International Association of Iron Workes, Local 229

INTERNATIONAL ASSOCIATION OF IRON WORKERS , LOCAL 229 271 International Association of Bridge, Structural and Ornamental Iron Workers, Local Union 229, AFL-CIO (Bethlehem Steel Corporation) and Floyd V. McClellan. Case 21-CB-3232 June 11, 1970 DECISION AND ORDER BY MEMBERS FANNING, MCCULLOCH, AND BROWN On July 18, 1969, Trial Examiner Stanley Gilbert issued his Decision in the above-entitled proceed- ing, finding that Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affir- mative action, as set forth in the attached Trial Ex- aminer's Decision. Thereafter, Respondent filed ex- ceptions to the Trial Examiner's Decision and a brief in support thereof; the General Counsel filed an answering brief. The National Labor Relations 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 Trial Examiner's Deci- sion, the exceptions and the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Ex- aminer only to the extent consistent herewith. The Trial Examiner found that Respondent Union violated Section 8(b)(2) and (1)(A) of the National Labor Relations Act by failing to refer Charging Party Floyd V. McClellan to certain weld- ing jobs at Bethlehem Steel's Westgate Plaza Hotel project. He found that the bargaining agreement covering ironworkers at this project specifically en- titled Bethlehem to "hire by name" without regard to the applicant's position on the registration lists, that Bethlehem exercised this right by requesting McClellan for welding jobs on September 18-20, 1968, and that the Union denied the request, im- posing a rule against "hustling" jobs that was not sanctioned by the agreement. Citing the Radio Of- ficers' decision,' the Examiner concluded that the Union was compelling adherence to its own "uni- laterally imposed" hiring practice, and was thus un- lawfully encouraging membership in the Union. The Union denies any illegality in its treatment of McClellan. It insists that its failure to refer McClel- lan finds sanction in the applicable contract. The referral provisions of the contract are quite complex. While employers are permitted to "em- ploy directly" and/or "hire by name," there are many conditions attached to such hiring and it is not clear whether McClellan was entitled to be em- ployed "directly" or "by name." The record shows that McClellan was on the Union's "B" list, whereas the contract accorded "A" list ironworkers priority in referral. And "A" list applicants were favored over McClellan when the Union made its selections for dispatch to the Bethlehem project. The Union informed McClellan that there were "A" list welders available and that he had violated a contractual ban on "hustling" jobs directly from employers. The Union explained to McClellan that "... no one is going to be called by name to the Bethlehem job unless it's in ac- cordance with the working agreement with the Union." The Union's treatment of McClellan raises some close questions and fine distinctions as to what is encompassed within the contractual language, but it does not demonstrate any wholesale extension or willful repudiation of the agreement. While it is dif- ficult to determine upon this record whether the Union's interpretation of the contract is the correct one, its position does not appear to be so uncon- nected with the contract as to evidence any uni- lateral imposition of union membership obligations or to demonstrate a purpose or effect of encourag- ing union membership.' Nor does the record other- wise indicate such a purpose or effect. We find that the General Counsel has not carried his burden of showing Respondent Union's conduct towards McCellan violated Section 8(b)(2) and (1)(A). Accordingly, we shall dismiss the com- plaint. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint in this proceeding be, and it hereby is, dismissed in its entirety. Member Brown, concurring: I would dismiss the complaint without reaching the merits. The contract which provisions govern the operation of Respondent' s hiring hall gives any job applicant "aggrieved by the operation of the ' The Radio Officers" Union of the Commercial Telegraphers Union, AFL (A H Bull Steamship Company), 93 NLRB 1523, 1527, affd. 547 U.S 17 2 In the language of another decision, " Respondent's construction is at least a reasonable one, and consequently there is no basis for finding that the treatment of [McClellan] necessarily violated [ or exceeded] the terms of the contract." New York Typographical Union Number Six, Inter- national Typographical Union, AFL-CIO (The Neu York Times Company), 144 NLRB 1555, 1558, enfd 336 F 2d 115 (C A 2) 183 NLRB No 35-T-5 183 NLRB No. 35 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hiring arrangement" the right to appeal for relief to a tripartite panel, including an impartial umpire, whose decision in the matter is final and binding. McClellan, an aggrieved applicant, has not availed himself of this contractual remedy for his referral complaint, but rather has filed these unfair labor practice charges. As the majority points out, the differences between McClellan and the Union re- late to some finely drawn distinctions and in- terpretations of ambiguously worded referral clauses in the contract. Given this within-the-con- tract nature of the dispute, I think it would better effectuate the policies of the Act to encourage the parties to avail themselves of the existing contrac- tual remedy. For the reasons stated in my dissenting opinion in Lummus Company, 142 NLRB 517, I would not now proceed to a