Intl. Un. of Operating Engineers, AFL-CIO, Loc. 819

1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Union of Operating Engineers, TRIAL EXAMINER'S DECISION AFL-CIO, Local 819 (Holloway Construction Co.) and Luther D. Kirby , an Individual. Case 1 6-CB-472 June 25, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On April 20, 1970, Trial Examiner Alba B. Mar- tin issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. Thereafter, the Respondent filed exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulinggs 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 Decision, the exceptions, and the entire record in this case, and hereby adopts the findings, conclusions,' and recommendations of the Trial Examiner.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner,' and hereby orders that the Respondent, International Union of Operating Engineers, AFL-CIO, Local 819, Fort Worth, Texas, its officers, agents, and representa- tives, shall take the action set forth in the Trial Ex- aminer's Recommended Order. ' These findings and conclusions are based, in part, upon the Trial Ex- aminer's credibility determinations to which the Respondent excepts On the basis of our careful review of the record , we conclude that the Tnal Ex- aminer's credibility resolutions are not contrary to the clear preponderance of the relevant evidence , and we find no basis for distrurbing them Stan- dard Dry Wall Products , Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) R In adopting the Trial Examiner's proposed remedy, we do not make any findings as to the effect on the amount of backpay due as the result of Kel- ley's quitting on July 17 or Kirby's discharge on August 18, but leave the determination of the effect of these events to the compliance stage of this proceeding ' As corrected by an erratum on May 1, 1970, amending his order STATEMENT OF THE PROCEEDING ALBA B. MARTIN, Trial Examiner: This con- solidated proceeding, with the General Counsel and Respondent Union represented by counsel, was heard before me in Forth Worth, Texas, on January 19, 1970.' The issues litigated were whether Respondent Union violated Section 8(b)(2) of the Act by causing or attempting to cause Holloway Construction Company to discharge Luther D. Kirby and James C. Kelley on July 7, 1969; and whether Respondent Union warned prospective employees that they would not be referred for jobs unless they joined the Union, and threatened em- ployees that the Union would cause their discharge unless they joined the Union. After the hearing the General Counsel and Respondent filed helpful briefs which have been duly considered. Upon the entire record and my observation of the witnesses I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Holloway Construction Company (Holloway) is a Michigan corporation with principal offices in Michigan, engaged in the construction industry as an earthmoving and underground construction con- tractor. At the jobsite herein involved Holloway does grading and drainage work at the new Dallas- Forth Worth Regional Airport now being con- structed between Dallas and Fort Worth. During the 12 months prior to the issuance of the com- plaint on November 26, 1969, a representative period, Holloway performed services valued in ex- cess of $50,000 outside of Michigan and purchased and received at its various Michigan locations equipment and supplies valued in excess of $50,000 from outside of Michigan. Respondent admitted and I find that Holloway is now, and has been at all times material herein, an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. If. THE LABOR ORGANIZATION INVOLVED Respondent Union, sometimes called the Local and the Union, is the International Union of Operating Engineers, AFL-CIO, Local 819, which is a labor organization within the meaning of Sec- tion 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Contract Respondent Union and Holloway are parties to a collective-bargaining agreement which gives the ' The charge was filed by Luther D Kirby, an individual, on August 18, 1969 Y "The Act" refers to the National Labor Relations Act, as amended, 29 USC Sec 151,etseq 183 NLRB No. 114 INTL. UN. OF OPERATING ENGINEERS, AFL-CIO, LOC. 819 Union the first opportunity to fill vacancies, and provides that selection of applicants for referral to the jobs by the Union shall not be based on, or in any way affected by, union membership . The wage schedule for operating engineers has a miscellane- ous classification which includes "compressors, pumps, welders, light plants, generators, con- veyers." After some original misunderstanding Hol- loway and the Union consider "pumps" to mean that vehicles with pumps , such as water wagons, are under the Union 's jurisdiction and the contract. B. The Hire and Discharge of Kirby and Kelley on July 7, 1969 On or about Wednesday , July 2, 1969, Kirby and Kelley applied to William Foster, Holloway 's grade superintendent at the project, for jobs running scrapers, bulldozers , or rollers. Foster told them that in order to work as operators they would have to talk to the Union 's job steward . They then ap- plied to the Union 's steward , Paul Wager. Kirby, who impressed me as a credible witness, crediby testified that Wager told them that to be hired as operators they would have to join the Union and that under contract with Holloway the Union operated a hiring hall which they would have to be hired through . Wager showed them the docu- ments they would have to sign to join the Local and said they had to sign them before they could go to work as operators . Wager took their names, ad- dresses, and