Local 825, Operating Engineers

50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 825, International Union of Operating Engi- neers, AFL-CIO, and Daniel F. Flynn and Associ- ated General Contractors of New Jersey, Party to the Contract. Case 22-CB-1612 December 7, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On June 23, 1970, Trial Examiner Lloyd S. Greenidge issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in any unfair labor practices in violation of the National Labor Relations Act, as amended, as alleged in the complaint, and recommending that the complaint be dismissed in its entirety. Thereafter, the General Counsel filed exceptions to the Trial Examin- er's Decision and a supporting brief. 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 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 briefs, and the entire record in the 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 hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE LLOYD S. GREENIDGE , Trial Examiner : This proceeding, with all parties represented , was heard on April 29 and May 5, 1970, at Newark, New Jersey, on the complaint of the General Counsel issued on February 20, 1970,1 and answer of Local 825 , International Union of Operating Engineers, AFL-CIO, herein called the Respondent or Union . In issue is the question whether the Respondent, in violation of Section 8(bxl)(A) and (2) of the National Labor Relations Act, as amended, herein called the Act, failed and refused I The complaint is based on a charge filed on January 5, 1970, a copy of which was duly served on the Respondent by registered mail on the same day 2 Unless otherwise indicated, the findings in this section are based on exhibits and credited testimony which is either admitted or undisputed 3 Although the expiration date of the contract is June 30, 1968 (before to refer Daniel F. Flynn for employment by employer- members of Associated General Contractors of New Jersey or other employers because he had announced his candidacy for president-business manager of the Respon- dent. Briefs were received from the General Counsel and the Respondent. Upon the entire record, and from my observation of the demeanor of the witnesses, and with due consideration being given to the arguments advanced by the parties, I make the following: FINDINGS OF FACT 1. JURISDICTION At all material times, Respondent has been a party to a collective-bargaining contract with Associated General Contractors of New Jersey (AGC), consisting of employers providing and performing building and construction services valued in excess of $50,000 in interstate commerce. It is stipulated, and I find, that AGC is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is admitted, and I find, that the Respondent is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Evidence 2 1. Respondent's hiring hall In accordance with the terms of Respondent's collective- bargaining contract with AGC and other employers,3 the Respondent maintains a nondiscriminatory exclusive hiring hall for the referral of engineers, apprentice engineers, firemen, or maintenance engineers . Under this hiring arrangement or practice, employers are required to direct all manpower requests to the Union and the Union, in turn, is obligated to refer job applicants on a nondiscriminatory basis. A listing of referral considerations depending on the applicant's employment history with the contracting employers, qualifications, age, and residence is set forth in article I of the contract. It was stipulated and agreed that, at all material times, the foregoing referral provisions governed the hiring of employees in the engineer trade by employer members of AGC. The unfair labor practice charge herein arose out of Respondent's refusal to refer Daniel F. Flynn for employment under the circumstances detailed below. 2. The refusal to refer Flynn Flynn, a crane operator, has been a member of Respondent since about 1942 and , from that year until the events here in issue), the contract provides that it "shall continue in force and effect automatically from year to year thereafter unless either party serves notice of termination sixty (60) days prior to the expiration date " All parties stipulated that the hiring hall provision contained therein was operative at all times material 187 NLRB No. 6 LOCAL 825, OPERATING ENGINEERS 51 1955, used the facilities of Respondent's hiring hall for job referrals without incident. In 1955, Flynn started a crane rental business known as Colonial Equipment Company but, 8 years later, the company went out of business. Shortly thereafter, Flynn returned to the hiring hall and was routinely dispatched to available jobs. In 1961, Flynn began another crane rental venture, this time under the name of Oscar Leasing, Inc.4 Oscar Leasing continued in business until June 1969 when it, too, ceased operations, the consequences of which are here in dispute. About mid-July 1969,5 Flynn telephoned the hiring hall, advised one Robert McKay that he was looking for employment, and requested that his name be placed on the out-of-work list. McKay told Flynn that he would have to see Peter W. Weber, Respondent's president and business manager, before he (McKay) could put his name on the list. About 1 week later, Flynn again called the hiring hall and once more requested that his name be added to the list. Like before, McKay told him this could not be done but gave no reason or explanation for his refusal to comply with the request.6 On August 28, 1969, Flynn sent two letters to the Union, copies of each to Peter W. Weber and others. In one, he stated: I, Daniel F. Flynn, am a paid up member of Local 825A, book register number 345129, classification of