Laborers and Hod Carriers Union, Local 652

LABORERS AND HOD CARRIERS UNION, LOCAL 652 43 housemen and Helpers of America , or any other labor organization, except to the extent .that this right may be affected by an agreement in conformity with Section 8(a)(3) of the Act. TECHNICAL TAPE CORPORATION, AND W. RALSTON AND CO ., INC., Employer. 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. Laborers and Hod Carriers Union, Local 652, AFL-CIO and Jimmie I. Davis and Hood-River-Neill, a Joint Venture and International Hod Carriers' Building and Common Laborers' Union of America, Parties to the Contract. Case No. 21-CB- 1544. January 5, 1962 DECISION AND ORDER On February 14, 1961, Trial Examiner Eugene K. Kennedy issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent 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 Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report, together with a supporting brief, while the General Counsel filed a brief in support of his position. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Mem- bers Leedom and Brown]. 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. The Board I has considered the Inter- mediate Report, the exceptions z and briefs, and the entire record in this case, and hereby concludes, for reasons hereinafter stated, that the complaint should be dismissed in its entirety, contrary to the recommendations of the Trial Examiner. 3 The Respondent 's request for oral argument is denied as the record, including the exceptions and briefs , adequately presents the issues and positions of the parties 0 We find no merit in the Respondent's exception to the Trial Examiner's finding that the Employer Is engaged in commerce within the meaning of the Act. The record shows that the Employer, a joint venture, was organized to install a pipeline in California for the Southern California Gas Company and' Southern Counties Gas Company, for which it received in excess of $1 million The record further shows that each of these gas com- panies purchase goods and materials In excess of $50,000 annually from out-of-State sources , and that each has an annual gross business volume in excess of $250,000. Accord- ingly, we find that the Employer is engaged in commerce, and that it will effectuate the policies of the Act to assert jurisdiction herein Secnions Mailing Service, 122 NLRB 81. 135 NLRB No. 7. 44 DECISIONS OFWATIONAL LABOR RELATIONS BOARD The Trial Examiner found that the. oral agreement between the Respondent Union and the Employer establishing an exclusive hiring arrangement violated Section 8(b) (1) (A) and (2) of the Act because it did not provide the "safeguard" provisions required by the Board's decision in its Mountain Pacific case.' He further found that the Union, in enforcing the hiring arrangement found to be unlawful, re- fused to clear-employee Davis and thus caused the Employer to dis- criminate against Davis within the 'meaning of Section 8(a) (3) of the Act, resulting in the loss of his job, and that the Union thereby .violated Section 8(b) (2) and (1) (A) of the Act. There is no basis, aside from the failure to meet the Mountain Pacific standards, for finding the oral hiring agreement here in issue unlawful. Subsequent to the issuance of the Intermediate Report, the Supreme Court handed down its decision in Local 357, International Brother- hood of Tearzsters, etc. v. N.L.B.B.,4 in which it held, in effect, that a hiring agreement cannot be found unlawful solely because it fails to include the Mountain Pacific safeguards. Accordingly, we find in accord "with"the Court's decision, but contrary to the Trial Examiner, tliat -the oral hiring agreement' was not unlawful. As for the situation involving Davis, there is no evidence apart from =the existence of the hiring arrangement delineating why the Union 'refused to clear Davis. However, the record does show that the Em- ployer, directly hired Davis contrary to the terms of the oral hiring arrange'me'nt, that the Union maintained a referral list containing the names of -both members and nonmembers of the Union, and that the Union did not change its position with respect to Davis when he proffered his union initiation and other membership fees. These facts give'some'basis for an inference that the Union's refusal to clear Davis was related to his failure to go through the established hiring pro- cedures tnd not to his union or nonunion status. There is no evidence 'that would support a contrary inference. In any event, the record will not support a finding that the refusal to clear Davis'or to continue his employment was related to his union status or resulted from a dis- criminatory enforcement as to him of the oral hiring agreement. Thus, we further find, in the absence of any evidence of discrimi- natory motivation, that the application of the hiring arrangement to Davis with the result that he lost his job did not violate the Act as ,alleged. In view of the foregoing we shall dismiss the complaint. [The Board dismissed the complaint.] ' Mountain Pacific Associated General Contractors , Inc, et at., 119 NLRB 883. 