Local 320, Int'l Union of Operating Engineers

LOCAL 320, INT'L UNION OF OPERATING ENGINEERS 455 places where notices to employees are customarily posted . Reasonable steps shall be taken by the Respondent to insure that said notices are not altered , defaced, or covered by any other material. (e) Notify the Regional Director for Region 5, in writing, within 20 days from the date of the receipt of this Decision , what steps Respondent has taken to comply herewith.13 - '3 In the event that this Order is adopted by the Board , this provision shall be modified to read, "Notify said Regional Director , in writing , within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES As recommended by a Trial Examiner of the National Labor Relations Board, we are posting this notice to inform our employees of the rights guaranteed them in the National Labor Relations Act: WE WILL offer Clyde Scott, Howard Scott, and Warren Scott their former jobs and pay them for wages they may have lost since December 26, 1963, January 2, 1964, and February 4, 1964, respectively. WE WILL NOT discharge or otherwise discriminate against any employee for engaging in activity on behalf of United Mine Workers of America, or for engaging in any other union or concerted activity for mutual aid or protection of employees. WE WILL NOT threaten our employees with closing the plant , discharge them or lead them to believe that wage increases are granted in order to discourage union activity. WE WILL NOT in any like or related manner interfere with, restrain , or coerce our employees in their right to form , join, or assist any labor organization or engage in any concerted activity or to refrain from such union or concerted activity. ALPINE COAL COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) NOTE.-We will notify the' above -named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon applica- tion in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended , after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Sixth Floor, 707 North Calvert Street , Baltimore, Maryland, Telephone No. 752-8460, Extension 2100, if they have any question concerning this notice or compliance with its provisions. Local No. 320, International Union of Operating Engineers, AFL-CIO [R. W. Hughes Construction Company, Inc.] and C. V. Stelzenmuller, Attorney. Case No. 10-CB-1445. Decem- ber 16, 1964 DECISION AND ORDER On June 2, 1964, Trial Examiner W. Gerard Ryan issued his Deci- sion in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices in violation of the Act. and recommending that Respondent cease and 150 NLRB No. 47. 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD desist therefrom and take certain affirmative action as set forth in the -attached Decision. Thereafter, Respondent filed exceptions and a supporting brief.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCul- loch and Members Leedom and Jenkins]. 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 .2 The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this case and hereby adopts the findings, conclusions, and recom- mendation of the Trial Examiner. .Contrary to our dissenting colleague, we are satisfied that the credited testimony fully establishes that Ezell, Respondent's assistant business manager, threatened Hughes' officials with a strike and de- manded Narmore's discharge because Narmore had obtained a job from Hughes without a clearance from the Union's hiring hall, and not because he was incompetent. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the Board hereby adopts as its Order the Order recom- mended by the Trial Examiner, and orders that Respondent, Local 320, International Union of Operating Engineers, AFL-CIO, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Order with the following modifications : a. In paragraph 1(a) of the Recommended Order insert after the word "employer" the words "over whom the Board has, and would assert, jurisdiction under the Act." i The Respondent's request for oral argument is denied because , in our opinion, the record, including the exceptions and brief, adequately sets forth the issues and the posi- tions of the parties. 