engineer, dated, January 5, 1942. On July 28, 1969 I requested that my name be included on the out of work list and was informed on August 5, 1969 that my name would not be put on the list for out of work members. I now take this opportunity of making the foregoing facts a matter of record. In the other, Flynn advised: I, Daniel F. Flynn, am a member of Local 825A, 4 Fleming Avenue, Newark, N.J., book register number 345129, dated January 5, 1942. I take this opportunity to state I will be a candidate for the office of President- Business Manager of Local 825A, B and C at the next election of that same local. There is no evidence of a response to either communication although receipt of both was acknowledged. Sometime in September, Flynn appeared in the Board's Regional Office for the purpose of filing a charge against the Union. In the course of an interview with a Board agent, someone called the Union's office and Flynn talked to McKay. Shortly thereafter, Flynn went to the hiring hall and filled out a registration card provided by McKay. At a membership meeting in October, Flynn informed the group of the letter to the Union in which he had announced his candidacy for office. Later during the meeting, President Weber told Flynn that it is a policy of 4 Flynn holds the title of vice president in this company. 5 Unless otherwise stated, all dates hereinafter are in 1969. 8 Respondent objected to the introduction of statements attributed to McKay on the ground that he was not shown to be an agent of the Respondent whose statements are binding on it. Flynn testified, credibly and without contradiction, that he has known McKay for 15 to 18 years; that McKay is responsible for dispatching applicants to jobs; and that, while in business for himself from 1961 to 1969, he had obtained more than 100 employees on referrals from McKay. McKay was not called as a witness and the failure to call him was not explained. In dispatching or refusing to dispatch job applicants, McKay is acting within the scope of his apparent authority. Further, since he has performed these duties for a the Union not to refer contractors and, for this reason, the Union would not refer Flynn. The Union's position was restated to Flynn at union meetings in November and December.? It does not appear that, at any of the meetings, Flynn challenged the asserted reason for the refusal to refer him. On February 11, the Union sent Flynn a letter which read as follows: With respect to your recent application to utilize the services of the Local Union's Hiring Hall, please be advised that the records of the Local Union establish that you have been engaged in the contracting business for several years and have not utilized our services during the period of time. In order to bring our records up to date on your present status and to consider your application properly, it is requested that you bring to the attention of the Executive Board, all information pertinent to your present status. As you are aware, persons who are contractors have not, under well established Local Union policy, been permitted to utilize the services of the Local Union, more particularly the referral system. However, if a bona fide employee, the Local Union, consistent with its obligations under Law, has main- tained and will maintain a referral system for their use. The next meeting of the Executive Board is scheduled to take place on Friday, February 13, 1970 at 1:30 PM at the Union's Welfare Offices at 1100 McCarter Highway, Newark, N.J. In order to permit you the opportunity to attend that meeting, if you so desire, this letter is being sent Special Delivery to expedite its receipt. If you are unable to appear, or present your position to the Executive Board by that time, the next regularly scheduled meeting of the Executive Board will take place sometime in the second week of March, 1970. Flynn accepted the invitation and appeared before the executive board on February 13. During the meeting, John Yanuzzi, the Union's vice president, asked Flynn whether he was still in the contracting business and he replied in the negative. After this, Jack Pierson, a business agent and member of the executive board, queried Flynn as to the current status of his company and Flynn retorted, according to Flynn, that it was defunct but had not been dissolved. Yanuzzi recalled Flynn's response to be that he was not sure that the company had been dissolved. About this point someone inquired whether Flynn had any equipment and he said no. Flynn explained at the hearing that the equipment was repossessed in the spring of 1969, apparently, for nonpayment of the notes thereon. The number of years, members and applicants alike have reasonable cause to believe that he, in fact, possesses authority to act for the Respondent in this manner . Accordingly, overruling the objection , I find that, at all material times, McKay has been and is an agent of the Respondent within the meaning of Sec. 2(13) of the Act. See Local 825, International Brotherhood of Operating Engineers, AFL-CIO (Carleton Brothers Company), 131 NLRB 452, 457, In. 4. r Flynn was employed as an ironworker from mid-August until about October 13 when he sustained an injury to his right leg. Since December, he has collected unemployment insurance and has filed a claim for workmen's compensation. 