Local Union 530, Laborers'

162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local Union No. 530, Laborers' International Union of North America, AFL-CIO (Cape Construction Company, Inc.) and Gordon Shope. Case 9-CB-1571 August 21, 1969 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND JENKINS On April 22, 1969, Trial Examiner James V. Constantine issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a brief in support thereof. 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 proceeding 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 brief, and the entire record in this proceeding, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations, as herein modified. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, as modified herein, and hereby orders that Respondent, Local Union No. 530, Laborers' International Union of North America , AFL-CIO, Zanesville, Ohio, its officers, agents, and representatives shall take the action set forth in the Trial Examiner's Recommended Order , as so modified: Substitute for paragraph l of the Trial Examiner's Recommended Order the following: "Cease and desist from causing or attempting to cause Cape Construction Company, Inc., to discharge or otherwise discriminate against employees in violation of Section 8(a)(3) of the Act." TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JAMES V. CONSTANTINE, Trial Examiner: This is an unfair labor practice case brought against Local Union No. 530, as Respondent, pursuant to Section 10(b) of the National Labor Relations Act, herein called the Act. 29 U.S.C. 160(b). It was commenced by a complaint issued on January 21, 1969, by the General Counsel of the National Labor Relations Board, through the Regional Director for the Ninth Region (Cincinnati, Ohio). That complaint is based on a charge filed on November 27, 1968, by Gordon Shope, the Charging Party. In essence the complaint alleges that Respondent has committed unfair labor practices prohibited by Section 8(b)(2), and that such activity affects commerce within the meaning of Section 2(6) and (7), of the Act. Respondent has answered admitting some facts set forth in the complaint but denying that it committed any unfair labor practices. Pursuant to due notice this case came on to be heard, and was tried before me, on March 6, 1969, at Zanesville, Ohio. All parties were represented at and participated in the trial, and were granted full opportunity to adduce evidence, examine and cross-examine witnesses, submit briefs, and argue orally. Briefs have been received from the General Counsel and the Respondent. Upon the entire record in this case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. AS TO JURISDICTION Cape Construction Company, Inc., herein called the Employer, a Wyoming corporation, is engaged in the business of constructing cross-country pipelines. Although its principal place of business is located in Cape Girardeau, Missouri, it constructs pipelines at various locations throughout the United States. During the year preceding January 21, 1969, when the complaint issued, the Employer performed work valued in excess of $50,000 in more than one State. I find that the Employer is an employer as defined in Section 2(2), and is engaged in commerce within the meaning of Section 2(6) and (7), of the Act, and that it will effectuate the purposes of the Act to assert jurisdiction herein. 11. THE LABOR ORGANIZATION INVOLVED Local Union No. 530, Laborers' International Union of North America, AFL-CIO, herein called Local 530, is a labor organization as defined in Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The issues in this case are: 1. Whether the Employer became a party to a contract with Respondent whereby the Employer was required to hire employees through referrals by Respondent. 2. Whether Respondent caused or attempted to cause the Employer to discharge employee Gordon Shope because of his lack of membership in Respondent during the 7-day period when Shope, under Sections 8(a)(3) and 8(f) of the Act, was free not to belong to a labor organization. In 1968 the Employer obtained a contract to construct a 26-inch cross-country pipeline from near Columbus, Ohio, for a distance of about 250 miles. On May 1, 1968,' a prejob conference was held at the Holiday Inn East in, Columbus, Ohio. Representatives of several unions attended this conference, including one or more persons from the Laborers' International, Local 530, Local 809, Local 423, Local 521, Local 534, Local 704, Local 523, 'All dates mentioned hereafter refer to 1968 except where otherwise noted. 178 NLRB No.23 LOCAL UNION 530, LABORERS' 163 and Local 123, all being Ohio locals. Also attending were representatives of the Employer and of J. L. Cox & Sons, Inc., another contractor engaged to work on the same project. At this conference the parties discussed several matters relating to the job and also the question of collective-bargaining agreements . It developed at this discussion that the Employer was signatory to "the mainline pipeline agreement." This is a collective-bargaining agreement between Mainline Pipeline Contractors and Laborers' International Union of North America. See Respondent' s Exhibit 1. The parties thereupon agreed that the terms of said mainline pipeline agreement "would be enforced on this particular job," that it "would control the assignment of laborers on this particular project in all cases," and that the project would be governed by the terms of said agreement. Among other things, said collective-bargaining agreement contains the following pertinent provisions: (a) In article II(A) the signatory employers recognize said Laborers' International