Intl. Assn. of Bridge, Etc., Loc. 118, AFL-CIO

INTL. ASSN. OF BRIDGE, ETC., LOC. 118, AFL-CIO 467 International Association of Bridge, Structural and Ornamental Iron Workers, Local 118, AFL-CIO (Bostrom-Bergen) and Ted W. Krolikowski. Case 20-CB-3187 July 24, 1975 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On December 4, 1974, Administrative Law Judge Herman Corenman issued the attached Decision in this proceeding. Thereafter, counsel for 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 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 brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. 1974, against International Association of Bridge, Structu- ral and Ornamental Iron Workers, Local 118, AFL-CIO, herein called Respondent, a complaint was issued on Au- gust 14, 1974, alleging that the Respondent violated Sec- tion 8(b)(1)(A) and (2) of the Act by failing and refusing on May 3, 1974, to dispatch Krolikowski to the Bostrom-Ber- gen jobsite at Roseville, California, for reasons which are irrelevant, invidious, and unfair and/or because of his hav- ing engaged in intraunion activities. The Respondent's an- swer denied having engaged in unfair labor practices and further averred that the Board defer to the internal proce- dures which provide a remedy for Krolikowski' s grievances concerning the operation of the Respondent's job referral practices. Pursuant to due notice a hearing was held before me at Sacramento, California, on October 2, 1974. All parties ap- peared and were afforded full opportunity to be heard, to present oral and written evidence, and to examine and cross-examine witnesses. Briefs submitted by the General Counsel and by the Respondent have been carefully con- sidered. Upon the entire record including my observation of the witnesses and their demeanor, as well as the submitted posthearing briefs, I make the following: FINDINGS OF FACT ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dis- missed in its entirety. MEMBER JENKINS, Concurring: I concur in the result for the reasons expressed by both Members Fanning and Kennedy. 1 For purposes of clarification of the Administrative Law Judge's Deci- sion we hereby note that the agreement between the multiemployer group and the District Council of Iron Workers calls for the Appellate Tribunal in the hiring hall grievance procedure to be made up of a representative select- ed by the employers, a representative selected by the Union , and an impar- tial third member selected jointly by the employers and the Union. The employees themselves do not sit as a representative on this Tribunal. See section entitled "The Collyer Question" in the Administrative Law Judge's Decision. In agreement with the Administrative Law Judge , Member Fanning would not defer the issue herein to the grievance procedure of the contract. However, Member Fanning would do so for the reasons set forth in his dissent in Collyer Insulated Wire, A Gulf and Western Systems Co., 192 NLRB 837 (1971). DECISION STATEMENT OF THE CASE HERMAN CORENMAN , Administrative Law Judge: Pur- suant to a charge filed by Ted W. Krolikowski on May 10, 1. THE BUSINESS OF THE EMPLOYER AND COMMERCE JURISDICTION The Employer, Bostrom-Bergen, among other things is engaged in the erection of steel structures. During 1973, Bostrom-Bergen purchased and received goods and materi- als valued in excess of $50,000 at its Oakland, California, facility. Such goods were shipped from plants of the Unit- ed States Steel Corporation in Pennsylvania, Illinois, and Utah. I find that at all times material herein, Bostrom- Bergen was an employer engaged in commerce and in op- erations affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED International Association of Bridge, Structural and Or- namental Iron Workers, Local 118, AFL-CIO, the Re- spondent herein, is a labor organization within the mean- ing of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Preliminary Statement Bostrom-Bergen and the Respondent at all times materi- al hereto were bound by a collective-bargaining agreement between a multiemployer group and the District Council of Iron Workers of the State of California and a portion of Nevada, of which the Respondent is a constituent member, along with a number of other Iron Workers local unions. The collective-bargaining agreement at section 5 con- tained hiring and job referral procedures to govern the par- ties, granting different priority in job referrals to various classes of ironworkers. The highest priority was granted to 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Group A to which Krolikowski belonged. In order to quali- fy for referral to jobs, workers were required to register for work at the union hall, and among other things indicate his classification or classifications, specialty or specialties of the type of work desired, and the date of registration. To be available for employment, individual workmen are re- quired to be present at the union hall during dispatching hours daily between 8 a.m. and 10:30 a.m. Upon being referred, each individual shall receive a referral