2 Respondent excepts to the refusal of the Trial Examiner to allow its examination at the hearing of pretrial statements by Lee, a witness for the General Counsel. The Trial Examiner twice denied Respondent 's request for production of such statements , first in the middle of the direct examination of the witness , on the ground the request was premature, and later, after the witness had been cross -examined and excused, on the ground the request came too late. The Trial Examiner explained to Respondent that the appropriate time for it to request such statements is just prior to its cross -examination of the witness for the General Counsel. We find no prejudicial error in either ruling. Walsh-Lumpkin Wholesale Drug Company, 129 NLRB 294 , 296; Section 102.118 of the Board's Rules and Regulations, Series 8, as amended. It would disorganize hearings if respondents were given the right to demand a pretrial statement during the General Counsel's examination of the witness . It would also interfere with the orderly conduct of the hearing to permit access to such statement after the witness had been excused, because it would necessitate the witness' recall for further examination. A decision to refuse such a deviation from normal procedure is within the Trial Examiner 's area of discretion. Moreover, in the present case, Respondent was given specific prior notice of the proper time to make its request, but failed to do so. LOCAL 320, INT'L UNION OF OPERATING ENGINEERS 457 b. In the first subparagraph of the Appendix : (1) Delete the phrase "whose operations affect commerce within the meaning of the Act" and substitute therefor the phrase "over whom the Board has, and would assert, jurisdiction under the Act." (2) Delete the phrase "or any other employee or applicant for employment." MEMBER JENKINS, dissenting : I do not find that the record in this case supports the Trial Exam- iner's conclusion that the Respondent violated- Section 8 (b) (2) of the Act. The record shows that Narmore, a very elderly man, was incapable of handling a crane even though he was a member of the Respondent Union. Indeed, the only time he attempted to operate the crane at the project he had an accident, and the Ironworkers refused to con- tinue working until, he was replaced. The Union was aware of Narmore's inability to operate a crane safely, as evidenced by the statements of its business agent to the Employer on May 27, 1963. Business Agent Ezell told the Employer that Narmore was too old to operate a crane and was sent out only on small jobs to attend air compressors and welding equipment. Upon these facts, I am unwilling to say that Narmore's discharge was caused by the fact that he had not been referred to the Employer by the Respondent Union. Rather, I find that the facts more readily lend themselves to the conclusion that the Respondent's insistence on Narmore's removal was unconnected with his union membership status, except to the extent such status depended upon his ability to operate a crane. Accordingly, I would find that the Respondent did not violate Sec- tion 8(b) (1) (A) and (2) of the Act, and I would dismiss the com- plaint in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding was held before Trial Examiner W. Gerard Ryan in Birmingham, Alabama, on February 5 and 6, 1964, on the complaint of General Counsel and the answer of Local No. 320, International Union of Operating Engineers, AFL-CIO, herein called the Respondent .) The issue litigated was whether the Respondent vio- lated Section 8(b)(1)(A) and (2) and Section 2(6) and (7) of the Act. Briefs have been filed by General Counsel, the Respondent, and the Charging Party. Upon the entire record and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS I. THE BUSINESS OF THE EMPLOYER R. W. Hughes Construction Company, Inc., herein called Hughes , is, and has been at all times material herein , an Alabama corporation having its "principal place of 1 The charge was filed and served on the Respondent on November 18, 1963. The com- plaint Issued on January 14, 1964. 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD business in Birmingham, Alabama, where it is engaged in the business of structural steel construction and erection. It was stipulated that during the past calendar year, Hughes performed services in excess of $22,000 outside the State of Alabama. Dur- ing the same period it performed services valued in excess of $32,000 for General Electric Corporation, herein called General Electric; Northrop Corporation, herein called Northrop; and Continental Conveyor and Equipment Co., herein called Conti- nental. General Electric which has its principal plant in the State of Kentucky, annu- ally produces and ships products valued in excess of $50,000 directly to customers outside the State of Kentucky. Northrop has a principal plant in the State of Cali- fornia and annually performs services valued in excess of $50,000 for customers outside the State of California, and during the past calendar year has performed services for the National Aeronautical and Space Administration at Huntsville, Alabama, pursuant to a contract valued at more than $50,000. Continental annu- ally produces and ships from its Alabama plant located at Winfield, Alabama, prod- ucts