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD executive board deliberated for a while and then someone told Flynn that he would be notified of its decision. By letter dated February 17, the Union advised Flynn as follows: The Executive Board has reviewed your position concerning your present status and has concluded that, based upon all the evidence submitted to it both by you and by its investigation, that you are still in the Contracting business. At the hearing, Flynn admitted that Oscar Leasing has not been dissolved under the laws of the State of New Jersey and that, during the period from July 1969 until early 1970, checks were written against the account of the company.8 Further, he acknowledged that Oscar Leasing has a 3-year collective agreement with the Union which is still in effect. Section 5, article 1 , of the collective-bargaining contract under discussion affords "any workman on the employ- ment list," aggrieved by an exclusion from a job referral, the right to appeal the exclusion to ajoint board. Accepting for the purpose of discussion only Flynn's contention that as a member of the Union he was entitled to a referral under the terms of the contract, admittedly Flynn did not seek a review of the executive board's decision by an appeal to the joint board. 3. Concluding findings Under settled authority, a union which undertakes to operate an exclusive hiring hall established by contract or other arrangement violates Section 8(b)(2) and (1)(A) of the Act if it refuses to refer a job applicant for employment for reasons related to his union or concerted activities. Local 357, International Brotherhood of Teamsters (Los Angeles- Seattle Motor Express) v. N.L.R.B., 365 U.S. 667; Local 269, International Brotherhood of Electrical Workers, AFL-CIO (Mercer County Division, etc., National Electrical Contrac- tors Association), 149 NLRB 768, enfd. 357 F.2d 51, 55 (C.A. 3); International Brotherhood of Electrical Workers, Local Union 340, AFL-CIO (Walsh Construction Company), 131 NLRB 260, enfd. 301 F.2d 824 (C.A. 9). It is also well established that the activities of employees to oust an incumbent union leader and elect a new officer in a union election are concerted activities protected by Section 7 of the Act. Local 138, International Union of Operating Engineers, AFL-CIO (A. Cestone Co.), 118 NLRB 669, enfd. 254 F.2d 958 (C.A. 2); Falstaff Brewing Corporation, 128 NLRB 294, 305, enfd. 301 F.2d 216 (C.A. 8). The complaint alleges, and the answer denies, that, from on or about September 9, 1969, Respondent failed and refused to refer Flynn for employment by employer- members of AGC or other employers because he had "announced his candidacy for President- Business Manager of Respondent" and for "other reasons than his failure to tender periodic dues and initiation fees pursuant to an agreement in conformity with the provisions of Section 8(a)(3) and 8(f) of the Act." Prior to the hearing, Respondent moved for a bill of particulars demanding, inter alia, that it be furnished information with respect to the "other reasons" alleged in paragraph 15 of the complaint to have been a basis for the refusal to refer. By order dated March 12, 1970, Trial Examiner Charles W. Schneider directed the General Counsel to furnish the Respondent a statement of the "other reasons." In response thereto, the General Counsel, on or about March 13, 1970, advised the Respondent that "the other reasons" referred to in the aforementioned paragraph "are presently unknown" and, at the hearing, he announced that "we do not know or have any present knowledge of the other reasons." In essence, then, the General Counsel contends that Respon- dent's refusal to refer Flynn, as required by the contractual hiring hall provision, was motivated by its resentment of his intraunion political activities and that, for this reason, Respondent violated Section 8(b)(2) and (l)(A) of the Act. Obviously with this posture of the issue and on this point, it is unnecessary to show that a job was open at the time Flynn requested referral for a discrimination may be inferred where it is clear that the Union's attitude toward an applicant would make reapplication, when work became available, a futile gesture . N. L. R. B. v. Local 803, Interna- tional Brotherhood of Boilermakers, etc. (Harbor Ship Maintenance Co.), 218 F.2d 299, 302 (C.A. 3); N.L.R.B. v. The Lumus Company, 210 F.2d 377, 380-381 (C.A. 5). If Respondent's failure or refusal to refer Flynn was due to the exercise of protected concerted activities, a violation of the Act is established. The record shows that Flynn, a member of long standing in the Union, actively sought to replace Peter W. Weber as president-business manager of Local 825. His intention was first expressed in a letter to the Union dated August 28 and then voiced at a union meeting in October. It is not without significance, however, that Flynn announced his candidacy about 2 years in advance of the time when a vacancy was due to occur.9 He attributed the timing to a belief that (a) the next election would be held in August 1970 and it was necessary to give notice of his intention 6 months in advance thereof, and (b) the results of the last election are inconclusive as they are being contested in court. Granted Flynn was mistaken in his belief about the year of the next scheduled election, the fact is he made known his bid for office about 6 months in advance of the date when a declaration of intent could properly be filed even under his interpretation of the Union's constitutional requirements.10 Further, reliance on a favorable outcome of a pending court proceeding is hardly an adequate basis on which to predicate a present campaign. The inadequacy of the explanations advanced by Flynn for the timing of the announcement reflects adversely on the motive for his action. Respondent readily acknowledged receipt of the two aforementioned letters from Flynn, one of which notified the Union of his candidacy. While it is clear, and I find, that Peter Weber was aware of Flynn's intraunion political activities, there is no showing that Flynn incurred Weber's enmity as a result of such conduct. Indeed, there is no 8 One such check dated July 24, 1969, in an amount of $2,000 and in August 1968. payable to cash , was endorsed by Flynn. According to Flynn, the money 10 According to Respondent's attorney, a notice of intent must be filed represents but a fraction of his total investment in the company. not sooner than 4 months before the date of a scheduled election. 