telephone numbers. As a witness Wager denied telling Kirby he would have to join the Union to get a job as an operator. Wager testified , "All I remember mentioned was the job was union and we go from there, and Luther took it up that he knew all about it, he had been in unions before, and that was the end of it right there ." Wager added that Kirby realized it was a union job and he would have to do that (join the Union ). Upon his entire testimony and by his demeanor I found Wager not as credible a witness as Kirby and I credit the latter's testimony as set forth above. On the morning of Monday, July 7, Superinten- dent Foster hired four persons to run water wagons. The latter sprayed water on roads and wherever needed for compaction . These four were Kirby and Kelley and also Darrell Applegate and one Wilson, who separately from Kirby and Kelley had applied to Foster the previous week and were put to work on Monday. Foster hired these four without any- body 's first clearing the matter with Wager or any other steward . Foster was then under the impres- sion that the job of operating the wager wagon was not within the Union 's jurisdiction or under the contract. On Tuesday morning, July 8 , Wager met Ap- plegate and Wilson in the parking lot as they drove up to go to work . According to the credited testimony of Applegate , a credible witness, Wager told them they would have to join the Union in 1125 order to keep on working . Applegate replied that Mr. Foster had told him that he didn 't have to join the Union and that he was not going to do so. Wager then "called Foster over" and Wager and Foster had an argument, which ended with Foster's agreement that "we would have to join the union." Wager and Foster then talked with Applegate and Wilson again , Wager saying they would have to join to keep working. Applegate then agreed to join, and he did so that afternoon. Wager gave him the cards to sign, one a temporary and showing he was "in the union " and that he "could work under the union until I got my [union dues] book." The other card was to authorize the Company to deduct Ap- plegate 's initiation fee from his wages . Applegate continued working only 2 weeks and quit because "it was too far a drive " from his home . The record is silent as to whether Wilson joined the Union, but Applegate testified on January 19, 1970, that he thought Wilson was still working on the job. Most of Applegate 's testimony was undenied by Wager . Wager testified that on Tuesday morning Applegate "come to me and talked to me about Luther getting his name and address , and other than that, that's about the only conversation I had with him ." Wager added that Applegate asked him what he would have to do to join the Union, "and when he talked about it , he signed up." Foster had no specific recollection of his conversations with Applegate on this occasion , and did not deny them. As Applegate was a credible witness and Wager did not impress me as such and was an unconvinc- ing witness, and upon all the evidence , I credit Ap- plegate 's testimony as set forth above. Wager had disposed of Kirby and Kelley earlier. At noontime on Monday , July 7, after seeing them driving the water wagons that morning , both to them and to Superintendent Foster , Wager chal- lenged their right to do so. He gave two alleged reasons. He said that they had not come to him first and that he had others on his referral list who should have had those jobs . To Kirby he referred to these others as "niggers " and "black boys" and said that if they "started runnning in ahead of them" there would be "hell a popping." The additional al- leged reason was that the Union hadn 't "hired" them and operators of water wagons were within the Union's jurisdiction; and Wager showed Foster a letter to that effect . Foster testified he then checked the accuracy of this conclusion with "Hol- loway's office" people and learned it to be correct. Foster then discharged Kirby and Kelley telling them , according to Foster 's testimony, that if Wager had men lined up for the job unbeknownst to Foster, he didn 't see "any alternative but to pay" them off, " as we do have a contract with the Operating Engineers to furnish our men out there." On cross-examination Kirby credibly testified: I do know for a fact that Mr. Foster wouldn't put us back to work until we ... signed up with the Union.... before we went to that union hall, Mr. Foster tried to talk Mr. Wager into 1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD letting us stay on that job and he would not, because we was not a union member. Then, Mr. Foster told Kelley and myself, once we got this straightened up and got that card signed, to come back and he would put us to work. C. Kirby Joins Union and Is Rehired Following their noon discharge, in the afternoon Kirby and Kelley went to the Union's office, where they were referred to Clifton English, the business agent for the airport project. They then went to En- glish's trailer home and talked to him. Kirby credibly testified that English told them they would have to join the Union before they could go to work on the airport project, and that "Bill Foster had no more right hiring us" than Kirby's wife had. English told them he wouldn't deny them the right to work provided they joined the Union. Then they arranged to meet at the union office the following morning. At the union office on July 8 Kirby and Kelley signed two documents or cards for English, one relating to membership until their union "book" ar- rived, the other authorizing the checkoff of $42.50 per week from wages until the initiation fee of $170 was paid. On the witness stand English denied that he told Kirby and Kelley they would have to join the Union to work out there. He quoted Kirby as stating at the beginning that he was familiar with the Union and that he would like to become a member; that he needed to go to work "real bad." English testified he told them that the Company had to have qualified men and that whether they became mem- bers of the Union had nothing to do with it. After signing up for the Local the two applicants returned to the airport and Wager put their names on the referral list. Between July 8 and 14 they applied to the steward for a job every day at 6 a.m. and 4 p.m. but there were no openings. On July 14 they were given laborers' jobs. On July 16 Wager recommended Kirby for, and Kirby was given, a job as a scraper operator, which job Kirby held until August 18, when he was discharged following an accident he had with the scraper. Kelley quit on July 17. D. Conclusions The record showed that Kirby3 considered him- self greatly in need of a job at this time. He worked 6 hours on July 7 and then had no work until July 14, when he accepted a laborer's job at laborer's pay. As has been seen, English testified that Kirby told him on July 7 that he badly neded a job. This means of course that Kirby greatly needed some in- come, some money. This was confirmed by his re- porting to the jobsite and applying for a job at 6 a.m. and 4 p.m. every day for several days despite lack of success. If he had not been in great need it is doubtful if Kirby, a qualified operating engineer, would have accepted a laborer's job. Under these circumstances it seems highly doubtful to me that Kirby would have voluntarily sought to join the Union and have some of his badly needed money checked off to the Union. It seems highly unlikely to me that he would have joined the Union and agreed to have $170 checked off for initiation fee at the rate of $42.50 per week unless he felt under considerable compulsion to do so. Upon these facts and considerations I find that the compulsion was present and that it came from Wager and English. This was consistent with Wager's compulsion upon Applegate the following day. Upon the preponde- rance of the credible evidence in the record con- sidered as a whole, and despite the contract, I con- clude and find that, as alleged in the complaint, Respondent through Wager and English warned prospective employees that they would not be referred for jobs unless and until they joined the Union, and threatened employees that Respondent would cause their discharge unless they joined the Union; Respondent thereby violating Section 8(b)(1)(A) of the Act. In causing Foster to discharge Kirby and Kelley, Wager talked about preferment for others on his referral list and about water wagon operators com- ing under the contract. But the entire record sustains the conclusion, which I reach, that these were but pretextual reasons Wager seized upon, and that the real reason was because he found them working without having joined the Union. A few days before Wager had told them that to be hired as operators they would have to join the Union and he had shown them the documents to be filled out; and now here they were operating machines without having filled out the documents for him or joined the Union insofar as he knew. In the argu- ment that ensued Superintendent Foster took the side of the employees and tried to persuade Wager to let them continue working, but Wager would not permit it because they had not joined the Union. Sensing that membership was the key to their returning, and not just going to Wager first to comply with the hiring hall provision, Superinten- dent Foster then advised Kirby and Kelley to sign up for the Union and then to come back and he would put them to work. That lack of membership rather than the bypass of the referral system was what motivated Wager to cause their discharge was further indicated by Wager's statement to Applegate and Wilson the fol- lowing day. They also had bypassed Wager when Foster put them to work on the water wagons; but on Tuesday Wager said nothing about that and in- sisted only that they had to join the Union if they were to continue working. Applegate did so and ' Kelley was not called to testify INTL. UN. OF OPERATING ENGINEERS , AFL-CIO, LOC. 819 continued working although he was never referred by the Union. Wager's suggestion from the witness stand that Applegate was retained although he had not been referred by the Union because there was a shortage of available operators that day is not credited. When Kirby and Kelley went to the jobsite that morning from the union hall, at about 11 o'clock, Wager told them he had 20 or 30 names on his referral list. Upon the above facts and considerations and the preponderance of the credible testimony in the en- tire record, I conclude and find that, despite the contract, Respondent Union, through Wager, dis- criminatorily caused the Company to discharge Kirby and Kelley on July 7, 1969, because they had not joined the Union and to encourage membership in the Union, Respondent thereby violating Section 8(b)(2) and (1)(A) of the Act.' THE REMEDY To remedy the unfair labor practices found above Respondent Union will be required to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Respondent Union having caused the discrimina- tory discharge of Luther D. Kirby and James C. Kelley, it is recommended that Respondet Union notify Holloway Construction Company, in writing, that it has no objection to the employment of Kirby and Kelley as operating engineers by that Com- pany, without prejudice to their seniority or other rights and privileges. It is further recommended that Respondent make whole Kirby and Kelley for any lack of pay they may have suffered by reason of its causing the discrimination against them, by pay- ing to them an amount equal to that which they would have earned, but for Respondent's unlawful conduct, from July 7, 1969, the date of the dis- crimination, until the date Holloway Construction Company receives Respondent's letter that Respon- dent has no objection to that Company's employ- ment of Kirby and Kelley, less the net earnings of each during said period (Crossett Lumber Company, 8 NLRB 440, 497-8), said backpay to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 N LRB 289. The backpay obligation of Respondent shall include the payment of interest at the rate of 6 per- cent to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Upon the basis of the foregoing findings of fact and the entire record in the case, I hereby make the following: CONCLUSIONS OF LAW 1. Holloway Construction Company is engaged 1127 in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union of Operating Engineers, AFL-CIO, Local 819, is a labor organization within the meaning of Section 2(5) of the Act. 3. By warning prospective employees that they would not be referred for jobs unless and until they joined the Union, and by threatening employees that Respondent would cause their discharge unless they joined the Union, Respondent Union restrained and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act, and thereby violated Section 8(b)(1)(A). 4. By causing and attempting to cause Holloway Construction Company to discharge Luther D. Kirby and James C. Kelley discriminatorily on July 7, 1969, Respondent Union violated Section 8(b)(2) and (1)(A) of the Act. 5. The aforesaid labor practices are unfair labor practices 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 upon the preponder- ance of the evidence in the entire record con- sidered as a whole , I recommend that International Union of Operating Engineers , AFL-CIO, Local 819, its officers , agents, representatives, successors, and assigns, shall: 1. Cease and desist from: (a) Causing, or attempting to cause, Holloway Construction Company to discharge Luther D. Kir- by, James C . Kelley, or any other employee, because such employee is not a member of Respon- dent Union. (b) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Notify Holloway Construction Company that Respondent Union has no objection to the employ- ment of Luther D. Kirby and James C . Kelley without regard to their membership or nonmember- ship in Respondent Union; and make Kirby and Kelley whole , in the manner prescribed in the sec- tion herein entitled "The Remedy," for any loss of earnings suffered by reason of causing the dis- crimination against them. (b) Post at Respondent Local No. 819's office, hiring hall, and meeting hall, and at any office at the jobsite where it conducts its hiring hall, and, the Company being willing, in the Company 's office at the jobsite, copies of the attached notice marked 4 Cf Local Union No 369, IBEW, AFL-CIO, and George F Node, its agent , 143 N LRB 1297 , enfd 341 F 2d 470 (C A 6) 1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "Appendix."' Copies of said notice, on forms pro- vided by the Regional Director for Region 16, after being duly signed by an authorized representative, shall be posted by said Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to em- ployees and prospective employees are customarily posted. Reasonable steps shall be taken by Respon- dent Union to insure that said notices are not al- tered, defaced, or covered by any other material. (c) Mail to the Regional Director for Region 16 signed copies of the attached notice marked "Ap- pendix" for posting by Holloway Construction Company, if said Company is willing to do so. Co- pies of said notice, to be furnished by the Regional Director, shall, after being duly signed by an authorized representative of Respondent, be forthwith returned to the Regional Director for posting. (d) Notify the Regional Director for Region 16, 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 no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regula- tions, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 6 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 MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT cause or attempt to cause Hol- loway Construction Company to discharge Luther D. Kirby and James C. Kelley, or any other employee, because such employee is not a member of Respondent Local 819. WE WILL NOT warn propsective employees that they will not be referred for jobs unless and until they join Local 819. WE WILL NOT threaten employees that Local 819 will cause their discharge unless they join Local 819. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act. WE WILL make whole Luther D. Kirby and James C. Kelley for any loss of pay they may have suffered as a result of our causing their discriminatory discharge. WE WILL notify, in writing, Holloway Con- struction Company that we have no objection to the employment of Luther D. Kirby and James C. Kelley by that Company as operating engineers without regard to their membership or nonmembership in Local 819. INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO, LOCAL 819 (Labor Organization) Dated By (Representative ) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office, 8A24 Federal Office Building, 819 Taylor Street, Fort Worth, Texas 76102, Telephone 817-334-2921.