Dravo Corp.

DRAVO CORPORATION 57 bravo Corporation and Omer Fortin and Hoisting and Portable Engineers Local No. 4, International Union of Operating Engineers, Party to the Contract Hoisting and Portable Engineers , Local No. 4, International Union of Operating Engineers, and its business agent, Larry P. Salvucci and Omer Fortin and bravo Corporation, Party to the Contract. Cases Nos. 1-CA-3553 and 1-CB-724. Octo- ber 10, 1962 DECISION AND ORDER On June 20,1962, Trial Examiner Lloyd Buchanan issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in certain unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety as set forth in the attached Intermediate Report. There- after, the General Counsel filed exceptions to the Intermediate Report and a supporting brief and Respondents filed briefs in support of the Intermediate Report. 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 [Members Leedom, Fanning, 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 has considered the Inter- mediate Report and the entire record in the case, including the ex- ceptions and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. [The Board dismissed the complaint.] INTERMEDIATE REPORT AND RECOMMENDED ORDER The complaint herein (issued January 30, 1962; charges filed August 14 and 16, 1961 ) alleges that, since on or about March 1 , 1961 , the Company has violated Section 8(a)(3) and ( 1) of the National Labor Relations Act, as amended , 73 Stat. 519, by giving effect to a collective-bargaining agreement which requires union membership or clearance as a condition of employment , or discriminates against employees or applicants because of their nonmembership, and by giving effect to an arrangement ' or practice which requires or causes discrimination against em- ployees or applicants because of nonmembership in the Union, and also by dis- criminating against Fortin because of his nonmembership or the Union's refusal to employ him for employment ; and that the Union has violated Section 8(b)(1)(A) and (2 ) by maintaining and enforcing a collective -bargaining agreement described as above, by compelling the Company to employ only members of or persons approved by it, by maintaining and enforcing an arrangement or practice which requires the Company to discriminate against employees because of nonmembership in the Union, and by causing the Company to discriminate against Fortin because ' This term is here used inclusively and covers the alternative allegations concerning an oral agreement or understanding 139 NLRB No. 14 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of his nonmembership or because of the Union's refusal to clear him. The answers deny the allegations of violation. A hearing was held before Trial Examiner Lloyd Buchanan at Fall River and Boston, Massachusetts, on March 23 and 29, 1962. Pursuant to leave granted to all parties, briefs have been filed by the General Counsel, the Company, and the Union, the time to do so having been extended. This is one of a series of three cases (each is a consolidated case), the other two involving Daniel O'Connell's Sons, Incorporated [139 NLRB 51] and Coleman Bros. Corporation [139 NLRB 3931. In addition to the respective employer respondents each of the three cases names as respondents the Union herein and its business agent, and Fortin as the Charging Party. The cases were heard at approxi- mately the same time, being scheduled for and opening on successive days. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT (WITH REASONS THEREFOR) 1. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED It was admitted and I find that the Company, a Pennsylvania corporation with principal office and place of business in Pittsburgh, Pennsylvania, has been engaged as the general substructure contractor at a jobsite in Fall River, Massachusetts; that it annually purchases and causes to be transported in interstate commerce large quantities of supplies and materials, receives such to the extent of more than $1,000,000 directly from points outside the Commonwealth of Pennsylvania, and provides services valued at more than $50,000 in States other than the Common- wealth of Pennsylvania; and that it is engaged in commerce within the meaning of the Act. It is admitted and I find that the Union is a labor organization within the meaning of the Act. II. THE UNFAIR LABOR PRACTICES Fortin is and has been since 1956 a member of Local 98 of this same international union, the Operating Engineers That local's jurisdiction lies in the Worcester area and does not include the Fall River site, which lies within the jurisdiction of the Union herein, Local 4. He is a licensed Massachusetts operator, has operated various machines, including cranes, shovels, bulldozers, front end loaders, graders, and asphalt rollers, and has done a great deal of repair work on machines. His license does not itself call for or indicate ability to