as the exclusive representative of all employees of the contractors engaged in constructing "transportation mainline pipeline and underground cable work coming within the jurisdiction of [said] Union" for the purpose of collective bargaining. (b) By article II(E) all employees other than "key men" shall be hired in the following manner: Where the International Union notifies [the contractor] that in a given area, an exclusive referral system exists, the Employer agrees to use that exclusive referral procedure as the initial source for securing qualified applicants, except key men. Qualified applicants required by Employer at the start of the job must be referred by a Local within 48 hours of the receipt of the Employer's request; those required by Employer after a job has started must be referred by a local referral office within 24 hours of the receipt of Employer's request. If the local referral office fails to comply with this condition , Employer may secure qualified applicants from any other source, in which event the Employer shall immediately furnish to the Union a list of the names, addresses , and social security numbers of the men so employed (c) Article II(F) provides for a nondiscriminatory application of any "exclusive referral system " utilized pursuant to the contract. A "key man" is a " specialized person who has a specialized training in his particular type of work," according to Drexel J. Thrash, Special International Representative of Laborers' International. Further, it was agreed at this conference that the union steward would be a working steward , that such steward would check laborers on the job to be sure that they were affiliated with a local of Laborers' International , and that he would attempt to adjust any grievances of laborers on the job . Cape Construction was also told at the same time to contact Local 530 if a "problem" arose on the job, and that the man with whom Cape should communicate was Bohdan Bednarczuk, the business manager of Local 530. Bednarczuk told Union Steward Bickford to police the foregoing collective-bargaining agreement. And Bednarczuk' s predecessor in office, Rittenour, instructed Bickford " to make sure that the union and the contractor would hire through the union ." However, I find that Bickford at no time informed Bednarczuk that Shope was working on the job without being referred by the union hall of Local 530. At the above prejob conference Cape Construction Company and the Unions present agreed that since Local 530 had been selected to "police this entire project" and had a hiring hall, contractors needing laborers would obtain them by contacting Bohdan Bednarczuk, the business manager of Local 530, and advising him of the number of employees required . In those instances where the pipeline traversed the area where other unions had geographical jurisdiction , Bednarczuk would contact the union involved and obtain from it the number of laborers requisitioned by the contractor. Finally, at this conference Local 530 told Cape Construction Company that the former would designate one of the laborers on the project as job steward to represent that Union on the job. Among other things it would be the job steward's responsibility to obtain the name, address, and social security number of each laborer on the project and, after the eighth day, to request nonmembers to join the Union. Article II(B) of the contract in evidence as Respondent's Exhibit 1 provides that employees covered by it shall become and remain members after the eighth day following their hire or the effective date of the agreement, whichever is later. In late June or early July, Shope' s son-in-law, Samuel Rexroad, a member of Local 83 of the Laborers, was hired as a laborer by Foreman Hogue "off the bank," i.e., without being referred to the Employer by Local 530. About 2 weeks before this Rexroad asked Union Steward Bickford about obtaining a job on the project. Bickford replied that he was supposed to get his hands from the union hall but he was having trouble getting hands to come to the project. Shortly after Rexroad was hired Bickford asked Rexroad if the latter had a union book and, upon receiving an affirmative reply, briefly examined it. Not long before August 9 Rexroad learned that a laborer named Mike on the tie-in crew was resigning to resume his high school education . This caused Rexroad on August 11 to ask Foreman Hogue whether Hogue had obtained a replacement for Mike. When Hogue replied in the negative , Rexroad suggested that Hogue consider hiring Shope. Rexroad did not suggest to Shope that the latter obtain a referral from the hiring hall of Local 530 simply because the Company had been "hiring off the bank right along." After brief discussion Hogue told Rexroad to have Shope at the jobsite the next morning, August 12, and that Shope would then be "signed up." Rexroad then brought Shope to Hogue on the morning of August 12 and Shope was then hired by Hogue. Not long after August 12 Rexroad asked Union Steward Bickford why Bickford refused to "sign up [Shope] for the union." Bickford replied that he could not do this inasmuch as Bickford had men loafing in the union hall and that he, Bickford, had to get such men out to the job first. Later that week Rexroad overheard Foreman Hogue tell Shope that Hogue had to let Shope go ; that Hogue hated to do this because Shope was a good worker; and that Hogue had no choice but to "put a man on from a union hall." A few days following Shope' s discharge, Rexroad asked Union Steward Bickford if Bickford had notified the Company that Bickford was unable to supply laborers about the time that Shope was hired. Bickford replied that he did not have to notify the Company " ahead of time" and that it made no difference now because "we have men loafing and will just bring them in." 