365 US 667. LABORERS AND HOD CARRIERS UIVION, LOCAL 652 45 INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This matter was tried in Los Angeles, California, On August 29,'1960, before Eugene K. Kennedy, the duly designated Trial Examiner. The complaint alleges that Laborers and Hod Carriers Union, Local 652, AFL-CIO, herein called Re- spondent, violated Section 8(b) (1) (A) and (2) of the National Labor Relations Act, as amended, by causing discrimination in connection with the employment of one Jimmie Davis and by executing and enforcing an unlawful hiring contract. The answer of Respondent denies the commission of unfair labor practices and sets forth seven affirmative defenses, not specifically treated as, the findings and con- clusions made herein dispose of the issues raised by those affirmative defenses, which have record facts pertaining to such defenses. FINDINGS OF FACT 1. THE BUSINESS INVOLVED Hood-River-Neill is a joint venture, consisting of Hood Construction Company of Whittier, California, River Construction Corporation of Fort Worth, Texas, and J. P. Neill Co. of Dallas, Texas, here collectively designated as Employer. It was organized for the sole purpose of installing a pipeline between Placentia and Cuca- monga, California, for the Southern California Gas Company and Southern' Counties Gas Company. According to the stipulations of the parties the whole project will be completed within 12 months from August 1960 and the'joint venture will then terminate. However, the portion of the project in which the Respondent Union has territorial jurisdiction was completed in June 1960. Respondent will receive--in excess of $1,000,000 for the entire project. The two gas companies involved each purchase goods and materials valued in excess of $50,000 annually, which are transported directly from out of the State of California. In connection with the project in question, the gas companies purchased pipe valued in excess of $100,000, which was imported to the project directly from out of State for installation by the Employer. All three members of the joint venture are member of the Pipeline Contractors Association and are parties to an agreement between the Laborers' International Union and the Pipeline Contractors Association. This agreement is characterized in the record as the National Pipeline Agreement. It is found that the Employer is engaged in commerce and its activities affect commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Laborers and Hod Carriers Union, Local 652, AFL-CIO, is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The alleged unlawful agreement The General Counsel's theory of the unlawful agreement is based on an oral interchange made at the prejob conference held by representatives of the Employer and of Respondent in March 1960 . Included among those present at that confer- ence on behalf of the Employer was a Cecil Jernigan , who was the superintendent for the northern half of the work to be done by the joint venture , and a Ray Mendoza, chief business representative of Respondent. This prejob conference was held pursuant to a provision of the National Pipeline Agreement. II. (D) . At the pre-job conference, Employer should inform Union of the number of men whom he plans to bring with him into the area and have a mutual understanding with Union to enable Union to supply Employer with additional men who might be needed during the progress of the job.' The entire sections of the National Pipeline Agieement, relative to union recognition and security and job notification are as follows II. UNION RECOGNITION AND UNION SECURITY (A) The Employer hereby recognizes the Union as the sole collective bargaining agent for the purpose of collective bargaining In respect to wages, hours of employment 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At this prejob conference Jernigan credibly testified that there was an agreement reached whereby both Respondent Local and a sister local agreed to let the Employer bring in a minimum of five key personnel for each spread, who would be given union clearance, and the Employer agreed to call the unions, including Respondent, for the personnel in addition to the five that the Employer could bring on to the jobsite directly. Raymond Mendoza, the business representative for Respondent, testified as follows in connection with the prejob conference: My recollection is that the pre-job conference was called for the purpose of getting the San Bernardino local and our local together, and, as a convenience to the company, that they would have a steady pool of men that they could call the hall or use our facilities and that they would clear five or six men, whether union or non-union, they were going to bring them in and we would know who they would be and from thereafter when they needed our facilities they would call the hall, Mr. White would be in charge of the hiring and use our facilities. It is noted that Jernigan's version has the Employer bringing in a minimum of five men for each spread and Mendoza's testimony indicates the agreement con- templated the Employer could have five or six men cleared. Jernigan's recollection seems more definite and-on the basis of his testimony, taken together with that of Mendoza's, it is found that an oral