valued in excess of $50,000, direct to customers outside the State of Alabama. It was further stipulated that General Electric, Northrop, Continental, and R. W. Hughes Construction Company are, and have been during the past calendar year, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I so find. II. THE LABOR ORGANIZATION INVOLVED Local No. 320, International Union of Operating Engineers, AFL-CIO, is and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The complaint alleged and the answer denied that, in violation of Section 8(b) (1) (A) and (2), the Respondent on or about May 27, 1963, attempted to cause and did cause R. W. Hughes Construction Company, Inc., to discharge William Henry Narmore because Narmore had not been referred to Hughes by the Respondent. The complaint alleged and the answer admitted that at no time material herein has there been an exclusive referral agreement between the Respondent and Hughes. R. W. Hughes Construction Company, Inc., was the subcontractor for the erection of the structural steel in the construction of the Pizitz Department Store job in Hunts- ville, Alabama. F. R. Hoar and Sons was the general contractor. Hughes moved in on the job on May 21, 1963,2 and began work on May 22. After 17 working days the job was completed on June 25.3 On May 21, James T. Lee, Jr., president of Hughes, telephoned the Respondent's business agent, Hobart Williams, in Florence, Alabama, and asked Williams to clear Jack Ivey, Hughes' crane operator, for the Huntsville job and also to send Hughes an oiler for the crane. Ivey had been a crane operator for 7 years with Hughes and was a member in good standing of Local Union 312, International Union of Oper- ating Engineers, AFL-CIO, in Birmingham, Alabama. Williams told Lee that the assistant business agent of the Respondent, Hiram Ezell, would be on the job on the next day. Ezell came to the jobsite the next morning, Wednesday, May 22, and Lee again requested clearance for Ivey. Ezell replied that he had a lot of operators out of work and that Lee would have to put one of his operators on the job before he would clear Ivey. Lee refused, saying he did not have any use for another operator but that later on he could use one to look after the air compressor and the welding machine. But Ezell insisted that if he was to clear Ivey, Lee would have to have one of his operators on the jobsite. On the same day, Lee telephoned to the 'Charging Party, C. V. Stelzenmuller, and discussed with him the clearance of Ivey.- Lee stated that Stelzenmuller volunteered to see if he could get one of Respondent's unemployed crane operators for employment by Lee. On Thursday, May 23, William Henry Narmore came to the jobsite and told Lee he understood he needed another crane operator.4 Narmore told Lee that he was a crane operator, a member of Local Union 320 (the Respondent) in good standing, and produced his union book. Narmore, who was 74 years old, told Lee he had been operating for about 35 years. Narmore was the holder of a "parent" book and 2 All dates herein refer to 1963 unless otherwise stated. 0 Hughes used the crane for 8 days in erection of steel and then rented the crane to the Hoar Company for 9 days in setting stone on the building. * Narmore testified that the night before, Robert MeAlpin, also a member of Respondent Union, told him that the Hughes Company wanted to hire a crane operator in Huntsville. LOCAL 320, INT'L UNION OF OPERATING ENGINEERS 459 was classified as a qualified crane operator . Lee then hired Narmore as a crane operator at the rate of $4.10 per hour and told Narmore he would have to have an operator on the jobsite and would keep him as long as the job lasted. On Friday, May 24, Lee was absent from the jobsite. Ezell visited the jobsite sometime on Friday and spoke to Narmore asking him what he was doing there. Narmore told Ezell he was on the payroll.5 Ezell also spoke to Jack Ivey, the crane operator, and told him he was not cleared by the Respondent, but gave Ivey permis- sion to operate the crane for that day without endangering his union book and having charges preferred against him with the International Union. On Monday,'May 27, Ezell went to the jobsite around 8 o'clock in the morning. Pointing to Narmore, Ezell asked Lee, "What is that man doing on the job ?" Ezell and Lee then conversed in the trailer office. Ezell told Lee that Ivey could not oper- ate or start the crane and if he did so, Ezell would prefer charges against him and get his union book. Ezell again told Lee he had operators out of work in his local and before the Hughes Company went to work there it was going to have one of his men on the jobsite . Lee answered, "I have already hired one of your men on