determination of this case on its merits. Member Jenkins, dissenting: I must dissent from my colleagues' view that the General Counsel has not carried his burden of showing Respondent Union's conduct towards Mc- Clellan violated Section 8(b)(2) and (1)(A) of the Act. This position, in my view, flies in the face of the record evidence of this case and of the teachings of the United States Supreme Court in Radio Officers' Union v. N.L.R.B., 347 U.S. 17. The credited testimony of McClellan reveals that Respondent Business Representative Stuckey told him that he (McClellan) had been called by name to work on the Westgate Plaza Hotel site as an inner-shield welder, but that Stuckey was not going to dispatch him to the job because he "had been soliciting," that is, he had "hustled" the job directly from Bethlehem, and that Stuckey felt such "hus- tling" was contrary to the-contract. Unless contract support exists for the Union's position, it is clear from the foregoing that the Union, through Stuckey, "unilaterally" imposed its own desired hir- ing practice against McClellan. My colleagues do not find such contractual sup- port. Indeed they state only that the Union's treat- ment of McClellan "does not demonstrate any wholesale extension or willful repudiation of the agreement" and does not "demonstrate a purpose or effect of encouraging Union membership." The Board and Supreme Court tests in Radio Officers' do not require the General Counsel to establish wholesale acts of discrimination to prove the uni- lateral establishment of hiring practices beyond the purview of the contract, nor does Radio Officers' require the willful repudiation of a lawful hiring agreement to establish "encouragement" or the tendency to encourage union membership. In my view, the tests set out by the Board and the Supreme Court in Radio Officers' have been clearly met by the credited evidence of the General Coun- sel. McClellan was entitled to be called by name under the contract. He was called by name. He was not dispatched by the Union, at least in part, because he had "hustled" the job directly and the Union was therefore imposing its own hiring prac- tices not encompassed within the contract upon both McClellan and Bethlehem . Clearly, such con- duct by Respondent encouraged a form of member- ship by McClellan which Respondent is forbidden to impose, and as such , in my view, Respondent violated Section 8(b)(1)(A) and (2) of the Act. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE STANLEY GILBERT, Trial Examiner: Based on a charge filed by Floyd V. McClellan on October 11, 1969, the complaint herein was issued on December 10, 1969. The complaint alleges that In- ternational Association of Bridge, Structural and Ornamental Iron Workers, Local Union 229, AFL-CIO, herein variously referred to as the Iron Workers, the Union, and the Respondent, violated Section 8(b)(2) and (1)(A) of the Act by refusing to dispatch McClellan through its hiring hall, when it was requested to do so. Respondent, by its answer, denies that it committed the unfair labor practices alleged in said complaint. Pursuant to notice, a hearing was held in San Diego, California, February 18, 1969, before me. Upon the entire record in this case and from my observation of the witnesses as they testified, I find the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER INVOLVED Bethlehem Steel Corporation, a Delaware cor- poration with principal offices in Bethlehem, Pennsylvania, operates steel manufacturing plants throughout the United States, including California. During the 12 months preceding the issuance of the complaint it sold and shipped steel valued in excess of $50,000 from its California plants directly to customers located outside the State of California. As is admitted by Respondent, the Employer is now and has been at all times material herein an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED As is admitted by Respondent, it is a labor or- ganization within the meaning of Section 2(5) of the Act. INTERNATIONAL ASSOCIATION OF IRON WORKERS, LOCAL 229 273 III. THE UNFAIR LABOR PRACTICES Commencing September of 1968, Bethlehem en- gaged in the completion of structural steel work for the Westgate Plaza Hotel in San Diego, California, which is the jobsite involved in this proceeding. At all times material herein Respondent and Bethlehem abided by the California area agreement between the Iron Workers employers and District Council of Iron Workers of the State of California and the vicinity. Said agreement provides for hiring hall procedures between employers and Respon- dent, which permit the employers (with certain limitations not involved in this proceeding) to request workers by name to be dispatched to them. I The issues involved herein are as follows: (1) Did the Employer request the Charging Party, McClel- lan, by name? (2) Was Respondent's refusal to dispatch him violative of the Act? and (3) Is it ap- propriate to require that McClellan exhaust his ad- ministrative remedies under the collective-bargain- ing agreement before the Board will entertain his charge of unfair labor practices? Summary of Events There is no dispute as to the facts in this case. The General Counsel called three witnesses, Harold L. Mousseau, Bethlehem's superintendent in charge of the job involved herein, McClellan, the Charging Party, and William Bradshaw, a member of the Respondent Union. The Respondent called no wit- nesses . Set forth hereinbelow is a summary of the material facts related to the issues herein based upon the