agreement was made at the prejob conference, which provided that the Employer would call the Respondent exclusively for any personnel in excess of five. This agreement applied to employees who would ordinarily be within the work jurisdiction of Respondent Union. Based on the above testimony, it is found that this oral agreement created an ex- clusive hiring arrangement, which fails to provide for: (1) a nondiscriminatory and other conditions of employment for all of the employees covered by this Agreement (B) All employees covered by this Agreement, as a condition of employment, shall, commencing on the thirtieth (30th) day following the beginning of their respective employment or the effective date of this Agreement, whichever is the later, acquire and, for the duration of this Agreement, maintain, membership in the Union This provision shall not apply in any state where such a requirement for continued employ- ment is prohibited by law. (C) That Employer shall be the sole judge as to the competency of any employee and shall have the right to discharge men. (D) That Employer may employ men direct and once a man is employed, he may continue to work for Employei for as long as Employer elects to keep him. At the pre-job conference, Employer should inform Union of the number of men whom he plans to bring with him into the area and have a mutual understanding with Union to enable Union to supply Employer with additional men who might be needed during the progress of the job. (E) That Employer shall have the right to keep men who are, in his opinion, key or specialized in Employei's work in his employment on all work throughout the territory covered by this Agreement. - (F) There shall be no non-working steward or stewards. The Union may select one of Employer's employees to act as steward for the Union. Such man shall perform his work for the Employer the same as any other worker, and shall not be entitled to any extra pay merely because he is acting as steward. Employer agrees to keep the steward advised as to Employer's needs for men, and the steward shall cooperate in procuring needed competent men (G) The Union shall not interfere with Employer's employees during the working hours except that the business representative of the Local Union shall have the right to visit jobs provided he does not interfere with the progress of the work III JOB NOTIFICATION AND ENFORCEMENT (A) Employer agrees to notify Union of jobs obtained by Employer, describing the location, size and length of the proposed pipe line and the proposed starting date (B) Employer and Union shall hold a pre-job conference so that the start and con- tinuation of the work may progress without interruption, and Union's representatives at such conference shall be authorized by Union to represent Union for the entire area covered by the job. (C) The Union agrees to send a copy of this contract to each and every one of its Locals having jurisdiction over any area in which Employer becomes obligated to con- struct a pipeline, and agrees that the terms of this contract shall be recognized by such Local, so that industrial peace will not be disturbed and so the Employer may perform Employer's work efficiently and continuously LABORERS AND HOD CARRIERS UNION, LOCAL 652 47 basis for referral; (2) the Employer's right to reject applicants for employment; and (3) notice to employees as to the manner in which the exclusive hiring arrangements shall function. Because the agreement lacks safeguards according to Board prece- dent it is unlawful. Mountain Pacific Chapter of the Associated General Contrac- tors, Inc.; the Associated General Contiactors of America, Seattle Chapter, Inc.; and Associated General Contractors of America, Tacoma Chapter, 119 NLRB 883. The experience of Jimmie Davis set forth below sets to rest any doubt that this agreement was discriminatory in practice. It also makes clear that in the case of Respondent the oral agreement reached at the prejob conference superseded certain written provisions of the National Pipeline Agreement set forth in full (see foot- note 1, supra), providing for the right of the Employer to hire directly. B. The alleged discrimination against Jimmie Davis On or about April 30, 1960, a Saturday, Jimmie Davis asked Foreman Choate for a job with the Employer, relating that he had several years of pipeline experience. He was informed that he could be employed if he got cleared by Respondent. On the following Monday he returned again to the Employer seeking employment and James Turner, material man for the Employer, was instructed by Superintendent White to call the Union to get a clearance for Davis.2 At this time Turner talked to a Rodger Fisher, one of the business representatives for Respondent, and was informed that the Employer was "over 10 percent" and that Davis could not obtain clearance at that time.3 Fisher also informed Turner that if four or five men on the waiting list were hired out of the hall, Fisher might consider clearing Davis. At Turner's suggestion Davis returned the following Friday and Turner at the direction of Superintendent White again called Fisher about getting Davis a clearance to work. Fisher informedd Turner