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cape Construction's tie-in foreman on the above project was Louis R Hogue, who in August 1968, was stationed at Columbus, Ohio The project involved laying a 26-inch p'pe for about 250 miles As such foreman, Hogue was invested with authority to hire and fire employees on his crew About August 9, a Friday, Hogue needed laborers because one or two of those working for him had quit As a result Hogue asked Bickford, the job steward of Local 530 on the project, for one or two laborers Yet none showed up on the following Monday, August 12 Consequently Hogue hired Gordon Shope as a laborer on the tie-in crew on August 12 However, Hogue knew shortly before August 12 that Bickford was not supplying him with laborers and thus agreed with Shope's sornm-law on August I 1 to hire Shope, as narrated below Shope showed up at the project on Monday, August 12, seeking employment as a laborer because Samuel Rexroad, his son in-law, an employee of Cape Construction Company, and a member of another Laborers local, had told him that Hogue was hiring laborers Rexroad had obtained this information from Hogue who had answered affirmatively Rexroad's question as to whether Hogue needed laborers About August 14 Job Steward Bickford of Local 530 happened to be near Shope on the project Shope approached him and sought to buy a union "book" from Bickford because Shope was working on the project Replying that Shope had not been hired through the Union, that Cape Construction Company had not notified Bickford that it was going to hire "in that manner," and that Bickford had men in the Union with books, Bickford refused to sell a book to Shope Another laborer present, Woodman then sought to persuade Bickford to sell a "book" to Shope, but Bickford refused because Shope had not been hired 'by the union" Then Bickford said to Shope that Shope could work the next day, Thursday, "and that will be it " Bickford's account of this occasion is substantially different, but I do not credit him on this aspect of the case However, Bickford admits that Woodman asked him why Shope could not buy a book Bickford also testified that he spoke to Shope a few moments before the above conversation I do not credit Bickford on this, not only because of his demeanor but also because he could not recall any of the contents of another conversation he claims he had with Shope the next day (See tr p 64 ) On Wednesday, August 14, Union Steward Charles Bickford informed Foreman Hogue that Shope did not have a union card and, therefore, Shope would have to be replaced And on August 15 Bickford proffered employee Richard Roan, a member of the Employer's fence crew on the project, and who had a union card, to take Shope's place I do not credit Bickford's testimony to the extent that it varies with the findings in this paragraph Shope worked on Thursday, August 15 However, when he reported to work on Friday, August 16, Shope found that he had been replaced by another man At about the same time Foreman Hogue told Shope that he, Hogue, had to let Shope go "due to the union," but hated to do so, and that Shope would be replaced by a man from the fence crew Hogue explained that he took this action because Union Steward Charles Bickford had mentioned that Shope did not have a union card, and Hogue also told Shope to "get straight" with Bickford (Hogue also testified that he thought Shope thereafter was transferred to the Employer's "dope gang," but I find that he was not so transferred ) However, since Shope had already appeared on the job Hoeue permitted Shope to work there for the remainder of the day Shope finishea the day working on the project, but he never reported back to said job Hogue then reported his actions to his superintendent, telling the latter that Bickford insisted on laying off or replacing Shope because Shope had no union card On prior occasions Hogue was compelled to hire laborers for this project from the street or "off the bank," i e , they were not referred to him b5 Local 530, because Local 530 had not honored his requests to have laborers sent to him when he needed them Such requests were transmitted through Union Steward Charles Bickford Respondent's contrary evidence is not credited In addition to settling grievances, Union Job Steward Bickford checked the laborers on the crews to ascertain whether they belonged to the Union He also asked Hogue for a list of names of those laborers working on such crews In fact, Hogue always dealt with Bickford as the representative of the Union, and neither knew nor dealt with Business Manager Bednarczuk on any matters Thus Hogue always asked Job Steward Bickford for men whenever Hogue needed laborers on the project However, on one or two occasions when Bickford did not come to work, Hogue asked his superior, the superintendent, to call the union hall for laborers needed on Hogue's crew Concluding Findings and Discussion The first question is whether a contract existed between Cape Construction Company and Local 530 1 find that the parties orally agreed to be bound by the mainline pipeline contract between Laborers' International Union and the Pipe Line Contractors Association (Resp Exh 1), and that such oral agreement is legally effective to make such document operative as a collective-bargaining contract between Cape Construction Company and Local 530 And I further find that said collective-bargaining agreement contains a valid clause requiring the Employer to obtain laborers exclusively