Laborers Local 83

LABORERS LOCAL 83 Laborers' International Union of North America, AFL-CIO, Local No. 83 (Fry, Inc., and Custodis Construction Company) and Vernon Sims. Case 9- CB-2285 August 9, 1973 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On April 20, 1973, Administrative Law Judge Well- ington A. Gillis issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions. 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and has decided to affirm the rulings, findings, and conclu- sions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, Laborers' International Union of North America, AFL-CIO, Local No. 83, Gallipolis, Ohio, its officers, agents, and representa- tives, shall take the action set forth in the said recom- mended Order. DECISION STATEMENT OF THE CASE WELLINGTON A. GILLIS, Administrative Law Judge: This case was tried before me on February 14, 1973, at Gallipolis, Ohio, and is based upon a charge and an amended charge filed on October 5 and November 6, 1972, respectively, by Vernon Sims, an individual, upon the complaint issued on December 4, 1972, and amended at the hearing, by the General Counsel for the National Labor Relations Board, hereinafter referred to as the Board, against Laborers' Inter- national Union of North America, AFL-CIO, Local No. 83, hereinafter referred to as the Respondent or the Union, alleging violations of Section 8(b)(I)(A) and (2) and Section 2(6) and (7) of the National Labor Relations Act, as amended (61 Stat. 136), and upon an answer timely filed by the Respondent denying the commission of any unfair labor practices. All parties were represented by counsel, and were afford- III THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues 1. Whether, on August 7, 1972,2 Lynkis Jackson, field representative for Local 83, attempted to cause William Carnes, project manager for Custodis Construction Co., to lay off Vernon Sims, in violation of Section 8(b)(1)(A) and (2) of the Act. 2. Whether, since the second week of September 1972, Local 83 has caused or attempted to cause James Hazelrigg, construction superintendent for Fry, Inc., to refuse to hire Sims, Clyde Hatfield, and Joe Hanna, in violation of Sec- tion 8(b)(1)(A) and (2) of the Act. 1 The transcript, otherwise flawless and extremely well prepared, contains two minor errors which I hereby correct. on p. 74, 1. 24, "cooperation" shall read "corroboration", on p 155, 1 15, "along" shall read "alone." 2 Unless otherwise noted, all dates herein refer to the year 1972 399 ed full opportunity to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, and to engage in oral argument. Timely briefs were filed by counsel for the General Counsel and for the Respondent. Upon the entire record in this case,' and from my obser- vation of the witnesses, and their demeanor on the witness stand, and upon substantial, reliable evidence "considered along with the consistency and inherent probability of testi- mony" (Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 496), I make the following: FINDINGS AND CONCLUSIONS I THE BUSINESS OF THE EMPLOYERS Fry, Inc., an Ohio corporation with its main office located in Springfield, Ohio, is engaged in various states of the United States in the building and construction industry as a general contractor, particularly at Gallipolis, Ohio. Custodis Construction Company, a New Jersey corpora- tion with its main office located in Chicago, Illinois, is also engaged in various states of the United States as a general contractor in the building and construction industry, and particularly at Cheshire, Ohio. During the 12-month period immediately preceding the issuance of the complaint, Fry, Inc., and Custodis, each had a direct inflow of goods and materials valued in excess of $50,000 which had been purchased and caused to be shipped to its construction sites in Ohio directly from points located outside the State of Ohio. I find that Fry, Inc., and Custodis Construction Company are employers as defined in Section 2(2) of the Act, and are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE RESPONDENT LABOR ORGANIZATION I find that Laborers' International Union of North Amer- ica, AFL-CIO, Local No. 83, is a labor organization within the meaning of Section 2(5) of the Act. 205 NLRB No. 77 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Facts 1. The August Custodis allegation In July and August 1972, the Custodis Construction Company was engaged in the Gavin Power Plant project at Cheshire, Ohio, on Route 7 some 4 miles up the road from Gallipolis. At a Local 83 union meeting held during the last week of July, Business Agent Thurman Hughes approached laborer Joseph Hanna and asked him if he wanted to go to work for Custodis on the smokestack on the Gavin project. Hanna, in reply, asked Hughes about Clyde Hatfield, who was there also. Hughes told Hatfield, he, too, could go to work on the project. At this point, young Vernon Sims, 21-year-old son-in-law of Hatfield, asked Hughes what about going to work on the job also, to which Hughes re- plied that they only needed two men and that he would have to get his own job, stating further that he had just given him a job the other day. On August 1, Hanna and Hatfield reported for work at the Gavin Power