slip to be transmitted to the employer representative at the jobsite, indicating his name, address, social security account num- ber, type of job, date of proposed employment, date of referral, and rate of pay. Individuals are required to re- register weekly, otherwise their name will be removed from the registration list. Individuals are referred in order of registration on the out-of-work list, with the earliest registration at the top of the board and the latest registration at the bottom of the board, so that the order of registration can be openly ob- served by everyone. The order of referral need not be followed in cases where individual employers require and call for applicants pos- sessing special skills and abilities in which case the Union shall refer the first applicants possessing such special skills and abilities in the order they appear on the registration. The referral procedures do not apply to the hiring of ap- prentices which are governed by Nevada and California law. The individual employer has the right to employ directly a minimum number of key employees who may include a general foreman and foreman. B. The Failure To Refer Ted Krolikowski to Bostrom-Bergen on May 6, 1974 The Union maintains a hiring hall at Sacramento, Cali- fornia. Ted Krolikowski, the Charging Party, had been a member of the Union about 18 years. He is a journeyman ironworker. He served as president of the Union in 1970 and 1971 pursuant to appointment by the International Union. He had on occasion before 1970 served as a fore- man. At times Krolikowski has criticized the operation of the union hiring hall by its former business manager, Charles Weaver, who conducted the hiring hall until his defeat for reelection as business manager in July 1974. In a union meeting held in Sacramento in August 1973 in the presence of the membership, Krolikowski complained about Mr. Weaver's conduct in permitting men to "jump the board," that is to take jobs without registering on the out-of-work list and waiting their turn for employment. According to Krolikowski's credible and uncontradicted testimony, Weaver told Krolikowski if he didn't like the way Weaver was running things he could go some place else to work. In August 1973, Krolikowski left California for Arizona where he found work as an ironworker by referral through the union hall in Arizona. While employed in Arizona, Krolikowski journeyed to Reno, Nevada, in September 1973, to testify as a witness for the General Counsel of the NLRB in contempt proceedings against Mr. Van Bourg, one of the Union's attorneys. It is agreed that Krolikowski's testimony was adverse to Mr. Van Bourg. The court, however, dismissed the contempt proceedings. After testifying in the contempt matter, Krolikowski re- turned to Arizona to resume employment as an ironworker where he remained until March 21, 1974, when he returned to Sacramento. With his return to Sacramento, Krolikow- ski registered at the union hall in the latter part of March 1974, and thereafter during the workweek he reported at the union hall daily. During March and April, he was not referred to any jobs. Each Monday, he would reregister by signing the out-of-work book. He signed the book on April 29 and again signed it on Monday, May 6, 1974, as re- quired by the hiring hall procedures. As on other days, Krolikowski was physically present in the union hall be- tween 8 to 10:30 a.m. each workday; namely, on Monday, April 29; Tuesday, April 30; Wednesday, May 1; Thurs- day, May 2; and Friday, May 3, 1974. During this period in April and May, there were about 100 out-of-work ironworkers on the out-of-work board. On April 29, according to Krolikowski's credible and uncon- tradicted testimony, he was No. 6 on the A list, and on Friday, May 3, 1974, he was still No. 6 on the A list. Kroli- kowski noticed, and I find, that at that time certain iron- workers who were apparently dispatched to the Bostrom- Bergen job at Roseville, California, and who began work on that job on Monday, May 6, 1974, were in fact not even registered on the out-of-work board or who, if registered, were below Krolikowski's name on the list. Those who were dispatched to the Bostrom-Bergen job by Charles Weaver, the Union's business manager, and their position on the list was as follows: The names of James Chandler, Alex Velasco, and Roland Williams were not on the out-of- work board. Melvin Sills' name preceded Krolikowski's name on the board. Dee Smith's name was on the board, but at the bottom of the list? The contention is therefore made by the General Counsel that by dispatching Chan- dler, Velasco, Williams, and Smith to the Bostrom-Bergen job on Friday, May 3, to begin work on Monday, May 6, 1974, to the prejudice of Krolikowski who was not dis- patched at that time, the Union discriminated against him for reasons which are irrelevant, invidious, and unfair and/ or because of his having engaged in union activities. Kroli- kowski also testified credibly and without contradiction that contrary to the custom to announce a job opening on the loud speaker, no announcement was