from the referral office of Local 530 unless said Local 530 fails to supply them within 24 hours of the Employer's request therefor See Article II(E) A contract providing that an employer party thereto must obtain his employees exclusively by referral from the union party thereto, and that such employer may not hire from other sources until the union fails to refer employees within a reasonable time, has been upheld by the Supreme Court Citation of authority would be supererogatory Such contract is valid on its face if it obligates the union to administer said referral system in a nondiscriminatory manner without regard to an applicant's membership or nonmembership in the union Local 357 v N L R B 365 U S 667 I find that the contract involved in this proceeding contains such safeguards and, therefore, the text thereof (See Article II(F)) complies with legal requirements See Shears Pharmacy Inc 137 NLRB 451, 453 Further, I find that the collective-bargaining contract between Cape Construction Company and Local 530 (Resp's Exh 1) does not offend the Act notwithstanding that said contract (1) compels employees to acquire and maintain membership in the Union "commencing on the 8th day following the beginning of such employment or the effective date of the agreement, whichever is later" (art II(B)), and (2) no evidence was introduced at the hearing that the Union enjoyed majority status when the contract became effective This is because I find that Cape Construction Company is an employer engaged primarily LOCAL UNION 530, LABORERS' 165 in the building and construction industry, that the laborers it hired were engaged in the building and construction industry, that the agreement covered such laborers, and that Local 530 is a labor organization of which building and construction employees are members. In this connection I find that the laying of pipe on the project involved constitutes work embraced by the designation "building and construction." Hence I find that the majority status of Local 530 need not be established affirmatively prior to the making of said agreement. See Section 8(f)(l) of the Act. It follows, and I find, that such agreement may require union membership as a condition of employment after the seventh day following the beginning of such employment or the effective date of the agreement, whichever is later. See Section 8(f)(2) of the Act. Since the contract is valid on its face, the Employer was required to obtain its laborers by referral from Local 530 unless the Union failed to supply them within 24 hours of any request for such by the Employer; and Local 530 could lawfully demand dismissal of employees not so referred N L R.B v. Operating Engineers, 323 F.2d 545 (C.A. 9). However, I find that Local 530 did not by August 12 honor Foreman Hogue's request of August 9 for a laborer; and I further find that Hogue was justified, and did not breach the contract, in hiring Shope on August 12 by reason of the failure of Local 530 to refer a laborer to the Employer within 24 hours after Hogue's request. Hence I find that Local 530 could not lawfully demand the dismissal of Shope on the ground he was not referred to the Employer by Local 530. And Hogue was justified in making his requests to Steward Bickford because of past practices. The question now is whether Local 530 caused or attempted to cause the Employer to discharge Shope in violation of Section 8(a)(3) of the Act It is my opinion, and I find, that Local 530 attempted to cause, and did cause, Cape Construction Company to discharge Shope contrary to the prohibitions of Section 8(a)(3) of the Act, that thereby Cape Construction Company unlawfully discriminated against Shope, and that such conduct by Local 530 is forbidden by Section 8(b)(2) of the Act. Cf. Local 120, Laborers, 174 NLRB No 150, fn. 1. This ultimate finding is based on the entire record and the findings, which follow, to the effect that Union Steward Bickford attempted to cause, and did cause, Hogue to discharge Shope, and that Local 530 may be held responsible for Bickford's foregoing conduct. In the first place I credit the General Counsel's testimony that (1) on August 14 Bickford told Shope that Shope was not hired through the Union, and that Shope therefore could work only the next day and "that will be it," and (2) on the same day Bickford told Foreman Hogue that Shope did not have a union card and Shope would have to be replaced, and also tendered employee Roan to replace Shope. Cf. Local No. 444, Iron Workers, 174 NLRB No. 164, 1 do not credit Bickford's testimony inconsistent with these findings. Secondly, I find that Bickford's duties as union steward were such that it was within the apparent, if not actual, scope of his authority as such to demand the discharge of laborers who neither were referred by the Union nor were union members. This finding emerges from the fact, which I find, that Bickford was empowered by Local 530 to police the collective-bargaining agreement on such matters as ascertaining whether laborers on the job belonged to the Union, and also to process grievances for laborers claiming to be aggrieved on the project. No contrary finding is dictated by the fact, which I find, that Bickford was a working steward. For it is not the nature of his work for the Employer which determines whether the Union is responsible for his actions in policing the contract. Rather, the test is whether he was invested with actual or apparent authority to act on behalf of the Union concerning matters arising under the contract. Nor is a different result required because Union Official Bednarczuk never was informed of Shope's hiring or discharge. This is because I have found that it was within Bickford's sphere to police the contract and that as part of such authority he was empowered to demand that the Employer discharge persons whomBickford believed- whether rightly or wrongly-to have been improperly hired. Hence Bednarczuk's lack of knowledge is not fatal to the General Counsel's case. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing the free flow of commerce. V. THE REMEDY As Respondent has been found to have engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take specific affirmative action, as set forth below, designed to effectuate the policies of the Act It will be further recommended that Local 530 withdraw opposition to the immediate and full reinstatement by the Employer of Gordon Shope to his former position or one substantially equivalent thereto, and that Local 530 make Shope whole for any loss of earnings suffered by his discriminatory discharge by paying to him a sum of money for such loss. Said sum shall be equal to such earnings as he would have earned as wages from the date of his discharge by Cape Construction Company to the date Respondent notifies the Employer that it has no objection to the employment of Shope, less his net earnings during such period Any backpay shall be computed on a quarterly basis in the manner prescribed in F W Woolworth Company, 90 NLRB 289, with interest thereon at 6 percent per annum pursuant to the formula adopted in Isis Plumbing & Heating Co., 138 NLRB 716. Respondent's conduct does not demonstrate general hostility to the Act. Accordingly, I find that a narrow order is warranted limited to enjoining Local 530 from repeating the activities found herein to contravene the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following. CONCLUSIONS OF LAW 1. Local 530 is a labor organization within the meaning of Sections 2(5) and 8(b) of the Act. 2. Cape Construction Company is an employer engaged in commerce as defined in Section 2(6) and (7) of the Act. 3. By attempting to cause and causing the Employer, Cape Construction Company, to discriminate against Gordon Shope, an employee thereof, in violation of Section 8(a)(3) of the Act, Local 530 has engaged in 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unfair labor practices within the meaning of Section 8(b)(2) of the Act. 4. The above-described unfair 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 above findings of fact and conclusions of law and the entire record in this-case, I recommend that the Board issue an Order directing that Local 530 and its officers, agents, representatives, successors, and assigns, shall: 1. Cease and desist from causing or attempting to cause Cape Construction Company, Inc., to discharge or otherwise discriminate against Gordon Shope because of nonmembership in a labor organization or because he has not been referred by Local 530, or to discriminate against any other employee of Cape because of nonmembership in a labor organization. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Notify Cape Construction Company, Inc., in writing, and furnish Shope with a copy thereof, that it has no objection to the employment of Gordon Shope and to his immediate and full reinstatement to his former or substantially equivalent position. (b) Make whole Gordon Shope for any loss of pay he may have suffered by reason of the discrimination against him, in the manner set forth in the section herein entitled "The Remedy." (Since the record discloses that Gordon Shope is a father-in-law, he is of an age warranting that the usual provision about notifying a person in the Armed Forces about reinstatement will be omitted.) (c) Post at the business offices and meeting halls of Local 530 copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by an authorized representative of Respondent, shall be posted by Respondent immediately upon receipt thereof, and shall be maintained by it for 60 consecutive 'If 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 if the Board's Order is enforced by a decree of a United States Court of Appeals , the notice shall be further amended by substituting the words "a Decree of the United States Court of Appeals Enforcing an Order" for the words "a Decision and Order." 'if 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 " days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by such Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 9, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith.' Dated By NOTICE TO ALL MEMBERS OF LOCAL UNION No. 530, LABORERS INTERNATIONAL UNION OF NORTH AMERICA 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 National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT cause or attempt to cause Cape Construction Company, Inc., to discharge or otherwise discriminate against Gordon Shope because of nonmembership in a labor organization or because he has not been referred by us, or to discriminate against any other employee of Cape because of nonmembership in a labor organization. WE WILL notify, in writing, Cape Construction Company, Inc., that we have no objection to the employment of Gordon Shope and to his immediate and full reinstatement to his former or substantially equivalent position. WE WILL make Gordon Shope whole for any loss of pay he may have suffered by reason of any discriminatory action by us against him. LOCAL UNION No. 530, LABORERS INTERNATIONAL UNION OF NORTH AMERICA, AFL-CIO (Labor Organization) APPENDIX (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If members have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Room 2407 Federal Office Building, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513-684-3663.