Plant, and Sims went with them.3 Sims spoke with Earl Kriebs, general foreman of the night shift, who apparently had need for another laborer, and put him to work also. On August 7, a few days after these three men com- menced work at Gavin, William Carnes, project manager, was talking with Lynkis Jackson, field representative for the Union, and in the process of ordering some laborers for the job. At one point during the conversation, Jackson said to Carnes, "do you know that you hired a man the other night on the third shift that doesn't have a union book, and he wasn't sent out of the hall." Upon Jackson mentioning the name of Sims, Carnes replied that he was not aware of this, but that he would check on it 4 That night, apparently as the shift was about to go on, in front of some 20 men, Knebs, a note in his hand, asked if Vernon Sims were there. When Sims made known his pres- ence, Kriebs stated that Lynkis Jackson had called and said that Sims did not belong to the Union. At that, Sims pulled out his union card and showed it to Kriebs. Kriebs told him to go to work and to check into the office the next day.' The following morning, August 8 , Sims, Hanna, and Hat- field, all went by the office. Sims told Carnes that it was his understanding that the Union said that he did not have a union card. Sims then showed Carnes his union book, which indicated that his dues were paid up. Carnes then told him that he could work there as far as he was concerned and that if anything were done about it, the Union would have to do it. Approximately a week later, Carnes, in the process of requesting referrals for the job, raised the matter with Jack- son, stating to Jackson that he had told him that Sims did 3 These three men, all members in good standing of Local 83, were close friends ° While Carnes was not too certain on exact dates as to Sims' employment on this conversation, I found him to be a forthright and honest witness, from whose testimony the above account is taken I do not credit Jackson 's testi- mony that this conversation was limited to his inquiry as to "who did the hiring " 5 Neither Hanna nor Hatfield corroborated Sims to the effect that Kriebs added that Jackson said to lay him off Kriebs did not testify and therefore Sims' testimony on this stands by itself Had Knebs made the statement, however, I believe Hanna and Hatfield would have so testified I find that this was not part of Knebs' statement to the assembled men not ever have a book. Jackson's only reply was to the effect that, "Well, he wasn't sent out of the union hall." 6 Conclusion As to this incident, the amended complaint alleges, and the General Counsel asserts, that Jackson unlawfully at- tempted to cause the layoff of Sims. In support of its asser- tion that Jackson was discriminatorily motivated in this attempt, the General Counsel elicited testimony from Sims indicating a run-in with Business Agent Hughes in late June of 1972. On that occasion, Sims called Hughes, complaining about getting only a 1-day job, and asking why it was that other men were getting laid off jobs and being referred out the next day. Hughes replied that if he did not keep his mouth shut he would be sitting on his ass at home. Sims further testified that after June, he called the Local 83 office once a week asking to speak with Hughes or Jackson, each time being told by the secretary that they did not have any work for him. Without regard to what prompted Jackson to make the simple inquiry of Carnes as to whether he knew that he had hired a man who did not have a union book and had not been sent out by the Union, I am unable to construe this, by itself, as a demand or even a request, that Carnes lay off Sims.7 Carnes, himself, testified that he did not so construe it. Accordingly, I find that the General Counsel has failed to meet his burden of proving by a preponderance of the credible evidence the complaint allegation that the Respon- dent attempted to cause Custodis Construction Company to layoff Vernon Sims in violation of Section 8(b)(1)(A) and (2) of the Act. 2. The Fry, Inc., allegation On August 16, 1972, James Hazelrigg, construction super- intendent for Fry, Inc., for the Robbins and Myers project in Gallipolis, Ohio, signed a "pre job conference" agree- ment with Local 83. It is readily apparent from the record that the events that followed in September concerning the three laborers here involved, Vernon Sims, Clyde Hatfield and Joe Hanna, and gave rise to the complaint allegation in this regard, stem from a difference of opinion between Ha- zelrigg and Jackson as to the intent, as well as substance, of this agreement. Throughout this period, in one conversation or another, it appears that from the beginning Jackson con- tended that the prejob conference agreement constituted a hiring hall agreement by which Hazelrigg agreed to hire personnel only by calling the Union, whereas Hazelrigg held to the position that the agreement was not a hiring hall agreement but that it permitted the Company to hire with the requirement that it then notify the Union. This bone of contention at no time was resolved, not even, apparently, at the time of the instant hearing.8 6 1 do not credit Jackson's denial that he had this subsequent conversation