credited testimony of the above three wit- nesses. McClellan, who is a member of another local of the Iron Workers and a qualified inner-shield welder, worked as a welder for Bethlehem on two other jobsites in San Diego for a period of approxi- mately 5 months in the first part of 1968. On Sep- tember 13, 1968, Mousseau arrived in San Diego to commence work on the Bethlehem job, and on that day had a conversation with William L. Stuckey, Respondent's business representative, in which he informed Stuckey that he would be starting the job the following Monday, September 16, and would need four men for a "raising gang." On September 15, McClellan returned to San Diego from Phoenix, Arizona. On September 16, the four man "raising gang" reported for work. Also on that day Gil Madrid, Mousseau's welding foreman, gave Mousseau the name of several ,,good" inner-shield welders including that of Mc- Clellan. On Tuesday, September 17, Mousseau called the hiring hall to ask for three welders. He testified that he "called for two men at the time by name , Mr. Sullivan and McClellan, or someone who could run inner-shield," ostensibly to report the following day. On the previous day, September 16, McClellan received a message from Madrid through a friend who was working on the job that if he wanted to work to get in touch with him (Madrid) the next day. On September 17, McClellan went to the job and spoke to Madrid under whom he had worked previously. McClellan's testimony as to their con- versation is as follows: When I walked up, I shook hands with him and after that was over, he was in the process of setting an inner-shield welding machine when I walked up to him and Paul, this opera- tor, and he told me, he says, "Get you a weld- ing shield, McClellan, and help me set this inner-shield welding machine, because this is the one you will be using tomorrow," and, I in return, says, "Well, you seem pretty sure I'm going to work," and he says, "Oh yes, you're already cleared," and he said, "If you wish, you can go down today and pick up your work order because you have already been called in and cleared for this with the hall." On the afternoon of that day, McClellan went to the union hall and spoke to Stuckey. No reference was made by either man with respect to McClel- lan's referral to the Bethlehem job. On the following morning, September 18, Mc- Clellan reported to the union hall in time for the dispatching of workers. Stuckey stated that he had a job order for the Bethlehem job which called for two certified welders, two men stood up, stated that they were qualified and he dispatched them to the job. About an hour or two later, McClellan spoke to Stuckey in Bradshaw's presence. McClellan's testimony as to their conversation which is cor- roborated by Bradshaw is as follows: I asked Mr. Stuckey if there had been a call request for me to go to work on the Westgate Plaza Hotel site as an inner-shield welder, and he stated that there had been a call for me, but that I wasn't going, that he wasn't going to dispatch me to this job due to the fact that I had been soliciting, and also that I wasn't a local A list man. Bradshaw testified as to statements that Stuckey made including the following: A. Well, he said that the phones had been ringing off that wall about men hustling jobs and that as of this date, no one was going to be sent to the Bethlehem job unless it is in com- pliance of the work agreement. TRIAL EXAMINER: Unless it was what? THE WITNESS: Beg your pardon, sir? TRIAL EXAMINER: I'm sorry, I didn't hear. Would you start again? THE WITNESS: He said, "As of this date, no one is going to be called by name to the Bethlehem job unless it's in accordance with the working agreement with the union." ' It was stipulated by the parties that there is no issue herein as to the legality of the agreement or the hiring hall provisions 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On that afternoon McClellan went to the Bethlehem job and spoke to Mousseau. Mousseau informed him that he had asked the Union to refer McClellan and stated that he would call for him again. Later that day Mousseau again called the union hall and asked for five men. Mousseau testified that among the men he asked for were "Mr. McClellan and Mr. Sullivan or some inner- shield welders." On Thursday the 19th, McClellan went to the hiring hall in time for the dispatching procedure. Stuckey called out the work orders in- cluding a call for two more inner-shield welders for the Bethlehem job "because the two the day previ- ously that he had sent did not qualify at all." Mc- Clellan was not among those dispatched to the Bethlehem job. On September 19 Mousseau again called the union hall and asked for McClellan or some good inner-shield welders, as well as for some plumbing and bolting men. In the afternoon of the next day, September 20, McClellan was referred by Stuckey to the Bethlehem job as a "plumbing and bolting" man. McClellan stated to Stuckey when he offered him the referral as a plumbing and bolting man that "they want me down there as a welder." Stuckey replied, "Well, the welding job is filled and that's all I have available right now." McClellan reported for work that afternoon, which was a Friday, worked the following Monday and Tuesday and was laid off on Wednesday. He did not work as a welder. Mousseau testified that while it was his practice to move men from one type of a job to another without regard to the character of the referral, he did not place McClel- lan on a welding machine because they were all