that it would be all right if Davis worked on the weekend and to have Davis report to him on Monday to be cleared. Fisher also coupled this acquiescence in clearing Davis with the remark that it would be all right for Davis to go to work on Friday if the job steward did not object too much. It is noted that the Employer obtained three or four men between Monday and Friday through Respondent's hiring hall, and that when Davis started to work on Friday, Respondent's job steward asked Davis for his clearance. Davis worked Friday and Saturday and when he went to work Monday, Job Steward Munoz told Davis that he would have to get 'a clearance and for him to go to the union hall to do so. Davis then informed Foreman Choate who told him to go to the union hall, saying, "Well, go ahead and go, we'll just get all of this mess out of the way once and for all." At the union hall Fisher told Davis that he was going to have to call Raymond Mendoza about a clearance for Davis and that he should finish working on Monday and to come in and see him on Tuesday morning. Davis did work the rest of Monday and went back to see Fisher on Tuesday, when he was told by Fisher that he could not obtain clearance. Although requested to do so, Fisher would not give Davis a reason for refusing the clearance. Davis returned to the Employer and informed Turner, Superintendent White, and Foreman Choate about his failure to obtain clearance and did not resume working. In view of his attempts to obtain work and the expressed views of the Employer with respect to the necessity for clearance, a specific request by Davis to the Employer to resume work in order to establish discrimination was not necessary , as under the circumstances it would have been a futile act which as a matter of law Davis was not required to dot After Davis was refused clearance by Fisher on Tuesday morning, he attempted to see Mendozabut without success. The main conflict in this record stems from the testimony of Turner and Davis as opposed to that of Business Representative Fisher. Fisher's testimony contains a statement wherein he says that he had quite a few laborers working who had no clearance but he was unable to name anyone except Turner who was not doing 2 The Respondent made an issue at the hearing with respect to Turner 's power to act for Respondent in calling the Union for personnel. The record reflects that at the prejob conference Superintendent White was the individual designated to call the Union as part of the oral hiring arrangement. However, Jernigan, a superintendent as was White, testi- fied that it was common practice to delegate this function to someone in the office. Accord,- ingly, it is found that it is immaterial under the issues of this complaint, whether White called the Respondent directly or through his appointed agent, Turner 3 This reference to "10 percent" reflects an apparent union computation as to how many men of the total could be brought in directly by the Employer and how many would have to be obtained through the union hall Daniel Iiainni Drayage Company. Inc, 84 NLRB 458, 460 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work within the jurisdiction of the Laborers' Union. Fisher also testified that he told Davis that Davis could work anytime without a clearance . This testimony is rejected as implausible. Fisher remembers being called by Turner who told him that he had a boy and that Turner asked Fisher to come out on the job and that Fisher told him he did not work on the weekends. Fisher said that he did not get out to the job until May 10 and that White , the superintendent, wanted to see him on the job. Fisher's denial that Turner asked him for a clearance for Davis or other laborers is not credited . In the context of a number of evasive answers this denial by Fisher seems incredible when also measured against the lack of any reason ap- pearing in te record why Turner should give testimony against Respondent . Davis' affidavit of May 11, 1960, given do the Board omits a statement which he subse- quently included in a July affidavit to the effect that Fisher told him that if he saw him back on the job that he would shut the whole job down on Tuesday, May 10. The failure of Davis to state this in his initial affidavit in support of the unfair labor practices charge appears curious. However, since Turner's fully credited testimony supports that of Davis on the material issues relative to the failure of Davis to ob- tain clearance, it is found that the omission of this statement in the May affidavit does not impair the credibility of the testimony given by Davis on the material issues litigated . Because of the evasive impression obtained from Fisher's testimony, it is credited only to the extent it is consistent with the above -related findings. In summary, based on the foregoing , it is found Respondent caused the Employer to discriminate with respect to the employment of Jimmie Davis by withholding clearance, thereby causing his loss of employment beginning on May 10, 1960, and that this stemmed from the enforcement of the hiring arrangement found above to be unlawful. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Union described in section III, above , occurring in connection with the operations of the Employer set forth 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 com- merce and the free flow thereof. V. THE REMEDY Having found that Respondent engaged in certain unfair labor practices within the meaning of Section 8 (b)(2) and (1)(A) of the At, it will be recommended that it be ordered to cease and desist therefrom and to take certain action designed to effectuate the policies of the Act. Specifically, it will . be recommended that the Union be ordered to cease and desist from giving effect to the illegal exclusive hiring 'arrangement set forth above, and from causing or attempting to cause the Employer to discriminate with respect to employment status of Davis, and to make Davis -whole for loss of wages. The complaint alleges without contradiction that.the whole project was scheduled to be completed within 12 months from mid-1960. The credited and uncontra- dicted testimony of Superintendent Jernigan establishes that the work of the Em- ployer as far as Respondent Union is concerned was completed as of June 1960. .Because the nature of the violation here involved is in serious contravention of the rights guaranteed employees in Section 7 of the Act and because it reflects a potential of widespread' unlawful deprivation of employment, it will be recommended that Repondent be ordered not to enter into any unlawful agreement with any employer or cause any discrimination with respect to any employee, including Davis, the Charging Party. The General Counsel has asked for a reimbursement type (Brown-Olds) remedy. Although there is no direct evidence that any employee paid any moneys to Re- spondent during the pendency of the unlawful hiring arrangement, the Board has expressed the view that such arrangement is inherently coercive in its effect in causing -payment of moneys to a union,5 and it will be recommended that any employees referred by Respondent for work with the employer be reimbursed for any moneys 5 Local 401, international B)otherhood of Boilermakers , Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, at at (M A. Roberts, et at.. d/ b/a M. A. Roberts & Com- 'pany), 126 NLRB 832; Local Union No 450, International Union of Operating Engineers, AFL-CIO (Procon ), 129 NLRB 937 ; Local 792, International Association of Bridge, Struc- tural and Ornamental Iron Workers, AFL-CIO ( Gridwall Company and Glide Windows, Inc.), 128 NLRB 1259; United Association of Journeymen & Apprentices of Plumbing & Pipefitting Industry of the United States and Canada , Local 231, AFL-CIO (J. S. Brown- E F. Olds Plumbing & Heating Corporation ), 115 NLRB 594 INCA MFG. DIV., PHELPS DODGE COPPER PRODUCTS CORP. 49 paid to Respondent for the period beginning 6 months prior to the filing of charges in this matter. With respect to the employees hired directly by the Employer I find they were not directly affected by the terms of the agreement giving Respondent an exclusive hiring arrangement and that it would be inappropriate to recommend a reimbursement of moneys to such employees . The Board has determined that its reimbursement remedy need not be applied in every situation where employees have been unlawfully encouraged to join a union. Here, although some psychological effect may have resulted from the five exempt employees obtaining union clearance, I find these employees were not obligated to pay any moneys to Respondent as a condition of working for the Employer, and any clearance was dictated by the Em- ployer and not Respondent , and Respondent had no control over their employment .0 CONCLUSIONS OF LAW 1. The Employer is engaged in commerce within the meaning of the Act. 2. Laborers and Hod Carriers Union, Local 652, AFL-CIO, is a labor organization within the meaning of the Act. 3. By causing the Employer to discriminate against Jimmie Davis in violation of Section 8 (a)(3), the Respondent has engaged in unfair labor practices within the meaning of Section 8 (b) (2) and (1) (A) of the Act. 4. The hiring arrangement entered into at the prejob conference between the Employer and Respondent was a violation of Section 8(b)(1)(A) and (2) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of the Act. [Recommendations omitted from publication.] ° Chun King Sales Inc ., 126 NLRB 851. Here there was an illegal union-security agree- ment but the Blown -Olds reimbursement was not applied because the illegal contract did not condition intial employment on union membership or in any way grant the Union control over the hiring of employees. In the case at bar the same considerations would seem to be present with respect to the five employees selected by the Employer. Inca Manufacturing Division , Phelps Dodge Copper Products Corporation and International Union of Electrical, Radio & Machine Workers, AFL-CIO, Local 963. Case No. 13-CA-4055. January 5, 1962 DECISION AND ORDER On October 30, 1961, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. The Respondent also filed limited exceptions and a brief supporting the Trial Examiner's recommended dismissal of the complaint. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the 135 NLRB No. 13. 634449-62-vol. 135--5