made by Weaver of the job openings on the Bostrom-Bergen job on May 3. On Monday, May 6, 1974, Krolikowski visited the Bos- trom-Bergen jobsite and there found the men working who had been dispatched ahead of him. On Tuesday, May 7, 1974, at the union hall, Krolikowski confronted Business Manager Weaver concerning the May 3 dispatch to the Bostrom-Bergen job. Krolikowski asked Weaver "how come men were jumping from job to job and he isn't putting a stop to it." Weaver, Krolikowski credibly 1 The General Counsel of the Board had charged that Mr Van Bourg had violated a temporary injunction granted by a United States District Court in proceedings under Sec 10(j) of the Act 2 No claim is made by the General Counsel that the dispatching of ap- prentices Thornton and Elliott to the Bostrom -Bergen job where they began work on May 6, 1974. violated the hiring hall procedures. As I have noted above, apprentices are excluded from the hiring hall procedure INTL. ASSN. OF BRIDGE, ETC., LOC. 118, AFL-CIO testified, replied that he was running the board and that he put these men in the jobs wherever he wanted to. Weaver also said, "That damned board doesn't mean a thing to me, and if you don't like the way I'm running things around here, go back to Arizona." Krolikowski concedes that this reply angered him and he "cussed at him." Weaver told Krolikowski "to go home and get a gun if you don't like the way I am running things around here-and if I didn't like it, I could be like the rest of them `Reno rats' and run down to the stink'en NLRB and see what they could do about it.,, 3 No claim is made by the General Counsel that the Re- spondent discriminatorily deprived Krolikowski of em- ployment beyond Friday, May 10, 1974. On May 10, Kroli- kowski was referred by Weaver to start working on the Bostrom-Bergen job as ironworker beginning Monday, May 13, doing "bolt-up" work. C. The Respondent's Defense The Respondent's defense is based almost entirely on the testimony of its present business manager, Maxi C. Sturgess, who was elected to that office in July 1974 to replace Charles Weaver. Sturgess was business agent in May 1974. Although about 10 days before the hearing at the request of the General Counsel, the NLRB issued a subpena to the Respondent to produce, inter alia, its dis- patch records for the workweek ending May 3 and 10, such dispatch records were not produced, Business Manager Sturgess testifying that he had searched for them but could not find them. Not only were the relevant dispatch records not produced, additionally the Respondent's counsel did not subpena, or call former Business Manager Charles Weaver as a witness ° to explain his failure to dispatch Krolikowski to the Bostrom-Bergen job on May 3, notwith- standing his priority in the board ahead of Smith, Velasco, Chandler, and Williams who, it is not disputed, were dis- patched to the Bostrom-Bergen job 5 Sturgess had no part in the dispatch of ironworkers to the Bostrom-Bergen job on Friday, May 3, to begin work- ing the following Monday, May 6. He testifies, however, that, in pursuit of his routine work as business agent, he visited the Bostrom-Bergen jobsite on May 6 to attend to his usual duties of policing the job . Sturgess testified that on May 6 construction began on a warehouse building. On May 6, Sturgess observed there was a "raising gang" pre- sent erecting steel . They were unloading railcars and dis- tributing iron in preparation for steel erection. This work is typically done by a "raising gang" which is normally com- posed of four men and one foreman. The persons who do the work in a raising gang are called "connectors" and 9 Weaver was referring to charges filed by employees Wendel Phillips and George Lorentzen alleging hiring hall violations in the operation of the Union's hiring hall in Reno, Nevada. Complaints by the NLRB on these charges were settled in November 1972 by stipulation for the entry of a ,judment by the United States Court of Appeals for the Ninth Circuit. 49Respondent's counsel stated on the record that he attempted to contact Weaver without success. Weaver, however, still resided in Sacramento. S Smith , according to Krolikowski's testimony, was at the bottom of the board whereas Velasco, Chandler, and Williams were not even listed on the board. 469 hook-on men. Work done by "connectors" is considerably different from work done by other ironworkers. Because erection of steel is very dangerous, usually the younger men, the more agile men work in erection. The younger men are more agile, they are sure-footed, quicker acting, and they can do all the work which is mostly climbing columns and walking across beams and everything is loose. The connector sometimes has to climb a column, lock his legs around it in order to put bolts in a beam, and this takes a lot of strength.6 Sturgess testified further that after the erecting gang starts up a job, then the other workers can come on the job and perform their tasks. Then the job superintendent hires men for plumbing up the iron, bolting the iron, certified welders and apprentices. Aprentices