full and the men performing on them were performing satisfactorily. Concluding Findings The General Counsel contends that the Respon- dent's refusal to dispatch McClellan when he was requested by name was because of its announced belief that McClellan had solicited the job. The record supports the finding that the refusal to dispatch him was based on that reason.2 The General Counsel argues that McClellan was entitled to be called for by name and that by refusing to dispatch him "Respondent sought to insert its own hiring practices in place of those established by the contract." In its brief the General Counsel sets forth his argument as follows: Respondent argued at the hearing that its policy was one of fairly distributing the availa- ble work. This is analogous to a job rotation principle. However, the Board has held that "discrimination aimed at compelling obedience to union rules (in this case the job-rotation principle) encourages membership in a labor organization no less than discrimination designed to combat dual unionism." The Radio Officers' Union of the Commerical Telegraphers Union, AFL, 93 NLRB 1523, 1527. Ac- cordingly, the "union in causing the employer to discriminate against [McClellan] into fol- lowing the union's desired hiring practices deprived [McClellan] of a protected right." Radio Officers' Union v. N.L.R.B., 347 U.S. 17, 42. The tests set out by the Board and the Supreme Court respectively in their Radio Of- ficers' decisions have been clearly met here. McClellan was entitled to be called for by name under the agreement, was called for by name, and was not dispatched by the Union in order that the Union might impose its own hir- ing practices, and not those established by the contract, upon both McClellan and Bethlehem. Such conduct on Respondent's part en- couraged a form of union membership by Mc- Clellan which Respondent is forbidden by the Supreme Court's Radio Officers' decision from doing. As such, it violated Section 8(b)(1)(A) and (2) of the Act. The Respondent appears to admit that the refusal was predicated on enforcing a union rule against solicitation ("hustling"). However, it claims that it did not violate the Act by so doing for three reasons: First, Respondent contends that McClellan was not called for by name since Mousseau requested McClellan "or someone who could run inner-shield"; secondly, Respondent contends "that the collective bargaining agreement specifically prohibits hustling of work because under the provi- sions of Section 5-H-2-a all individuals seeking employment must be available at the hiring hall during dispatch hours so that everyone can be given an even break at all the jobs that come in"; and, thirdly, Respondent contends "even if the Agree- ment does not spell out the `no hustling' rule, the Union clearly has the right to impose such a rule if the purpose of the rule is to spread job opportuni- ties fairly among the workers which is obviously the fact here." As to the Respondent's first contention (that Mc- Clellan was not called for by name), while Mous- seau's request was in the alternative (in asking for McClellan or someone who could run inner-shield), nevertheless it is considered that by this request Mousseau did not reasonably intend to give the Union a choice of sending McClellan or someone else it desired to send. The record clearly supports the finding that Stuckey considered Mousseau's request to be for McClellan by name and the reasonable construction of the request was that Mousseau wanted McClellan or someone else who Y The General Counsel does not contend that the Union was attempting to give preference to its own members , and it is clear that the record would not support such contention INTERNATIONAL ASSOCIATION OF IRON WORKERS , LOCAL 229 275 was competent, if McClellan were not made availa- ble to him. The record further discloses that Stuckey did not refuse to dispatch McClellan because he understood that he was given the choice by Mousseau to send McClellan or someone else. Consequently it is concluded that McClellan was called for by name which the employer was entitled to do under the provisions of the agreement.3 The second contention that the collective-bar- gaining agreement prohibited hustling of work (because the individuals seeking employment must be available at the hiring hall during dispatch hours) appears to be of little merit; the requirement of being in the hiring hall at the time of dispatch neither expressly nor impliedly prohibits hustling. A man seeking work could very well solicit an em- ployer to call for him by name on one day and be in the hiring hall the following day in order to be dispatched. Whatever the reason for the require- ment that he be in the hall in order to be dispatched, the requirement is not reasonably susceptible of the construction Respondent con- tends (that it precludes hustling). As to the third contention that the rule is a just one, this contention is of no merit since the issue is not whether the rule against hustling is good or bad. It may very well be that employers desire to have workers solicit them since it gives employers an op- portunity of knowing who is available and thus making a selection among them, instead of having to take whomever the Union sends. In any event, the rule was not incorporated in the hiring hall procedures provided for in the collective-bargain- ing agreement, and no purpose would be served in speculating as to its desirability. In the circumstances it is concluded that McClel- lan was entitled to be dispatched