Local 819, Operating Engineers

176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 819, International Union of Operating Engi- neers, AFL-CIO (Brodie Construction Company) and William Scott Cole Laborers International Union of North America, AFL-CIO, Pipeline Local 38 (Brodie Construction Company) and William Scott Cole Local 819, International Union of Operating Engi- neers, AFL-CIO (Booth Services, Inc.) and J. W. Brown Local 819, International Union of Operating Engi- neers, AFL-CIO and Booth Services, Inc. Cases 16-CB-746, 16-CB-775, 16-CB-762, and 16-CB-774 February 21, 1974 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AN D PENELLO On September 28, 1973, Administrative Law Judge Melvin J. Welles issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions 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 authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, for the reasons set forth below: The Administrative Law Judge found, inter alia,l that the Respondent Unions did not violate Section 8(b)(1)(A) and (B) and 8(b)(2) of the Act by blacklisting persons that worked behind a picket line said Unions had established at Booth Services nor by causing Brodie Construction Company to discharge one of its supervisors because he had worked nehind that picket line. The General Counsel excepts to the Aainittistrative Law Judge's failure to find these alleged violations. The situation, as developed by the credited testimony.2 is a relatively simple one. The Respon- dent Unions compiled a written list of all persons- -employees and supervisors-who - crossed their picket line at Booth Services. On November 15, 1972, they had a prejob conference with Brodie Construc- tion Company with respect to a job involving work similar to that done by Booth Services, whose particular job was then nearing completion. At the conference the representative of Respondent Operat- ing Engineers, English, merely mentioned that the list had been compiled. A company representative then requested a copy, and English, finding one among his papers, gave it to him. There is no credited testimony that the Respondent Unions made any demand or request that Brodie not hire persons on the list.3 On or about January 17, 1973, a day or so after Brodie started its job, its employees represented by the Respondent Unions refused to work because, as seems agreed, William Cole, who had worked behind the Booth Services picket line, had been employed by Brodie as a supervisor. Cole, on learning what was taking place, asked Anderson, Brodie's field superin- tendent, to terminate him. Cole was paid off and the employees went to work. There is no credited testimony that the Respondent Unions ever demand- ed or requested that Cole not be hired or that he be discharged once hired. Rather, the credited evidence shows that on the morning of the strike, Moore, Respondent Operating Engineers representative on the job, in reply to a question from Cole, stated that he, Cole, was not blacklisted. And -these words find substance in Moore's credited, corroborated testimo- ny that he not only had not caused or supported the strike, but had on the contrary directed his efforts to getting the men to go to work, telling them Cole's presence did not justify a strike. This recapitulation of the essential facts shows that the credited evidence fails to establish, as claimed by the General Counsel, that the Respondent Unions, in I The Administrative Law Judge also found that the Respondent Operating Engineers violated Sec 8(bl(I)(B) of the Act by fining certain supervisors for working behind one of its picket lines and that Respondent Laborers violated Sec 8(b)(1)(A) by threatening discrimination in job referrals if employees did not assist in picket line activities He also found that Respondent Unions did not violate Sec. 8(b)(2) by causing Brodie Construction Company not to hire Clifford Dickerson In the absence of exceptions, we adopt, pro forum, the foregoing findings 2 The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry, Wall Products, The, 91 NLRB 544, enfd 188 F.2d 362 (C.A. 3, 1951 ) We have carefully examined the record and find no basis for reversing his findings a English's only explanation of why he had the list with him at the preJob conference was to the effect that it just happened to be among his papers. The General Counsel contends that this absence of an affirmative legitimate reason provides evidence of an unlawful motivation . Even assuming the relevance of the point being made by the General Counsel, in the circumstances here, the facts do not support the conclusion he would have us reach However, in reaching our result herein , we expressly do not adopt the Administrative Law Judge's rather speculative discussion to the effect that the Respondent Unions were in a lawful manner doing Brodie a favor by presenting it with a list of persons whose hire might later cause trouble on the Job. 209 NLRB No. 39 LOCAL 819, OPERATING ENGINEERS presenting the list to Brodie, intended it to he used as a blacklist,4 that anyone was denied employment or discharged because his name appeared on that list, or that the Respondent Unions caused or abetted the walkout that resulted in Cole's terminating his employment. Thus, we agree with the Administrative Law Judge that the Respondent Unions did not violate Section 8(b)(1)(A), (B), and (2) with respect to these matters as alleged by the General Counsel. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondents , Local 819, International Union of Operating Engineers, AFL-CIO. and Laborers International Union of North America, AFL-CIO, Pipeline Local 38, Chicago, Illinois, their officers, agents, and represent- atives, shall take the action set forth in the said recommended Order, except that the attached notice marked "Appendix B" s is substituted for that of the Administrative Law Judge. 4 In view of our conclusion here, we find it unnecessary to consider and so do not adopt the Administrative Law Judge's discussion and conclusion in fn I of his Decision concerning the effect of the presentation of the list to Brodie were such presentation deemed to he a "hare" request that Brodie not hire persons on the list s We have substituted the attached notice for the Administrative law Judge's Appendix B in which he inadvertently left out the words "threaten to" before the word "discrinunate" in the paragraph thereof beginning with "WE WILL NO F." APPENDIX B NOTICE To MEMBERS POS'1 ED BY ORDER OF THE NATIONAL. LABOR RLLAIIONS BOARD An Agency of the United States Government After a hearing in which both sides had the opportunity to present their evidence, the National Labor Relations Board has found that we violated the law and has ordered us to post this notice and abide by its terms. WE WILL NOT threaten to discriminate in job referrals against any member for refusing to walk picket lines or otherwise assist the Union in connection with a strike or picketing. LABORERS IN] FRNATIONAL UNION o NORTH AMERICA, AFL-CIO, PIPELINE LOCAL 38 (Labor Organization) 177 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 he altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Federal Office Building, Room 8-A--24, 819 Taylor Street, Fort Worth. Texas 76102, Telephone 817-334-2921. DECISION STAIEMENr OF IHE CASE MELVIN J. WELLES, Administrative Law Judge: This case was heard at Fort Worth, Texas, on May 15, 1973, based on charges and amended charges filed on various dates between January 22, 1973, and April 15, 1973. and a consolidated complaint issued April 20, 1973 , alleging various violations of Section 8(b)(1)(A) and (B), and Section 8(b)(2), by Respondents Laborers and Engineers. Upon the entire record, including my observation of the witnesses, and after due consideration of the briefs filed by Respondents and by the General Counsel, I make the following: FINDINGS OF FAC-1 I. ]HE BUSINESS Ol THE EMPLOYERS AND THE LABOR ORGANiLATIONS INVOLVED J. T. Brodie, an individual proprietor doing business as Brodie Construction Company, is engaged in pipeline and utilities construction , with its office and place of business in Amarillo, Texas. During the year preceding the hearing, it purchased goods and materials valued in excess of $50,000 from points outside the State of Texas. Booth Services, Inc., a Texas corporation, with its principal office at Houston , Texas, is also engaged in the pipeline construction business. During the past year. it sold or performed services directly to customers outside the State of Texas valued in excess of $50,000, and received supplies and materials valued in excess of $50,000 from outside the State of Texas. I find, as Respondents admit in their amended answer, that Brodie and Booth are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondents, both the Engineers and the Laborers, are labor organizations within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. Background-The Issues The actions of Respondent Unions complained of in this case are the aftermath of a dispute between the Laborers and Booth that occurred in October 1972 and concerns employees and supervisors who had worked behind the 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Laborers picket line at Booth. The Operating Engineers and the Laborers are charged with violating Section 8(b)(1)(A) and 8(b)(2) by blacklisting these employees; with violating Section 8(b)(l)(B) by fining certain supervi- sors for working behind the picket line at Booth; with violating Section 8(b)(2) by attempting to cause Brodie not to hire former Booth employees who crossed the picket line there; with violating Section 8(b)(2) by causing discnmina- tion against a former Booth employee; and with violating Section 8(b)(l)(B) by attempting to cause Brodie to discharge one of its supervisors who had worked behind the Brodie picket line; and that Respondent Laborers violated Section 8(b)(1)(A) by threatening to deny referrals to employees who refused to perform picketing duty during the strike at Booth. B. Factual