nor- mally unload and distribute bolts, shake out bolts, and do job cleanup. The group of people that are doing the bolt-up work normally follow the erectors. The erectors continue to erect and the bolt-up men come up behind them. Concerning designation of the foreman, Sturgess testi- fied that this is usually left to the job superintendent who either calls in and requests a foreman by name or at other times gives the business agent or business manager, who- ever is dispatching at the time, the authority to get him a good foreman, one capable and qualified to do the work. Sturgess testified he saw both Dee Smith and Velasco on the jobsite on May 6. At that time, Smith was running the erection crew and Velasco at that time had one man and two apprentices that were in the process of stocking and shaking out miscellaneous iron, hand iron and bolts, get- ting in preparation to hire more people to start work. Stur- gess testified he checked out the job with Ronnie Williams, the job steward. Sturgess further testified he observed Chandler on the job, and he was "connecting." Sturgess testified he also saw Sills on the job who was there as a spare connector. He also saw two apprentices on the job; namely, one minority apprentice named Thornton and one apprentice named Elliott. Sturgess testified that in the first week, May 6 to 10, there was no work other than "connection" work available. Sturgess further testified that he checked the dispatch slips the first day that he was on the job, May 6, because he himself had not dispatched the men, and he wanted to make sure they were properly cleared from the union hall, as well as checking their dues and assessments. He did check some of the dispatch slips, but does not recall look- ing at Smith's dispatch slip or Velasco's dispatch slip, but does recall checking Chandler's dispatch slip and Job Steward Williams' dispatch slip. Sturgess further testified that he inquired of the general superintendent how Smith and Velasco became foremen on the job and the general superintendent replied that he had hired these two men? In 6 Krolikowski agreed that connecting iron as it is hoisted in the air takes place when a job first starts off, that it requires climbing columns and holding on to columns without flooring or safety, and that it is generally done by the younger workers because they are stronger and get around better. Krolikowski conceded that he is not qualified to be a connector on account of his age. r Sturgess' testimony that the general superintendent told him that he had hired Velasco and Smith as foremen is not inconsistent with Krolikowski's testimony that the superintendent told him that he didn't call for these fore- men by name. It should be noted that Sturgess relates his conversation with Continued 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this connection, Sturgess testified that it is the general rule for the Company to request the foreman by name and the Union has the obligation to honor this request. Sturgess testified that he returned to the job the follow- ing week beginning Monday, May 13. At that time, he found Krolikowski as well as several ironwokers on the job .8 It is not disputed that Smith and Velasco continued as foremen on the job in the following weeks. D. Analysis and Recommendations I am of the opinion, and I have concluded that the Gen- eral Counsel has not established by a preponderance of the evidence that the Respondent violated Section 8(b)(1)(A) and (2) in failing to dispatch Krolikowski to the Bostrom- Bergen job on May 3 to begin work on May 6, 1974. It is fair to conclude that Business Manager Weaver was irritat- ed by Krolikowski's criticism of the manner in which he administered the hiring hall, and this resulted in a shouting match between the two on May 7, but the fact remains that the people who were dispatched to the job to start work on May 6 were the two foremen, Velasco and Smith, who were requested by Bostrom-Bergen's general superintendent, and Chandler, Sills, and Williams as "connectors," a spe- cialty which Krolikowski admits he was too old to perform. The hiring and job referral procedures set forth in Section 5 of the collective-bargaining agreement expressly provide that the order of referrals not be followed in cases where individual employers require and call for applicants pos- sessing special skills and abilities. Additionally, the con- tractual referral procedures do not apply to the hiring of apprentices. The referral procedures also provide that the individual employer has the right to employ directly a min- imum number of key employees who may include foremen. Although some parts of Sturgess' testimony rest on hear- say statements, they are in the main corroborated by the extrinsic facts, for example, that Velasco and Smith were, in fact, the two foremen on the job and that the others were the general superintendent whereas Krolikowski relates his conversation with the superintendent, two different individuals 8 Krolikowski conceded by his testimony that when he registered for work he did not specify any specialties other than stated on his card , namely, that he was available for jobs as foreman, welding, rigging, and structural work Krolikowski conceded that he was not a "connector ," that there are types of "connecting" he cannot do because of his age; and mainly younger men get out on these jobs. Krolikowski conceded it had been quite a few years since he worked as a foreman. 