operate any kind of machine; specifically, he is not licensed or qualified to operate steam machinery on a steam derrick boat, this requiring a steam license, although he can operate a machine which is run by a diesel engine. To explain an application which he filed with the Company for a job as crane operator only, Fortin testified that at the end of 1960 or the beginning of 1961 he saw only cranes on the job. Told by Parker, the job superintendent, to fill out an application, he went to the office, gave the necessary information to a man at the desk there, and said that he was a crane operator. Before Fortin testified, it was noted that the card (Fortin's impression was that the card was larger than the one shown him at the hearing) had been filled out by the office manager, not by Fortin. The latter now admitted that his prior statements in an affidavit that he had "filled out an application" and "put down 98" as the union of which he was a member were incorrect. This alleged notation concerning his union affiliation was connected with Fortin's testimony that he was asked to which local he belonged. (One can understand that such statements, without sufficient investigation to test their re- liabiliy, would prompt issuance of a complaint.) I credit the testimony by Mc- Donough, the office manager, that the Company had never used any form which included a question concerning a man's union affiliation, and his denial that he ever asked an applicant whether he was affiliated with the Union. Fortin testified to a second conversation with Parker, in January or possibly February 1961, in the course of which the latter allegedly said that they "decided to let Local 4, business agent of Local 4, do the hiring. `It's a good way to keep out of trouble"' (We shall briefly refer, infra, to the arrangements made by the Union and the Company, and the latter's hiring methods.) Not only was hiring not left to the Union, but I do not credit Fortin's testimony that Parker said this. The latter could testify only that he had not recognized Fortin, and recalled no conversation with him concerning the Union's business agent. DRAVO CORPORATION 59 Whatever Fortin's explanation for his reference to experience on cranes, he told the Company of such experience only. But such limitation is not relevant unless the Company relied on the application as filed; and it does not appear that men were called to work on the basis of filed applications. In explaining the Company's freedom of action, Auhl, its operations manager, testified that men were hired "at the gate." While not necessarily excluding the calling of men who had filed appli- cation, this does not itself suggest such a practice. The application itself thus does not explain any failure to call Fortin, and it therefore casts no light on the issue of discrimination except possibly as an admission by him that he was not in fact qualified to operate other machines. But aside from the fact that the Com- pany is not shown to have relied on any such admission or on his application since it hired at the gate, it is clear that Fortin did not at any time intend such an ad- mission, maintaining as he did that his was a long and varied experience. Neither is the Union's knowledge of his experience with respect to land operatons or its belief that it was limited here in issue. The Union's position is not that it refused to clear or refer Fortin because of lack of experience; rather, that it did not cause the Company to refuse to hire. The General Counsel has contended that although Fortin applied for a job as crane operator, he should reasonably have been assigned to another job as the need arose, citing the Company's hiring of eight cement mixers. Parker's testimony which, if at all enlightening was hardly incandescent, was that as far as he knew all of the concrete-mixer operators were experienced He then appeared to deny this as he testified that he did not in fact know whether they had had prior ex- perience on concrete mixers. One can perhaps uncertainly reconcile his testimony as follows: Parker did not know that they had experience or where they had ob- tained it, but none were trained on this job and all appeared to be experienced as they did operate the machines. Nor have I overlooked the testimony that at the peak of this operation, in the fall of 1961, there were some 60 or 70 engineers on this job. When an attempt was made to itemize these jobs, only about 43 were indicated. No attempt will here be made to guess at the circumstances surrounding these hirmgs. including the dates of application or request to work, for the possibility that they might disclose violations. With the Company's admitted need for derrick boat operators, much was made at the hearing of the possibility of Fortin's employment on a lighter as the General Counsel probed into the facts in that connection But this case, like the others, suffers from a