upon Mousseau's request for him by name and that Respondent's refusal to do so in order to enforce its unilaterally imposed rule against hustling is in violation of Sec- tion 8(b)(2) and (1)(A) of the Act. Radio Officers' cases, supra; Hod Carriers' Building and General Laborers' Union of America, Local No. 652, AFL-CIO, 147 NLRB 380, 390. Respondent further contends that the purposes of the Act are not effectuated by considering the charge in this case , because it emasculates the grievance procedure available to McClellan and that he should be required to exhaust his remedies thereunder before the Board considers his unfair labor practice charge. The fact that McClellan failed to exhaust the administrative means available to him under the grievance procedure is no bar to this proceeding and does not constitute a defense to the unfair labor practices alleged in the complaint. Superior Roofing Company, 158 NLRB 657, 661. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the opera- tions described in section I, above, have a close, in- timate, and substantial relationship 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 It having been found that the Respondent has en- gaged in certain unfair labor practices, it will be recommended that Respondent cease and desist therefrom and take certain affirmative action deemed necessary to effectuate the policies of the Act. It having been found that Respondent dis- criminated against Floyd V. McClellan by refusing to dispatch him as a welder to the Bethlehem job on three consecutive days commencing September 18, 1968, although he was entitled to be dispatched by reason of the fact that he had been requested by name in accordance with the provisions of the ex- clusive hiring hall operated by Respondent, it will be recommended that Respondent make him whole for any loss of earnings he may have sustained as a result of said discrimination. While it is true that he was dispatched as a plumbing and bolting man on the afternoon of September 20 and worked several days in that capacity this fact does not militate against his being entitled to what he would have earned as a welder had he been dispatched on the first day he was requested. It appears that he was a competent welder and therefore it is appropriate to assume that he would have remained on the job as a welder as long as his services as a welder would have been required. CONCLUSION OF LAW 1. By refusing to dispatch McClellan as a welder to the Bethlehem job upon his request by name in accordance with the provision of the hiring hall agreement in order to enforce its rule against hus- tling, Respondent violated Section 8(b)(2) and (1)(A) of the Act. 2. The aforesaid unfair labor practice is an un- fair labor practice affecting 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 the entire record in this ' Although there are certain limitations with respect to this privilege pro- vided for in the contract, such limitations are not material to this proceed- ing. 427-258 O-LT - 74 - 19 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD case, it is recommended that International Associa- tion of Bridge, Structural and Ornamental Iron Workers, Local Union 229, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from refusing to dispatch Floyd V. McClellan when appropriately requested by name in order to enforce its rule against hus- tling. 2. Take the following affirmative actions which are deemed necessary to effectuate the policies of the Act: (a) Make Floyd V. McClellan whole for any loss of earnings he sustained by reasons of its dis- criminatory refusal to dispatch him as a welder to the Bethlehem job commencing on September 18, 1968. (b) Post at Respondent's business offices and meeting halls, copies of the attached notice marked "Appendix."4 Copies of said notice, on forms pro- vided by the Regional Director for Region 21, after being duly signed by an official representative of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 21, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith.5 ' In the event that this Recommended Order is 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 In the further event that the Board 's Order is enforced by a decree of a United States Court of Appeals, the words " a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words " a Decision and Order " In the event that this Recommended 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 Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL MEMBERS OF INTERNATIONAL ASSOCIATION OF BRIDGE , STRUCTURAL AND ORNAMENTAL IRON WORKERS, LOCAL UNION 229, AFL-CIO Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the Na- tional Labor Relations Act, as amended , we hereby notify you that: WE WILL NOT refuse to dispatch Floyd V. McClellan when he is requested by name and is entitled to be dispatched upon such request in order to enforce our rule against hustling. WE WILL make Floyd V. McClellan whole for any loss of earnings he may have suffered by reason of our discriminatory refusal to dispatch him as a welder to the Westgate Plaza Hotel site in San Diego commencing Sep- tember 18, 1968. INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, LOCAL UNION 229, AFL-CIO (Labor Organization) Dated By (Representative ) (Title) This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced , or covered by any other material. If members have any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Eastern Columbia Building, 849 South Broadway, Los Angeles, California 90014, Telephone 213-688-5200.