Resolutions-Discussion The facts are relatively uncomplicated, and not in great dispute, although some of the conflicts are significant. As noted above, there was a picket line at Booth between October 21 and November 7, 1972, with Bud English, an Engineers business representative, and T. P. Whitehead. business manager of the Laborers, directing the picketing. Respondent Engineers at that time maintained a list of employees and supervisors who worked behind the picket line. On December 15, 1972, a prejob conference was held between Brodie and Respondents, with J R. Brodie, Frank King, and Garth Anderson there for the Company. and Whitehead, English, and Billy Moore, an Engineers steward, there for the Unions. Just prior to the conference itself, Anderson had a discussion, over coffee, with Whitehead and English. According to Anderson, they asked him not to hire Scott Cole as a supervisor because he had worked behind the picket line. English and Whitehead categorically denied making any such request. King testified that either Whitehead or English told him, at the conference, that they had "a few hands we wish you wouldn't employ," and that one of the two gave him the list that had been kept of persons crossing the picket line at Booth. English and Whitehead both denied having told King that they "wished" he would not employ certain employees, and also testified that King asked them for the list. Anderson testified that on January 17 there was a work stoppage on the job, directed by Respondents' stewards, Moore and Alvin Stewart, because Scott Moore was on the payroll, and that Cole requested Anderson to terminate him so the job could continue, and only then did Moore call off the strike. Cole testified, in connection with the same incident, that Moore told him he had been black- balled. Carol Moore, Billy Moore's brother, and Frank Allums, both employees of Brodie, and Alvin Stewart, all corroborated Billy Moore's version of the events of that day, to the effect that Moore was attempting to get the employees to work despite Cole's presence on the job. and that Cole asked Moore whether he was blackballed, with Moore saying no, that he had no authority to blackball anyone. King was quite vague, throughout his testimony, as to precisely what was said, how the list happened to be seen or mentioned at all, and how he got the copy of the list. King's own testimony makes abundantly clear that there was no threat or coercion , or language suggesting a demand or an instruction, from Respondents' agents with respect to Brodie not hiring anyone who had crossed the Booth picket line. And King's own testimony shows his uncertainty as to what was said-King stated, "I really don't know how exactly the conversation went," with reference to the critical portions thereof. The General Counsel argues that Respondents had no legitimate reason for having the list at the prejob conference, let alone mentioning it while there. The General Counsel's brief contends that "It is inconceivable that they had any purpose other than the obvious: they wished Brodie to do the only thing it could to in regard to these employees-refuse to hire them if they applied." I do not wholly agree. As the January 17 incident in this very case demonstrates, there is a real potential for "trouble" among the employees when assigned to the same crew are employees who honored a picket line, and performed picket duty, and those who did not. A union at a prejob conference such as occurred here could well be doing the employer and the employees a service, and helping to forestall such trouble, by indicating which employees were in the latter category. This is not to say that a union might not also welcome the employer's not hiring those who crossed the picket line. There is a vast difference, however, between possibly welcoming such employer action and being guilty of causing or attempting to cause it . All I am saying, of course, is that it does not automatically follow from the presence of the list at the prejob conference that Respondents' motive was evil, and that I should therefore credit King and Anderson over English, Whitehead, and Moore. I was particularly impressed by Moore, and the other witnesses who corroborated his version of the January 17 incident, and have no hesitancy whatsoever in crediting him over Anderson in that respect. I also find, based on the witnesses' demeanor, and the full panoply of events, that English and Whitehead did not request Brodie not to hire the people on the list, and that the list was requested by King. Finally, I credit English and Whitehead that they did not ask Garth Anderson, when having coffee with him just prior to the regular prejob conference , not to hire Scott Cole. The above credibility resolutions, and their resultant findings of fact, require dismissal of certain allegations of the complaint. My finding that Respondents' agents did not request Brodie not to hire former employees of Booth who crossed the picket line there, that King requested the list of employees and supervisors who had crossed that line, that English and Whitehead did not request Anderson not to hire Scott Cole, and that Respondents agents were not responsible for any threatened strike or actual strike to LOCAL 819, OPERATING ENGINEERS cause Brodie to discharge Cole dispose of those allegations relating to the incidents mentioned.' In my view, these facts also require dismissal of the complaint with respect to the 8(b)(2) allegation relating to Clifford Dickerson. Dickerson testified that about January 3, 1973. he called Brodie and talked to Garth Anderson about working for Brodie, that Anderson said, "Well, we might be able to use you," but that when Dickerson told Anderson he had worked for Booth, Anderson said, "Well, you're probably on this list," paused a few moments, said, "Yes, he's on that list." and then added, "Well, I can't use you because you're on the list." Anderson had testified earlier, but had not been asked by the General Counsel about this incident. When counsel for Respondents objected to Dickerson's testimony, the General Counsel stated that Anderson, when questioned prior to the hearing, said he had no recollection of such a phone call. In the light of this lack of any corroboration, and the fact that Respondents would have no way of refuting Dicker- son's testimony. and particularly because the " list" in question was given Brodie at King's request, I cannot conclude that Respondents caused Brodie not to hire Dickerson. There remain for consideration the complaint' s allega- tions with respect to finding the alleged supervisors, Bill Simpson and J. W. Brown, in violation of Section 8(b)(1)(B). and to publishing in the Laborers official publication a notice allegedly threatening employees who did not walk picket lines with going to the bottom of the Union's job referral list. Brown and Simpson were both charged by Respondent Engineers with working behind the picket line at Booth, found guilty, and fired. Respondent Engineers defends on the ground that "the record is not complete as to their supervisory status or that the charges were preferred against them solely on this basis." Neither contention has meet. As to the charges, each specifies that the named employee "did work behind a picket line placed on this job; thereby, breaking down working conditions of this Local Union." As to their supervisory status, the uncon- tradicted testimony shows that Simpson , an assistant superintendent, and Brown, a master mechanic, each had authority to hire employees and had done so. Simpson directed 15 foremen, who reported to him or to the superintendent, and had hired 3 of the foremen personally. Brown hired three of the employees who worked under him. I am satisfied, on these facts, that the record establishes the supervisory status at Booth of both Brown and Simpson. It follows, accordingly, that Respondent Engineers violated Section 8(b)(1)(B) by charging and fining them for crossing the picket line. Toledo Blade, Inc., 175 NLRB 1072, enfd. 437 F.2d 55 (C.A. 6, 1971). The December 1972 issue of "The Pipeline," the official newsletter of Respondent Laborers, contained the follow- ing: I A. bare "request." unaccompanied by any threat, coercion, and which does not "contain directions or instructions ." would not in any event wnstitute an "attempt to cause " See, c g . Denver Building and Construction Trades Council (Henr• Shore), 90 NLRB 1768, and compare American Bakery and Confenionere Workers International Union, AFL C/O (Conti- nental Baking Company), 128 NLRB 937, 938-939. ATTENTION ALL 38 MEMBERS 179 Those members who assist the Business Manager in defending the Union, by walking picketlines and whatever other assistance the Business Manager re- quires will go to the top of the out of work list. You will be the first sent out on jobs. The General Counsel contends that this notice constitut- ed a threat to employees who exercised their protected right not to walk picket lines, and therefore was in violation of Section 8(b)(I)(A). The Board has found that a union violates that section by refusing to refer a member to a job, even when there is no exclusive hiring arrangement (and none is shown in this case), for engaging or refusing to engage in a protected activity. Hoisting and Portable Engineers, Local No. 4, International Union of Operating Engineers (The Carlson Corporation), 189 NLRB 366. A threat to employee-members who engage in a protected activity, and the promise to refer those who do walk picket lines is of course a threat to those who do not, is by the same token also violative of Section 8(b)(1)(A), and I so find. CONCLUSIONS OF LAW 1. By charging and fining Booth Supervisor J. W. Brown, and by charging and summoning Booth Supervisor Bill Simpson for working behind its picket line, Respon- dent Engineers engaged in an unfair labor practice affecting commerce within the meaning of Sections 8(b)(l)(B) and 2(6) and (7) of the Act. 2. By threatening discrimination in job referrals to employees who did not assist it by walking picket lines, Respondent Laborers engaged in an unfair labor practice affecting commerce within the meaning of Section 8(b)(I)(A) and 2(6) and (7) of the Act. 3. Respondents Engineers and Laborers have not otherwise violated the Act. THE REMEDY Having found that Respondents have engaged in unfair labor practices, I shall recommend that they cease and desist therefrom and take certain affirmative action which will effectuate the policies of the Act. Upon the foregoing findings and conclusions, and upon the entire record in the case, I recommend , pursuant to Section 10(c) of the Act, issuance of the following recommended: ORDER2 A. Respondent Local 819, International Union of Operating Engineers, AFL-CIO, its officers, agents, successors, and assigns, shall: I Cease and desist from: 2 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings. conclusions, and Recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall he deemed waived for all purposes. 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Preferring charges against, summoning, fining, or otherwise disciplining J. W. Brown, Bill Simpson, or any other supervisory employees of Booth Services . Inc., for having crossed or worked behind the Union 's picket line. (b) In any like or related manner restraining or coercing Booth or any other employer in the selection of its representatives for the purposes of collective bargaining or adjusting grievances. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Rescind and expunge all records of the charges, summonses, or fines levied against, with respect to J. W. Brown and Bill Simpson for crossing or working behind the Union's picket line. (b) Repay the fine levied against Supervisor J. W. Brown with interest at 6 percent per annum. (c) Post in conspicuous places at offices and meeting halls, and other places where notices to members are customarily posted, copies of the attached notice marked "Appendix A."3 Copies of said notices on forms provided by the Regional Director for Region 16, after being duly signed by an authorized representative of the Respondent, shall be posted immediately upon receipt thereof, and he maintained for a period of 60 consecutive days thereafter. Reasonable steps shall be taken by the Respondent to ensure that said notices are not altered, defaced, or covered by any other material. B. Respondent Laborers International Union of North America, AFL-CiO, Pipeline Local 38, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with discrimination in job referrals for not assisting it in walking picket lines or otherwise engaging in, or refraining from engaging in, any activity protected by Section 7 of the Act. (b) In any like or related manner restraining or coercing employees in the exercise of rights protected by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Publish in the next issue of its official newsletter. "The Pipeliner," a retraction of the notice published in the December 1972 issue thereof which threatened discrimina- tion in job referrals to members who did not walk the picket lines. (c) Post in conspicuous places at offices and meeting halls, and other places where notices to members are customarily posted. copies of the attached notice marked "Appendix B."4 Copies of said notices on forms provided by the Regional Director for Region 16, after being duly signed by an authorized representative of the Respondent. shall be posted immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter. Reasonable steps shall he taken by the Respon- dent to ensure that said notices are not altered, defaced, or covered by any other material. I r IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges that Respondents Engineers and Laborers violated the Act otherwise than as found herein. 4 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Fnforcing an Order of the National Labor Relations Board i See in 3, supra APPENDIX A NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which both sides had the opportunity to present their evidence, the National Labor Relations Board has found that we violated the law and has ordered us to post this notice and abide by its terms. WE WILL NOT restrain or coerce Booth Services, Inc., in its selection of representatives for the purpose of collective bargaining or the adjustment of grievances. WE WILE Not charge, fine, or otherwise discipline J. W. Brown, Bill Simpson, or any other supervisor of Booth Services, Inc., who is a member of this labor organization because they worked behind our picket line. WE WILL rescind and repay the fine levied against J. W. Brown with interest, and excise all records from our files of the charges, fine, or summonses against J. W. Brown and Bill Simpson. LOCAL 19, INTERNATIONAL UNION OF OPERATING ENGiNEFRS, AFL-CIO (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 directed to the Board's Office, Federal Office Building, Room 8-A-24, 819 Taylor Street, Fort Worth. Texas 76102. Telephone 817-334-2921.