9 Elections are held once every 3 years The last election was conducted LOCAL 825, OPERATING ENGINEERS 53 evidence that Flynn's activities were ever mentioned by Weber or any other union official. Coning now to the crucial question of the alleged failure and refusal to refer, the General Counsel contends, as aforestated, that Flynn was discriminated against because he announced his candidacy on August 28. The fact is, however, that Flynn was denied a referral before receipt of the announcement and on two separate occasions-one in July, the other in early August. That Flynn was denied a referral is conceded. In defense, Respondent contends that, at all material times, it was motivated by a reasonable belief that Flynn was an independent contractor and not an employee and, therefore, that the rights guaranteed to employees in Section 7 of the Act were not available to him. In this regard, Respondent points to the fact that, intermittently over a period of about 14 years, Flynn has been engaged in business for himself. Further, it is contended that, during the 8-year period immediately preceding his initial request for a referral in July 1969, Flynn had requested and obtained from the hiring hall more than 100 workmen for employment in his business and that, currently, he has a collective agreement with the Union. Respondent also contends that the invitation to Flynn to attend the February 11 meeting of the executive board was a good-faith attempt by the Union to ascertain his present status in order for it to rule fairly on his application to use the hiring hall. In explaining the executive board's decision, Yanuzzi testified that Flynn should have known whether he was in or out of business and his uncertainty about his status was a factor in the decision to apply the Union's policy of not referring contractors to him.ii Flynn argues, however, that he and other individuals were referred at times when they operated as contractors. There is no merit in the argument. As to the Union's alleged referrals of Flynn, Flynn admitted that he did not personally appear in the hiring hall during the 8- year period prior to September 1969, and that the referrals to which he alludes were no more than instances when the Union acquiesced in notices from Flynn that he would perform certain jobs himself on his own equipment. And, as to the alleged referrals of other contractors, not one was called to testify nor was the absence of a witness accounted for. In view of the foregoing and the record as a whole, I am led to the conclusion that Respondent's refusal to refer Flynn was not discriminatorily motivated by the fact that 11 Flynn's assertion that he told the executive board his company had not been dissolved serves to reinforce its ultimate conclusion 12 Miranda Fuel Company, Inc, 140 NLRB 181, enforcement denied 326 F 2d 172 (C A 2) 13 See Local Union No 18, International Union of Operating Engineers, AFL-CIO, and its Agent, George E Miller (Ohio Pipe Line Construction he had announced his candidacy. Quite to the contrary, the evidence shows that Flynn was denied a referral before he made known his intention to run for office and that the announcement itself was greeted with stoic forbearance. Nor is the evidence sufficient to support a finding that Flynn was not referred for "unfair or irrelevant or invidious" reasons within the principles enunciated by the Board in the Miranda decision.12 The most that can be said is that Respondent deliberately refused to refer Flynn. However, the refusal was prompted by an honest and reasonable belief that Flynn was outside the bargaining unit and, consequently, that there was no legal obligation to refer him.13 That Respondent may have been mistaken in believing that Flynn was still a contractor is not determina- tive, absent a showing-not present here-that the action taken against him was arbitrary and without a lawful purpose.14 As Justice Burton aptly said in Ford Motor Co. v. Huffman: 15 A wide range of reasonableness must be allowed a statutory bargaining representative in serving the unit it represents, subject always to complete good faith and honesty of purpose in the exercise of its discretion. In short, I find that the Respondent refused to refer Flynn from the hiring hall for a legitimate union purpose; 16 namely, a desire to limit referrals to individuals who are employees under the Act. It follows, and I further find and conclude, that Respondent did not violate Section 8(b)(1)(A) or (2) of the Act. Accordingly , I shall re- commend that the complaint be dismissed in its entirety. CONCLUSIONS OF LAW 1. Associated General Contractors of New Jersey is engaged in commerce and the Union is a labor organiza- tion, all within the meaning of the Act. 2. The General Counsel has failed to establish by a preponderance of the evidence that the Respondent has engaged in or is engaging in the unfair labor practices alleged in the complaint. RECOMMENDED ORDER On the basis of the foregoing findings of fact and conclusions of law, and on the entire record in the case, I recommend that the complaint herein be dismissed in its entirety. Company) 144 NLRB 1365, 1368. 14 Miranda Fuel Company, Inc, supra 's 345 U S 330, 338 16 Local 357, International Brotherhood of Teamsters (Los Angeles-Seattle Motor Express) v. N L R .B, supra