with Carnes concerning Sims 7 While perhaps unimportant to the issue, and recognizing that Carnes often requested laborers from the Union, the record does not reveal, one way or the other, whether any referral agreement existed between Custodis and Local 83 8 The preconference agreement itself was not offered in evidence, and LABORERS LOCAL 83 In any event, on September 5, Sims, Hanna, and Hatfield presented themselves at the Fry jobsite and asked Hazelrigg if he were hiring laborers. Hazelrigg then told them that he had no need for any at that moment, and asked them if they belonged to the Local Union, advising that the Company was a union contractor. Upon learning that all of them were members of Local 83, Hazelrigg told them to check back, that he eventually would be needing some men. The following day, September 6, Hazelrigg called Jack- son, saying that he was going to need more men. Shortly Jackson went out to the jobsite, and Hazelrigg mentioned to Jackson that Sims, Hanna, and Hatfield had been out looking for work. Hazelrigg told Jackson that they were Local 83 men, that he needed a man, and "asked him how about these three men." Jackson replied that they were working on the third shift at the Gavin plant job. Hazelrigg asked Jackson why they were applying for work on his project if they were already working, to which Jackson an- swered that he did not know. Jackson then sent out another man from the union Hall. The following morning, September 7, Sims, Hanna, and Hatfield showed up at the jobsite, and Hazelrigg told them what Jackson had said. The three of them indicated that they had quit the Gavin job 2 weeks earlier, Hatfield be- cause he had been ill, and Hanna because his mother wor- ried about his working on high towers and he was losing sleep over it.9 At some point, one of the three told Hazelrigg that the reason they were coming out to hisjob was because Jackson was discriminating against them. Starting with this conversation with the three men, and following this several times during the next week, up until September 16, Hazel- ngg indicated to the men that he had signed a preconference agreement with the Union and there existed a question as to whether this constituted a hiring hall agreement, that Jackson had said that it was. Hazelrigg told the men that he was going to have to check with his office in Springfield On Monday, September 11, in need of some men, Hazel- rigg talked with Jackson. Indicating that he would like to have local area men, and aware that Sims, Hanna, and Hatfield were from the Gallipolis area, Hazelrigg again asked Jackson about these three men. Jackson replied, say- ing "that I had agreed by this pre fob conference to call the hall when I wanted a man, not to hire a man that was coming in looking for work." A discussion followed con- cerning the prejob conference, with Hazelrigg stating that he did not recall that the prejob conference had constituted a hiring hall agreement, but that he was not sure.10 therefore, just what it did provide is not known , nor actually made an issue herein Hazelrigg, in a very limited testimony on the agreement, testified that "the agreement is made between the Union and the local contractors And there is a statement in there which I presume refers specifically to some clause in the Taft-Hartley Act that says that after a man is employed the Union must be notified And the man with some exceptions must join the Union And that's the way I've always operated before Sometimes I got men from the Hall and sometimes I got a man off the street-or `off the bank."' 9 The record reflects that, in fact, whereas all three commenced working for Custodis on the Gavin Power Plant project on August 1, Hanna quit his job there on August 24, Hatfield and Sims quit on August 25 and 30, re- spectively, because they were ill, and never returned to their jobs They were carried on the Custodis roll as employees, however, until replaced on Septem- ber 7 and 8, respectively ii) Strangely enough, at no time during these various conversations between 401 Hazelrigg later called his Springfield office and had the payroll clerk locate a copy of the prejob conference agree- ment and read it to him. Apparently even this did not an- swer Hazelrigg's dilemma as to his obligations under the agreement, for, on several occasions that week when one or more of the three men showed up at the jobsite, Hazelrigg told them that he did not know whether he had made a hiring hall agreement, that he was checking it out with his office. On one such occasion, according to Sims, when Sims showed up alone and asked Hazelrigg if he were going to put him to work, Hazelrigg replied that he did not know, that Jackson had said that "we would cause problems on the job," and that "one of the employees was a steward and had been on strike for a week." On September 14, Hazelngg called the union hall for three more men, and talked with Hughes. He told Hughes that he would like to have local area men, and asked him again about these three men. Hughes replied that there had been some problems, stating that he wanted to furnish men who were satisfactory. Hazelrigg said that there had been one young impressive Viet Nam veteran who had applied for work and that he had