plethora of possibilities without proof. The hopeful attempts called for a more fruitful cause. Insofar as operation of a steam derrick on a lighter or barge is concerned, it is clear that this requires different experience, which Fortin does not even claim, and that he has neither the qualifications nor the license for steam operation. He does point to his seaman's certificate, which indicates no more than service aboard a ship, but not with machinery. To cite seaman's experience and crane operation as evidence of experience or ability to operate machinery on a steam- operated derrick boat is like the example of the editorial writer who wrote on Chinese metaphysics after reading in the encyclopedia under China and metaphysics. In the latter part of 1961 or early in 1962 the Company put a diesel-operated crane, which had previously been used on land, on a diesel-operated lighter. This crane on the boat could be operated by a land crane engineer; the man who operated it before it was placed aboard the boat remained with it Fortin testified next to a conversation with Salvucci, the Union's business agent, on this jobsite about a week or 10 days later, presumably in February. He allegedly asked Salvucci when he could go to work, and Salviicci replied that he had many union men loafing and had to put them to work. Fortin testified that he then showed Salvucci his able-bodied seaman's certificate, this in connection with the contemplated work here on boats and barges; and that Salvucci looked at the certificate and said that he had never seen one before. Recalling only one conversation with Fortin, on the Coleman job, Salvucci testified that he had told the General Counsel that the Union had many men who were loafing but that it did not stop anyone from joining. I do not find that Salvucci or the Union here discriminatorily refused to clear Fortin or otherwise interfered with him or caused the Company to discriminate? Most significant in this connection is the fact that in the O'Connell case Fortin placed this showing of his seaman's certificate and the conversation with Salvucci as having occurred for the first time on the Marinucci site in Somerset in the summer of 1961. It is superfluous to point out that on a minor detail Fortin contradicted 2 Cf Pipe Fitters Local 892, et at. (Alto Products, Inc.), 136 NLRB 492 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD himself further as he testified first that he was introduced to Parrish, the steward on the job, by Read, who remained during the conversation; then that Read did not stay, Fortin claiming to recall that Read busied himself on a pickup repair; and finally that he did not know whether Read remained or not. I have no confidence in and place no reliance on Fortin's testimony. Although as we have seen, Parker did not recall having had prior conversations with Fortin, he testified that he fired men who were not qualified; I do not credit Fortin's testimony that Parker told him that he could not do anything for him since he had men from the Union with whom he was dissatisfied but that he could not get rid of them, adding, "You could imagine what would happen if I hired you." Fortin also testified to a conversation with Salvucci on this job, the latter declaring, in response to Fortin's complaint that inexperienced men were working, that he would be the judge of who would work in the area. Salvucci testified, as we have seen, that he recalled only one conversation with Fortin, on the Coleman job, and further that in any event unionmen got their own jobs, Salvucci's responsibility being to see to it that they received full wages. Testimony was thereafter received pro and con on the secondary issue concerning an alleged conversation in which operator Laliberte asked Fortin to tell him how to run a grader, or told Fortin that he had never before seen a barge. As the General Counsel recognized, the issue is not whether Laliberte was in fact experienced on a grader; rather, a question was here raised concerning Fortin's veracity. The issue basically is not whether Laliberte said what Fortin alleg- edly reported or even whether Fortin reported it to Salvucci. With respect to dis- crimination or causation thereof, the point to be proved is that Salvucci recommended Laliberte with knowledge of the latter's inexperience, and that, because of Laliberte's membership in the Union or for whatever reason, Salvucci passed over and thus discriminated against Fortin in recommending Laliberte. In fact, it has not even been shown that Salvucci recommended Laliberte! This last item conceivably relates to the allegations of arrangement or practice and the compulsion allegedly exercised by the Union on the Company. Whatever the General Counsel hoped to show, it appears from the credible evidence that there was a prejob conference among company and union representatives; the Company wanted the Union's assistance in