9 Sturgess' testimony that the general superintendent told him he had hired Smith and Velasco as foremen , although hearsay , was received with- out objection or motion to strike; and I have credited it What the Ninth Circuit said in N L R.B. v. I. U 0 E Local 12, 413 F.2d 705 ( 1969), concern- ing the probity of hearsay testimony applies in the instant case. Hearsay, even at common law , if unobjected to when offered, can be of probative value , and certainly occupies a similar position in an ad- ministrative proceeding such as this. . A proceeding before the Board is to be conducted in accordance with the rules of evidence applicable in the District Courts of the United States. N.L.R A., Sec- tion 10(b), 29 U.S C, Section 160(b). Unobjected to hearsay is admissi- ble and of probative value in the district courts. Pearson v Dennison, 353 F.2d 24, 29, fn. 10 (C A 9, 1965). connectors.9 Moreover, Sturgess' testimony is not contra- dicted or refuted by other evidence in the record. I am satisfied that the Respondent through Business Manager Sturgess' testimony presented a satisfactory explanation for Respondent's failure to dispatch Krolikowski to the job the first week beginning May 6, 1974. The fact is undisput- ed that Krolikowski, with a number of other men , was dis- patched beginning the second week of work, namely, on May 13, 1974, and presumably remained on the job there- after. Sturgess' testimony that "connectors" were required the first week, work that Krolikowski concededly was not qualified to do, and that the foremen were selected by the general superintendent , in my opinion constitutes a legiti- mate business reason, sanctioned by the hiring hall lan- guage, and supports the propriety of the Respondent's fail- ure to dispatch Krolikowski on May 3.10 I would therefore find that Respondent's failure to dis- patch Krolikowski to the Bostrom-Bergen job on May 3, did not violate Section 8(b)(1)(A) or (2) of the Act, and I would dismiss the complaint. E. The Collyer Question The collective-bargaining agreement between the mul- tiemployer group and the District Council of Iron Workers contains a grievance procedure that an employee may fol- low who is aggrieved by the operation of the hiring hall. Such employee may appeal to an Appellate Tribunal con- sisting of a a representative selected by the employees and a representative selected by the Union and an impartial umpire appointed jointly by the employees and the Union, and the decision of the Appellate Tribunal shall be final and binding. The Respondent contends that the dispute is appropriate for deferral under the Collyer doctrine, 192 NLRB 837 (1971), which affords a contractual remedy for a meritori- ous complaint by an individual employee. I disagree, as the interest of Krolikowski, the aggrieved party, is opposed to the position of the Union, and there is no assurance that representatives of the employers or the Union who, together with an impartial umpire, compose the Appellate Tribunal whose decision is final and binding, would fairly represent Krolikowski in his grievance against the Union's administration of the hiring hall provided by the collective-bargaining agreement. In this connection it should be noted that the Respondent herein is a consti- tuent member of the District Council of Iron Workers, par- ty to the contract with the multiemployer group. See Kan- sas Meat Packers, 198 NLRB 543 (1972); National Football Leagues, 203 NLRB 958 (1973); Seafarers Union, 207 NLRB 958 (1973); Carpenters Union Local 180, 162 NLRB 950 (1967); International Association of Bridge, Structural and Ornamental Iron Workers, Local Union 229, 183 NLRB 271 (1970). 10 See, for example, New York Typographical Union No. 6 ITU (New York Times), 144 NLRB 1555 (1963); Local 357 International Brotherhood of Teamsters [Los Angeles-Seattle Motor Express] v. N.L.R B, 365 U.S. 667 (1961); Local Union No. 181, Operating Engineers (Nicholson Construction Company), 141 NLRB 750 (1964); Plumbers Local 454 (Ebasco Services, Inc.), 176 NLRB 896 (1969); I B.E W. Local 456 (N E.C.A ), 183 NLRB 1277 (1970) INTL. ASSN. OF BRIDGE, ETC., LOC. 118, AFL-CIO CONCLUSIONS OF LAW 1. The Employer, Bostrom-Bergen, is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has not violated Section 8(b)(1)(A) or 8(b)(2) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record in this case , and pursuant to Section 471 10(c) of the Act, I hereby issue the following recommend- ed: ORDER 11 The complaint is hereby dismissed. 11 In the event no exceptions are filed as provided in Sec 10246 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 said Rules and Regulations, be adopted by the said Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes