Operating Engineers, Local 302

OPERATING ENGINEERS, LOCAL 302 21 International Union of Operating Engineers, Local 302, Affiliated With AFL-CIO and Rex Wyatt. Case 19-CB-1404 October 21, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN On June 3, 1970, Trial Examiner Leo F. Lightner issued his Decision in the above-entitled proceeding, finding that Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief, and Respondent filed a brief in answer thereto. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at this 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 briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. 'filed by General Counsel and Respondent have been carefully considered. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS I. BUSINESS OF THE EMPLOYER Mountain Pacific Chapter of the Associated General Contractors of America, Inc., is, and at all times herein material, has been an association whose membership consists of various general contractors and other employers of operating engineers in the State of Washington. Mountain Pacific was formed and exists for the purpose, inter alia, of representing its employer-members in collective-bargaining with labor organizations, including Respondent. The employer-members of Mountain Pacific, in the course and conduct of their business operations annually realize, in the aggregate, a gross income in excess of $1,000,000 and purchase goods and supplies from outside the State of Washington valued in excess of $50,000, and perform services valued in excess of $50,000 for the United States Government relating to national defense. Fiorito Brothers is a State of Washington corporation, engaged in construction in said State, with its principal place of business in Seattle, Washington. It has an annual business involving a gross income in excess of $500,000 and it imports goods from outside the State of Washington in an amount in excess of $50,000, and it is an employer-member of Mountain Pacific, and bound by the terms and conditions of a contract between Mountain Pacific and Respondent. The complaint alleges, the answer admits, and I find that Mountain Pacific and Fiorito Brothers are each employers within the meaning of Section 2(2), engaged in commerce, and in activities affecting commerce, within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE LEO F. LIGHTNER, Trial Examiner: This proceeding was heard before me in Seattle, Washington, on February 17, 1970, on the complaint of General Counsel and the answer of International Union of Operating Engineers, Local 302, Affiliated with AFL-CIO, herein referred to as Respondent.' The complaint alleges violations of Section 8(b)(2) and (1)(A) and Section 2(6) and (7) of the Labor Management Relations Act, 1947, as amended (61 Stat. 136, 73 Stat. 519, 29 U.S.C. Section 151 et seq.), herein called the Act. the parties waived oral argument and briefs 1 A charge herein was filed on April 7, 1969. A complaint was issued on October 24, 1969. II. RESPONDENT IS A LABOR ORGANIZATION The complaint alleges, the answer admits, and I find, that Respondent, at all times material herein, is and has been a labor organization within the meaning of Section 2(5) of the Act; and that the jurisdiction extended to it by its International includes the following described area in the State of Washington: the counties of Clallam, Jefferson, Mason, Grays Harbor, Kitsap, Island, San Juan, King, Snohomish, Skagit, Whatcom, Chelan, Kittitas, and that portion of Okanogan, Douglas, and Yakima lying west of the 120th meridian. III. THE UNFAIR LABOR PRACTICES The" Issue The principal issue raised by the pleadings and litigated at the hearing is whether the Respondent, as more fully set forth in the complaint , engaged in conduct in contravention of the provisions of Section 8(b)(2) and (1)(A) of the Act, by 186 NLRB No. 4 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD refusing to dispatch Rex Wyatt, as a scraper operator, at the request of Fiorito Brothers, on or about March 18, 1969, and thus caused Fiorito Brothers to discriminate against Rex Wyatt in regard to his hire in violation of Section 8(a)(3) of the Act. Respondent denied the commission of any unfair labor practice, and affirmatively asserted that for an applicant to be eligible to be referred out of order, by reason of prior employment, such applicant must have worked for such employer under the specific collective-bargaining agree- ment and that the Charging Party did not so qualify. Background The facts set forth under this section are undisputed. Effective June 1, 1968, and, by its terms, remaining in effect until May 31, 1971, a collective-bargaining agree- ment was entered into between the Mountain Pacific, Seattle Northwest and Tacoma Chapters of the Associated General Contractors of America, Inc., and Respondent. The jurisdiction of the Union set forth, supra, and the geographical coverage of the agreement are identical. We are herein concerned with what are referred to as the "Hiring Hall" provisions, contained in Appendix "A," particularly sections 3, 4, and 5. Section 3 outlines the order of reference, for hiring or rehiring, from an out-of-work list in the following sequence : Group 1, operating engineers "who have been employed by an employer or employers, parties to this agreement" who have worked 500 hours or more within a period of 2 years immediately preceding registration date; Group 2, operating engineers with the same qualifications but less than 500 hours employment within the 2-year period; and Group 3, all other applicant operating engineers. Section 3 also contains the following definitions: Employees covered by this Agreement have certain accrued rights or benefits for themselves and their dependents under health and welfare and pension plans which accrue to them by virtue of length of employment with employers party to this Agreement, and such rights are generally continuous while under employment and remain effective until a certain period of time after lay- off or discharge. Priority rights mean the right accruing to employees, as hereafter provided in this Agreement, through length of service with employers party to this Agreement which will entitle the operating engineer to a priority or preference of rehire after termination or lay-off. The Employer Associations and the Union shall make up and prepare the roster for preference of rehire by grouping all operating engineers who come within the above classifications and shall utilize the health and welfare and pension records in establishing these accrued rights based on length of employment. "Employers" under this paragraph mean, (1) any employer party to this Agreement, (2) an out-of-town employer who adopts or works under this Agreement and contributes to the health and welfare and/or pension plans, and (3) any employer who employs operating engineers under the terms of this Agreement and is a contributing employer, within the meaning of the health and welfare and pension plans. Section 4 provides: Registration or re-registration of applicants for referral shall be accepted by the Union at any time during its customary office hours. All applicants shall be registered in the order of time and date of registration. To remain on the registration list, an applicant for referral must renew his registration not later than ninety (90) days from the date of his last registration. There shall be three groupings of the out- of-work list. All operating engineers with accrued rights shall be registered in either Group I or Group 2, and all other operating engineers, who are qualified, but without accrued rights, shall be registered in Group 3. Each applicant for employment shall be required to furnish such data, records, names of employers and length of employment and licenses that may be deemed necessary, and each applicant shall complete such forms or registration as shall be submitted to him. Applicants for employment shall also list any special skills they may possess. Section 5 provides, in part: (e) The referral procedure as contained herein shall be followed except that, ( I) requests by employers for key men to act as supervisors, master mechanics or foremen shall be honored without regard to the requested man's place on the out-of-work list, (2) requests by employers for a particular man previously employed by the employer and who has been layed off or terminated by the employer within five (5) years previous to the request shall be honored without regard to the requested man's place on the out-of-work list. The same chapters of AGC also have a collective- bargaining agreement with Local 612, of the same union, whose geographical jurisdiction encompasses Pierce, Thur- ston, Lewis, and Pacific Counties, Washington, except for a portion of Pacific County therein described. The effective period of this agreement was identical to the period of the agreement between AGC and Local 302. The agreement with Local 612 contains provisions identical with those provisions of the Local 302 contract set forth supra. Fiorito Brothers is a member of the identified chapters and is a signatory to both agreements. Sequence of Events-March 18, 1969, and thereafter Elmer Warren Jones has been a foreman and job superintendent for Fiorito Brothers more than 20 years. Jones was Fiorito Brothers superintendent on an undertak- ing described as the Nisqually job, located in Thurston County, in the jurisdiction of Local 612, which the record indicates was completed approximately in the fall of 1968. Jones credibly related that, in June or July 1968, he terminated Rex Wyatt, a scraper operator, (also called a OPERATING ENGINEERS, LOCAL 302 23 pull operator) Charging Party herein, who had been employed on the Nisqually job 2 In March 1969 Jones commenced work on what is called the Yakima job, in the geographical jurisdiction of Respondent. On March 18, 1969, Jones requested that David Kellogg, dispatcher in the Yakima office, dispatch Rex Wyatt. Jones asserted that Kellogg responded that he could not clear Wyatt as Wyatt did not have "his hours in." 3 Kellogg, whom I find to be a credible witness, asserted that Jones made the request while Kellogg was at the jobsite.4 Kellogg asserted he checked the,' Yakima officelto see if Wyatt was registered .5 When Kellogg ascertained that his office had no information about Wyatt he called Seattle, and was advised by Morris Langberg, secretary of Local 302, that Wyatt had no hours of work in the area of Local 302, and, accordingly, was not eligible for a recall as a former employee within the meaning of Section 5(e)(2) of the Appendix, supra.6 General Counsel does not dispute the accuracy of Respondent's records. However, at the outset of the hearing, he asserted that the evidence would reflect discrimination on the part of Respondent in that the treatment accorded Wyatt was at variance with the treatment accorded two other employees of the Fiorito Brothers, identified as Hintz and Bauman. The record evidence of the employment of Hintz and Bauman is next set forth. Superintendent Jones credibly related that Hintz and Bauman were employed, by Fiorito Brothers, at a job identified as the Northgate job, which had started in November 1968, and was within the jurisdiction of Local 302. Thus the transfer to Yakima constituted continuous employment, and was not a recall or rehiring of either of these employees. In 1965 and 1966, Hintz worked under superintendent Jones, on what Jones identified as the Tukwila job, within the jurisdiction of Local 302. Hintz then worked, under Jones, on the Nisqually job, for several years, until it was completed. Jones then transferred Hintz directly to the Northgate job, with no break in service. The transfers of Hintz to and from the geographical areas of Local 302 and 612 did not involve a break in service. Jones credibly related he transferred Bauman from the Northgate job to the Yakima job in March 1969. There was no break in service and both jobs were in the geographical area of Local 302.7 The first time Bauman worked for Jones was, inferentially, during the summers of 1967 and 1968 on the Nisqually job. Jones acknowledged he did not advise either Local 302 or 612 when Bauman commenced work at Northgate, in the fall of 1968. Bauman acknowledged there was a break in service between the Nisqually job and the 2 It appears Wyatt was employed, by Fiorito Brothers, for about one year. 3 Kellogg asserted that if Wyatt had previously worked for Fiorito Brothers "in 302s area" he would have been eligible for employment. 4 Wyatt, having asserted that he talked to Jones previously about going to work, and relating that Jones thought he was cleared to go to work, recited one effort to obtain clearance, at the union office, on March 18, at 7:30 a.m., when Kellogg refused to issue a dispatch slip. According to Wyatt, he had a further discussion with Kellogg the following day at the jobsite, with Detore, a Fiorito partner present. I find the confusion on the precise date of the union refusal to grant clearance unimportant. Northgate job. He estimated the length of time as approximating 1 month . It follows that approval of the transfer, by Local 302, was neither sought nor obtained. According to Bauman, John Murphy, a business representative for Local 302, recognized him while Bauman was working at Northgate . Murphy knew Bauman from the latter's work on the Tolt River Dam, where Murphy was business agent during a period of 3 years in 1961, 1962, and 1963. Bauman asserted he worked in and out of the geographical area of Local 302 many times during the past 17 years, identifying Olson, inferentially the contractor, at Enumclaw, in King County, as the individual by whom he was employed. There is no evidence that Kellogg, in March 1969, was advised of the method by which Fiorito Brothers obtained the services of Bauman in the fall of 1968. I turn next to the evidence relative to the understanding of the parties to the contract relative to the meaning of the provision of section 5(e)(2) of the Appendix. Melvin Hord is manager of the Mountain Pacific Chapter of the Associated General Contractors , and has been for 11 years. Hord has been a participant in negotiations between the Association and Local 302 and, on several occasions, has been chairman of the negotiating committee. Hord credibly related that section 5(e)(2) was inserted in the agreement in 1959, at the end of an 8-week strike, during which the hiring hall clause was the main issue. Hord asserted that the chapters of AGC, identified supra, have jointly negotiated with both locals, and in 1963 , as well as in other years, have sought to obtain one agreement covering the entire geographical areas of Locals 612 and 302, without success. One reason advanced by the Unions, as a basis for their refusal, was their desire to retain local jurisdiction over hiring. Accordingly, Hord related the practice under the provisions of section 5(e)(2) has been for employers to request individuals who have worked for them "in the territory" or within the jurisdiction of the Local Union within the previous 5 years. Russell T. Conlon is business manager of Local 302 and general vice president of the International . He has been business manager, the chief executive officer in the local, for 10 years. He is also chairman of the negotiating committee of Local 302. Conlon corroborated the assertion of Hord. He asserted the interpretation of the parties of the provisions of section 5(e)(2) has been: that a man who has been previously employed by the employer and who has been laid off or terminated within 5 years "if he has worked in our area" is entitled to be called back. The number of hours the employee may have worked is of no consequence.8 5 Wyatt does not contend that he registered as unemployed with Local 302, prior to March 24. 6 Langberg, whose duties included the preparation and maintenance of records of transfers of members from other locals, corroborated Kellogg relative to their conversation. ° Bauman corroborated Jones. Dallas Stiegelmeyer has been business manager of Local 612 for 14 months, and has been business representative since January 1, 1960. In asserting that an employer could not request an individual by name who had never performed any work in the territorial area of Local 612, within the meaning of section 5(e)(2), Stiegelmeyer corroborated Conlon and (Continued) 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUDING FINDINGS It is undisputed that Respondent operates what is commonly referred to as a "hiring hall." In the Local 357 cases the Supreme Court held: If hiring halls are to be subjected to regulation that is less selective and more pervasive, Congress not the Board is the agency to do it. The Court held that Section 8(a)(3) does not outlaw all encouragement or discouragement of membership in labor organizations; only such as is accomplished by discrimina- tion is prohibited.'° Similar to the case at bar, the Supreme Court in Local 357 said. Nothing is inferrible from the present hiring hall provision except that employer and union alike sought to route "casual employees" through the union hiring hall and required a union member who circumvented it to adhere to it.li Initially, General Counsel asserted the evidence would demonstrate that the treatment accorded Wyatt, by Respondent, was at variance with that accorded Hintz and Bauman. Obviously, the last two were transferred, from Northgate to Yakima, as employees of Fiorito Brothers. In his brief, General Counsel urges that Wyatt was discriminated against, by Kellogg, in that the treatment accorded him varied from a presumed failure on the part of Murphy to inquire into the circumstances surrounding the hiring of Bauman, by Jones, at Northgate.12 There is no evidence in this record, that Murphy, or any Local 302 official, was apprised of Bauman's break in employment Assuming, without finding, that Murphy was negligent in performing his functions at Northgate, it does not follow perforce that the action of Kellogg relative to Wyatt was discriminatorily motivated. Bauman, unlike Wyatt, neither sought nor obtained a Local 302 clearance Accordingly, I find no evidence of probative value which would support a finding that the refusal of Kellogg to dispatch Wyatt, on March 18, 1969, was discriminatorily motivated. I turn next to the question of whether section 5(e)(2) of the collective-bargaining agreement, as interpreted and applied by the parties, is in derogation of the Act. I have found that a right of recall by an employer is limited to employees engaged within the geographical jurisdiction of the Union. Respondent correctly urges that Congress, in 1959, added Section 8(f) to the Act, providing in part: It shall not be an unfair labor practice under subsections (a) and (b) of this section for an employer engaged primarily in the building and construction industry to make an agreement covering employees the meaning of section 5(e)(2), Stiegelmeyer corroborated Conlon and Hord 9 Local 357, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America v N L R B, 357 U S 667, 677 10 Id at 675 11 Id at 676 12 Respondent erroneously asserts that Bauman was moved from Nisqually to Northgate without a break in service 13 Citing Local Union No 18, International Union of Operating engaged (or who, upon their employment, will be engaged) in the building and construction industry with a labor organization of which building and construction employees are members . . . because . . . (3) such agreement requires the employer to notify such labor organization of opportunities for employment with such employer, or gives such labor organization an opportu- nity to refer qualified applicants for such employment, or (4) such agreement . . . provides for priority in opportunities for employment based upon length of service with such employer, in the industry or in the particular geographical area... . Respondent urges that a consistent application of a requirement that a registrant on the out-of-work list have prior employment within the geographical area covered by the collective-bargaining agreement between Local 302 and Mountain Pacific - AGC is not violative of Section 8(b)(1)(A) or (2) of the Act.13 I concur. Accordingly, absent evidence to sustain a finding of violation of the provisions of Section 8(b)(1)(A) and (2) of the Act, I will recommend dismissal of the complaint. On the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. International Union of Operating Engineers, Local 302, Affiliated with AFL-CIO, is, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act 2. Mountain Pacific Chapter of the Associated General Contractors of America, Inc., and Fiorito Brothers are, and each has been at all times material, an employer, engaged in commerce, within the meaning of Section 2(2), (6), and (7) of the Act. 3 Respondent has not engaged in conduct constituting unfair labor practices: (1), within the meaning of Section 8(b)(2), by causing or attempting to cause Fiorito Brothers to discriminate against Rex Wyatt in regard to his hire, in violation of Section 8(a)(3); or (2), by restraining or coercing Rex Wyatt in the exercise of rights guaranteed in Section 7, in violation of Section 8(b)(1)(A) of the Act. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law, I recommend that the complaint be dismissed in its entirety. Engineers, AFL-CIO, et al (Ohio Pipe Line Construction Company, et al), 144 N LRB 1365, International Union of Operating Engineers, Local No 98, AFL-CIO (Consolidated Gas and Service Co), 155 NLRB 850, Local 542, International Union of Operating Engineers, AFL-CIO (Ralph A Marino, General Contractor), 151 NLRB 497, Local Union No 337, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO (Townsend and Battum, Inc), 147 NLRB 929, and Pacific Maritime Association, 155 NLRB 1231