obtaining qualified men when it needed such assistance. But the Company was free to and did, according to its regular policy, bring in its own men and according to Auhl hired others without referral by the Union. According to Parker, operators when needed were obtained through this Union's steward although some were members of different locals. The Union is not shown to have discriminated in making referrals. It does not appear that there was here an exclusive or discriminatorily run hiring hall. The evidence fails to show an arrangement or practice as alleged ; or that the Union otherwise compelled the Com- pany to discriminate. We need not cite the applicable terms of the agreements which Auhl, on behalf of the Company, testified is still in effect. Whether as Ryan, the Union's business manager, testified, the "main purpose" of the agreement is to acquaint the employer with the area wage scale and working conditions, the agreement does not exclude nonmembers and is not violative .4 In short, an unlawful arrangement or practice, or discrimination against Fortin, has not been shown; nor that the Union acted in violation of the Act. There is no proof that to the extent that referrals were made, men who applied after Fortin were discriminatorily preferred. The type and extent of proof 5 needed to sustain allega- tions of violations as here alleged is indicated in the Board's decision in Houston Maritime Association, Inc., et al.6 The contrast with the evidence in this and the companion cases is marked. As in O'Connell, one may add this postlude which the evidence suggests: Even if hiring on this job is mostly at the gate, it can reasonably be expected since Fortin applies frequently and is generally experienced, and since he has been seeking employment here for a long time, that he will be put to work on this job if that has not already been done. 3 Omission of reference to this, in both the recital and argument portions of the General Counsel's brief, may reflect abandonment of the allegation ' See Local 357, International Brotherhood of Teamsters etc (Los Angeles-Seattle Motor Empress ) v N L R.B , 366 U.S. 667 Since briefs are sometimes filed and accepted which distort findings and expressions aged , I would add the caveat that reference to indicated proof does not mean that the issues in the cited cases or the proof needed therein are identical with those in the in- stant case 4 136 NLRB 1222 TRI-COUNTY TRUCK STOP 61 Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Company is engaged in commerce within the meaning of the Act. 2. Hoisting and Portable Engineers, Local No. 4, International Union of Oper- ating Engineers, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Company has not engaged in unfair labor practices within the meaning of Section 8(a) (3) or (1) of the Act. 4. The Union has not engaged in unfair labor practices within the meaning of Section 8(b) (1),(A) or (2) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case , I recommend that the complaint be dismissed in its entirety. Charles Faulkner d/b/a Tri-County Truck Stop and Melroy Horn, as president, Edwin D. Dorsey, as secretary-treasurer, Carl E. Gibbs, a business agent, as individuals and representa- tives of that class of individuals associated together as Auto- motive, Petroleum and Allied Industries Employees Union Local 618 and ASA Studdard and R. O. King. Case No. AO-46. October 10, 1962 ADVISORY OPINION This is a petition filed by Charles Faulkner d/b/a Tri-County Truck Stop, herein called the Petitioner, for an Advisory Opinion in conformity with Sections 102.98 and 102.99 of the Board's Rules and Regulations, Series 8, as amended. In pertinent part, the petition alleges as follows : 1. On June 12, 1962, the Petitioner filed an injunction suit in the Circuit Court of Franklin County, Franklin County, Missouri, against Melroy Horn, as President, Edwin D. Dorsey, as Secretary-Treasurer, Carl E. Gibbs, a Business Agent, as individuals and representatives of that class of individuals associated together as Automotive, Petroleum and Allied Industries Employees Union Local 618, a labor organiza- tion within the meaning of the Act, herein called the Union, seeking to enjoin the Union permanently from picketing or establishing a picket line in front of the Petitioner's place of business. 2. On June 14, 1962, the Union filed a representation petition with the Board's Fourteenth Regional Office (Case No. 14-RC-4342) claim- ing to represent a unit of the Petitioner's service station employees. Subsequently, the representation proceeding was withdrawn by the Union when, at an informal conference, the Board's field examiner, who investigated the petition, expressed the opinion that the Board did not have jurisdiction. 3. The Petitioner is engaged in the business of selling, at retail, gasoline, oils, fuels, and accessories to cars and trucks and his place of 139 NLRB No. 5.