the jobsite. He is out there right now, Mr. W. H. Narmore. He is out of your Local and is a crane operator." Ezell replied that Narmore was not his man; that Nar- more was nothing but a troublemaker and if Lee wanted to clear Ivey in he would have to get rid of Narmore and put one of his operators on the jobsite . Lee inquired, "I will have to lay Mr. Narmore off and put one of your operators on" and Ezell replied, "Yes , sir, that is it." Ezell also stated that during the course of this conver- sation that the Hughes Company would either put one of his operators on or he, Ezell, "would put a picket line on the jobsite and shut the whole job down." When Johnny Cone, who was superintendent for the Hoar Company, heard Ezell say that he was going to strike the job, he jumped up and said that this was a "penalty job," a $500-a-day penalty job and there could be no strike on this job and that he wished Ezell and Lee could get together and get this thing settled, to which Ezell replied that "it could be easily settled by putting one of his operators out there on the job." Lee told Ezell he did not need two crane operators as he only had one crane on the job. During the conversation, Lee told Ezell that Narmore had an operator's book, was paid up, and was in good standing out of his "Ezell's" local. To that Ezell stated that Narmore was not sent to that job through his local there and that Nar- more was nothing but a troublemaker and an old man , too old to operate a crane. Ezell stated further that they only sent Narmore out on small jobs to look after welding machines and air compressors. To that Lee replied that Narmore had an operator's book and he did not know why he would hold on to that book if he could not operate a crane. A final decision was reached by Ezell and Lee to the effect that Ezell would clear Jack Ivey for work on the job and would send one of his operators out of the Respondent Union to the job the following morning. The next morning, Tuesday, May 28, Matt Worsham reported to Lee saying that he had been sent out by the Union to replace Narmore. Worsham was hired by Lee and worked that day and Monday and Tuesday of the following week. Narmore had reported for work on Monday, May 27, but did not remain on the job. He returned to work the next day, saw Worsham on the job, and sought out Lee who told him he was laying Narmore off to get the job going and had to put on the operator sent out by the Union. The foregoing findings are based on the credited testimony of Lee , Narmore, and Cone. The Respondent's Defense The Respondent contends that: It did not even know that Narmore was working on the job; he was not an employee within the meaning of the Act; and there is no competent evidence that the Respondent sought the discharge of anyone. The Respondent further contends that it sought only the employment of one of its mem- bers within the framework of the union rules. I find no merit in the Respondent's defense. I conclude and find that the Respondent caused Hughes to discharge William Henry Narmore on May 28, 1963, because Narmore had not been referred to Hughes by the Respondent. Thus, I find that the Respondent engaged in the unfair labor practices violative of Section 8(b)(1) (A) and (2) and Section 2(6) and (7) of the Act as alleged in the complaint. 5 Ezell testified that Narmore told him he was not on the payroll 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices found to have occurred as set forth above, occurring in connection with the operations of Hughes 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 In view of my finding set forth above, that the Respondent has engaged in unfair labor practices defined in Section 8(b) (1) (A) and (2) of the Act, I shall recommend that it be required to cease and desist therefrom and take such affirmative action as appears necessary and appropriate to effectuate the policies of the Act. I shall rec- ommend that the Respondent make William Henry Narmore whole for the loss of earnings suffered as 'a result of the discrimination against him by payment of a sum of money equal to what he would have earned working for Hughes on the Pizitz Department Store job after May 28, 1963, less net earnings during said period, net earnings to be computed on a quarterly basis as in F. W. Woolworth Company, 90 NLRB 289, with interest computed as in Isis Plumbing & Heating Co., 138 NLRB 716. 