sent him to the union hall to register. Hazelrigg asked Hughes about him. Hughes told Hazelngg to go ahead and call him if he wanted to, which Hazelrigg did. As Hazelngg needed three men, Hughes then sent out two other men of his choice. None of the three here involved, Sims, Hanna, or Hatfield, was referred." Several months later, on December 7, Hazelrigg called the hall for men, and Sims and Hatfield were referred out. They worked at Fry, Inc., for 10 days, at which point they were laid off. Analysis and Conclusions The General Counsel contends that the Respondent caused and attempted to cause Fry, Inc., to refuse to hire Vernon Sims, Clyde Hatfield, and Joe Hanna for reasons other than the failure to tender dues and initiation fees in violation of Section 8(b)(1)(A) and (2) of the Act. The Re- spondent, generally, denies the charge, taking the position that both before, and since, the Union has referred these men to a number of jobs. Before treating the precise issue here, the record does in fact reveal, without regard to the duration of the jobs or other details, that Hanna and Hatfield were referred to a number of construction jobs as early as May and again in the fall of 1972. Thus, Hanna was referred on June 5 to Locks Construction, on August 1 to Custodis, on December 13 to Greenley's. Hatfield was referred on May 2 to Ben Cookson, August 1 to Custodis, October 10 to Bleyley, Oc- tober 17 to Locks Construction, December 7 to Fry, Inc., and, after a layoff, to Greenley's. Sims was also referred to Fry, Inc., on December 7. Notwithstanding the fact that these referrals, or attempts at referrals, support the Hazelrigg and Jackson, or at any other time for that matter, does it appear that either had a copy of the prejob conference agreement in dispute Hazel- rigg had sent his copy to the company office in Springfield. There is no ex?lanation advanced for Jackson's not having a copy i The Viet Nam veteran had not been a Local 83 member, but, upon being informed by Hazelrigg that it was a union job, he went down to the union hall and registered 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's assertion in this regard, I find that such is not relevant to the issue raised, specifically, whether the Re- spondent caused or attempted to cause Fry, Inc., to refuse to hire Sims, Hatfield, or Hanna between September 6 and 16.12 The General Counsel points to background evidence of alleged hostility on the part of Hughes towards Hatfield, and in turn, his buddies by association, to provide the discri- minatory motivation on the part of Local 83's Hughes and Jackson. Acknowledging the existence of a couple of inci- dents in 1971 and as late as March 1972, reflecting a degree of animosity between Hughes and Hatfield, a former union steward under Hughes, whether or not this played a part in the conduct of Hughes and Jackson concerning the Fry matter, I find is not necessary to determine. The sole and precise issue presented by the pleadings is whether Local 83 caused Hazelrigg to not hire these three members in good standing of the Union. I find that it did. It is undisputed that Sims, Hanna, and Hatfield, on a number of occasions between September 6 and 16, present- ed themselves at the Fry jobsite, that they asked to be put to work, that Hazelrigg had openings and was ready to put them to work and wanted to put them to work, and that the only reason he did not was solely because Jackson and Hughes insisted that under the prejob conference agreement he had agreed to hire only through the union hall. Both Jackson and Hughes were well aware that these men wanted to work, that at least after September 8, were no longer employed elsewhere, and that Hazelrigg wanted to give them jobs. While both Hughes and Jackson, at no point, told Hazelngg in so many words that he could not hire these men, each time when Hazelngg asked whether he could put these men to work Jackson told Hazelrigg that, by signing the agreement, he did not have the right to hire men at the jobsite as he had obligated himself to call the Union for laborers. Thus, but for the fact that the union officials insist- ed on this position throughout the discussions with Hazel- rigg, the latter would have hired all three. In view of the above, it follows that during this period the Union, through its officials Hughes and Jackson, did in fact cause Fry, Inc., to not hire Vernon Sims, Clyde Hatfield, and Joe Hanna. The question then arises as to whether the Respondent, in causing Fry, Inc., to not hire the men, may rely upon its assertion that the Company had executed a prejob confer- ence agreement containing an alleged hiring hall provision obligating it to call the Union for men. Without attempting to decide the legal import of such an agreement, I find that, the General Counsel, having proved the "cause and attempt to cause," it was incumbent upon the Respondent to come forward with affirmative evidence to justify its conduct, specifically, it had the burden of putting into evidence the preconference agreement. This it did not do. Accordingly, under these circumstances, I find that the Respondent, Local 83, between September 6 and 16, 1972, caused and attempted to cause Fry, Inc., to refuse to hire Vernon Sims, Clyde Hatfield, and Joe Hanna, in violation of Section 8(b)(1)(A) and (2) of the Act. 12 As asserted by the General Counsel, referrals after the filing of the unfair labor practice charge herein should not exonerate the Union for any unlawful conduct that might have occurred poor thereto. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operation of Custo- dis Construction Company and Fry, Inc., as set forth in section I, above, have a close, intimate and substantial rela- tion to trade, traffic and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. The Respondent, Laborers' International Union of North America, AFL-CIO, Local No. 83, is a labor organi- zation within the meaning of Section 2(5) of the Act. 2. Custodis Construction Company and Fry, Inc., are employers within the meaning of Section 2(2) of the Act, and are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By causing, and attempting to cause, Fry, Inc., to un- lawfully refuse to hire Vernon Sims, Clyde Hatfield, and Joe Hanna between September 6 and 16, 1972, the Respondent engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY It having been found that the Respondent has engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom and that it take certain affirma- tive action which is necessary to effectuate the policies of the Act. It having been found that the Respondent unlawfully caused Fry, Inc., to refuse to hire Vernon Sims, Clyde Hat- field, and Joe Hanna, between September 6 and 16, 1972, it is recommended that Respondent make these three indi- viduals whole for any loss of pay they may have suffered as a result of its discrimination against them by making pay- ment to them of a sum of money plus interest, equal to that which they would have earned but for the Respondent's discrimination against them, in accordance with the princi- ples enunciated by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Upon the foregoing facts, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 13 The Respondent, Laborers' International Union of North 13 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, and recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes LABORERS LOCAL 83 America, AFL-CIO, Local No. 83, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Restraining or coercing employees of Fry, Inc., or any other employer, in violation of Section 8(b)(1)(A) of the Act. (b) u nlawtuliy causing and attempting to cause Fry, Inc., to refuse to hire Vernon Sims, Clyde Hatfield, and Joe Hanna, or any other employee, in violation of Section 8(b)(2) of the Act. (c) In any like or related manner restraining or coercing employees in the exercise of any right guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Make whole Vernon Sims, Clyde Hatfield, and Joe Hanna for any losses in pay they may have sustained as a result of the Respondent's discrimination against them, computing the amount due in the manner set forth in the section of this Decision entitled "The Remedy."' (b) Notify immediately Fry, Inc., and Vernon Sims, Clyde Hatfield, and Joe Hanna that it has no objection to the Company employing these individuals. (c) Post at its business offices in Portsmouth, Ohio, its meeting hall, and all other places where notices to members are customarily posted, a copy of the notice attached hereto marked "Appendix." 14 Copies of the notice on forms pro- vided by the Regional Director for Region 9, shall, after being duly signed by an authorized representative of the Respondent, be posted by it, as aforesaid, immediately upon receipt thereof and maintained for at least 60 consecu- tive days thereafter. Reasonable steps shall be taken by the Respondent to ensure that said notices are not altered, de- faced, or covered by any other material. (d) Promptly, upon receipt of copies of said notice from the Regional Director, return to him signed copies for post- ing by Fry, Inc., it being willing, at the Company's Spring- field, Ohio office, and any other jobsite located in the Gallipolis, Ohio, area. (e) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 14 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 403 IT IS FURTHER RECOMMENDED that the complaint herein be dismissed insofar as it alleges any violation of the Act not specifically found. 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 Fry, Inc., to refuse to hire Vernon Sims, Clyde Hatfield, and Joe Hanna, or any other employee, in violation of Section 8(b)(2) of the Act. WE WILL NOT restrain or coerce the employees of Fry, Inc., or of any other employer, in violation of Section 8(b)(l)(A) of the Act. WE WILL pay Vernon Sims, Clyde Hatfield, and Joe Hanna any monies they may have lost as a result of their not having been hired by Fry, Inc., between Sep- tember 6 and 16, 1972. WE WILL notify, in writing, Fry, Inc., and Vernon Sims, Clyde Hatfield and Joe Hanna that we have no objection to the employment by Fry, Inc., of these three individuals. LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, AFL-CIO, LOCAL No 83 (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 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be direct- ed to the Board's Office, Federal Office Building, Room 2407, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513-684-3686.