matters relating to construction while he was operating the crane on the Park project, and if it appeared to them that Krumviede was not perform- ing satisfactorily, by delegation of authority from Schumacher, they had the power to remove him from the job. Thus, under applicable Board precedents 1 Krumviede can be deemed to be Park's employee for the purpose of this proceeding, even though he was paid by Schumacher.2 Be that as it may, it is not essential in this proceeding to make a specific determination of Krumviede's employee status, for, as the General Counsel points out in his legal memorandum, Board decisions support the conclusion that a union can cause or attempt to cause an employer to discrimi- nate against an employee, notwithstanding that the employee is not an employee of that particular employer. A majority of the Board in Northern California Chapter, The Associated General Contractors of America, Inc., et al., 119 NLRB 1026, found the Union to have violated the Act by causing a contractor to terminate the contract of a subcontractor, thereby effecting the removal of the subcontractor's employees because of their nonmembership in the Union. It stated at page 1030 of its Decision: We consider ;t immaterial that no formal employer-employee relationship existed between AGC and Musser's employees. A defense, grounded on that fact, has no statutory support. . . . As the Board stated in the Austin case: 7 . the statute, read literally precludes any employer from discriminat- ing with respect to any employee, for Section 8(a)(3) does not limit its prohibitions to acts of an employer vis-a-vis his own employees. We find no authority, either in the policy of the Act or in any delineating provision of it, for holding that legal responsibility for a discrimination tending to encourage union membership is to be determined by the relationship actual or prospective between the employers involved. As we see it, the question of legal responsibility for such discrimination does not, and cannot be made to, depend upon whether an employer has, by reason of his business relationship with another employer, such "contractual control" over the employees involved as to render them his own, for all practical purposes. To us, the relevant questions are whether an employer had the power to effectuate the removal of employees, whether he proceeded to do so, and thus, as a result, whether he thereby caused a discrimination with 7 The Austin Company, 101 NLRB 1257, 1259. ' See Golden Age Dayton Corporation, 124 NLRB 916; United Insurance Company, 122 NLRB 911; G L Allen Company, 117 NLRB 1055. 2 The Board has held that the manner or method of payment is not decisive in deter- mining employee status See Serv-Us Bakers of Oklahoma, 122 NLRB 84; Krast Grades, et al., 121 NLRB 601. 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respect to their tenure of employment because of their union activities or lack thereof. . It is sufficient that the discriminatee be a member of the working class in general and that the "employer" be any employer who has any interest, direct or indirect, . . . over the terms of his employment. Respondent Union adduced testimony from Gough , and I have found above, that Krumviede returned to the Park job on November 19 and continued to work there after that date without interference by Respondent Union . In fact, the record reveals that Respondent Union did not contact either Park or Schumacher regard- ing Krumviede after November 19. In a somewhat similar factual situation, the Board in Local 432, Sheet Metal Workers International Association, et al. (Rountree Company ), 123 NLRB 1541 , held-"The serious nature of the Respondent 's unfair labor practice is not lessened by the fact that it did not persist in its efforts to secure the discharge of . . . There is no question based upon my findings above, that the object of Gough's conduct was to "cause or attempt to cause" Park and /or Schumacher to violate Section 8(a)(3) of the Act by laying off or otherwise discriminating against Krum- viede. I have also found that Gough made the threat to Carlson, "that unless that man is moved we won't be responsible for what happens out there ." Although a mere request of an employer to engage in conduct violative of Section 8(a)(3) of the Act amounts to no more than an attempt to persuade and hence is not vio- lative of Section 8(b) (2),3 the Board has held that when a union implements such request by resort to economic pressure , it constitutes an attempt to cause discrimi- nation within the meaning of Section 8(b) (2). See Local 432, Sheet Metal Workers International Association , et al. (Rountree Company), supra. Indeed, as the Board recently held in Northwestern Montana District Council of Carpenters' Unions, et al. (Glacier Park Company ), 126 NLRB 889 , "it suffices if any pressure or inducement is used by the Union to influence the employer." Upon the foregoing and the entire record I find that Respondent Union by the conduct of its president , Gough, violated the Act by causing and attempting to cause Park and Schumacher to discriminate against Krumviede. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of Park and Schumacher described in section I, above, have a close, intimate , and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that Respondent Union has engaged in certain unfair labor practices I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. I shall also recommend that Respondent Union reimburse Krumviede for the loss of 1 day's pay suffered by reason of the discrimination against him. Upon the foregoing findings of fact and upon the entire record in the case I make the following: CONCLUSIONS OF LAW 1. Local Union No. 49, affiliated with International Union of Operating Engineers, AFL-CIO, is a labor organization , within the meaning of Section 2(5) of the Act. 2. By causing and attempting to cause Park and Schumacher , employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act, to discriminate against an employee in violation of Section 8(a)(3) of the Act, the Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b) (2) of the Act. 3. By restraining and coercing employees in the exercise of rights guaranteed by Section 7 of the Act, the Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] $Denver Building and Construction Trades Council ; et al (Henry Shore), 90 NLRB 1768, enfd. 192 F. 2d 577 (C.A 10).