1 shall recommend that Respondent post at its regular meeting place copies of the attached notice marked "Appendix." On the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Local No. 320, International Union of Operating Engineers, AFL-CIO, is a labor organization within the meaning of the Act. 2. R. W. Hughes Construction Company, Inc., is an employer engaged in com- merce within the meaning of the Act. 3. By causing Hughes to terminate the employment of William Henry Narmore on or about May 28, 1963, because he had not been referred to Hughes by the Respondent, the Respondent engaged in unfair labor practices defined in Section 8(b)(1)(A) and (2) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this proceeding, I recommend that the Respondent, Local No. 320, International Union of Operating Engineers, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Causing or attempting to cause R. W. Hughes Construction Company, Inc., or any other employer, to terminate employment of William Henry Narmore on any project within its territorial jurisdiction on the basis of not having been referred to Hughes by the Respondent. (b) In any like or related manner restraining or coercing employees in the exer- cise of their rights under Section 7 of the Act, except to the extent permissible under an agreement lawfully entered into pursuant to the provisions of the Act. 2. Take the following affirmative action to effectuate the purposes and policies of the Act: (a) Make whole William Henry Narmore for loss of earnings in the manner set forth in the section above, entitled "The Remedy." (b) Post at its business office and at all places where notices to members and applicants for referral are posted, copies of the attached notice marked "Appendix." 6 Copies of said notice, to be furnished by the Regional Director for Region 10, shall, after being duly signed by an authorized official of Respondent, remain posted at the places indicated, for a period of not less than 60 consecutive days. Reasonable steps shall be taken by Respondent to assure that said notices are not altered, defaced, or. covered by any other material. u If this Recommended order be adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. If the Board's Order Is enforced by a decree of a United States Court of Appeals, the notice will be further amended by the substitution of the words "a Decree of the United States Court of Appeals, Enforcing an Order" for the words "a Decision and Order." LOCAL 7, ETC., PLUMBING & PIPEFITTING INDUSTRY 461 (c) Notify the Regional Director for Region 10, in writing , within 20 days from receipt of this Decision, what steps Respondent has taken to comply with it.7 7If this Recommended Order be adopted by the Board , this provision shall be modified to read: "Notify the Regional Director for Region 10, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL MEMBERS AND APPLICANTS FOR REFERRAL Pursuant to the Recommended Order of a Trial Examiner of the National Labor relations Board and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby give notice that: WE WILL NOT cause or attempt to cause R. W. Hughes Construction Com- pany, Inc., or any other employer whose operations affect commerce within the meaning of the Act, to terminate the employment of William Henry Narmore, or any other employee or ,applicant for employment in violation of Section 8(a) (3) of the Act. WE WILL NOT in any like or related manner restrain or coerce employees of or applicants for referral of any other employer engaged in commerce within the meaning of the Act. WE WILL make William Henry Narmore whole for loss of earnings suffered as a result of the discrimination against him on the Pizitz Department Store job at Huntsville, Alabama. LOCAL No. 320, INTERNATIONAL UNION OF OPERATING ENGINEERS , AFL-CIO, Labor Organization. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Members and applicants for referral may communicate directly with the Board's Regional Office, 528 Peachtree-Seventh Building, 50 Seventh Street NE., Atlanta, Georgia, Telephone No. Trinity 6-3311, Extension 5357, if they have any question concerning this notice or compliance with its provisions. Local No. 7, Albany, New York and Vicinity, United Association of Journeymen and Apprentices of the Plumbing and Pipe- fitting Industry and James H. Maloy, Inc. and Construction and General Laborers Local 190, International Hod Carriers, Building and Common Laborers Union, AFL-CIO. Case No. 3-CD-1126. December 16, 196./ DECISION AND DETERMINATION OF DISPUTE This is a proceeding under Section 10(k) of the Act following a charge filed by James H. Maloy, Inc., herein called the Employer, alleging that Local No. 7, Albany, New York, and Vicinity, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, herein sometimes called the Respondent, had violated Section 8(b) (4) (D) by threatening, coercing, or restraining the Employer for the purpose of compelling it to assign certain work to employees represented by Respondent, rather than to employees 150 NLRB No. 50.