Everett Construction Co., Inc.

National Labor Relations Board - Board Decisions

Oct 31, 1970

186 N.L.R.B. 240 (N.L.R.B. 1970)

240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Everett Construction Company, Inc. and Bobby Nick
Ward
Gilco Construction Company and Bobby Nick Ward
Local Union No. 198, United Association of Journey-
men and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada,
AFL-CIO j (Everett Construction Company, Inc.;
Gilco Construction Company) and Bobby Nick
Ward. Cases l5-CA-3700, 15-CA-3700-2, and
15-CB-1041
October 31, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On June 24, 1970, Trial Examiner Wellington A.
Gillis issued his Decision in the above-entitled
proceeding, finding that the Respondents had en-
gaged in and were engaging in certain unfair labor
practices in violation of the National Labor Relations
Act, as amended, and recommending that they cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Employer Respondents and
the Union Respondent filed exceptions to the Trial
Examiner's Decision and briefs and the General
Counsel filed a brief in support of the Trial Examin-
er's Decision.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has delegat-
ed its powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case. As we find merit in the
exceptions, we hereby adopt the Trial Examiner's
findings, conclusions, and recommendations only to
the extent consistent herewith.
The Trial Examiner concluded that the Union
engaged in unfair labor practices within the meaning
of Section 8(b)(2) and (1)(A) of the Act by attempting
to cause and by causing the Employers to discrimi-
nate against Ward because of his nonmembership in
the Union, and the Employers engaged in unfair labor
practices within the meaning of Section 8(a)(3) and (1)
of the Act by discharging Ward because of his
nonmembership in the Union.
The record shows that the Union, a Louisiana labor
organization, sought to relieve a local unemployment
186 NLRB No. 40
problem by causing employers to fill local jobs with
local residents on a nondiscriminatory basis; and that
Ward, who was not a local resident, was terminated so
that his job could be filled by a local resident. In order
to obtain its objective of preserving local jobs for local
residents, the Union's agreements with the local
Industrial Contractors' Association (Everett, an out-
of-State contractor, was not a member), in evidence as
Union's Exhibits 1 and 2, provided in part that the
Employer agreed to use the Union in hiring employ-
ees; and the Union agreed to refer applicants on a
nondiscriminatory basis, in no way affected by union
membership or nonmembership, but based only on
qualifications, seniority (including the chronological
order in which the applicants applied), and residence,
under rules adopted by a Joint Referral Committee.
Contrary to the Trial Examiner, we do not believe
that the evidence preponderates in favor of a finding
that Respondent Union and Respondent Employers
violated the Act in the discharge of Ward. An
exclusive hiring hall is not per se unlawful and it may
be implemented lawfully by a requirement that local
employees be given preference in employment oppor-
tunities. While the testimony relating to the Union's
objective in seeking to replace Ward with a local
welder makes reference to "Union men" or "local
Union men" as well as "local men," such testimony is
insufficient to rebut the substantial evidence that the
Union was very much concerned with the unemploy-
ment status of local residents. The fact that such
employees were union members does not derogate
from the Union's lawful interest in securing employ-
ment for them. The Union's objection to the employ-
ment of Ward, a nonresident, on the ground that local
welders were out of work, cannot be ignored solely
because Ward, unlike his competitors, was not a
member of the Union. This circumstance creates no
more than a suspicion that the Union would not have
sought his discharge, despite his out-of-town status, if
he had been a union member.
Since we find no record support for the Trial
Examiner's conclusion that the Respondents discrimi-
nated against Ward because of his nonmembership in
the Union, we shall dismiss the complaint in its
entirety.
ORDER
It is hereby ordered that the complaint herein be,
and it hereby is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WELLINGTON A. GILLIS, Trial Examiner : This case was
heard by me at New Orleans , Louisiana , on April 14, 1970,
and is based on three separate charges filed on December 2,
EVERETT CONSTRUCTION CO. 241
1969, and February 2,. 1970, by Bobby Nick Ward, an
individual; and upon a consolidated complaint, issued on
February 17, 1970, by the General Counsel for the National
Labor Relations Board, hereinafter referred to as the
Board, against Everett Construction Company, Inc., and
Gilco Construction Company, hereinafter referred to
respectively as Everett Construction and Gilco or as
Respondent Companies, and Local Union No. 198, United
Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States
and Canada, AFL-CIO, hereinafter referred to as Local
198 or the Respondent Union, alleging violations of Section
8(a)(1) and (3), Section 8(b)(1)(A) and (2), and Section 2(6)
and (7) of the National Labor Relations Act, as amended
(61 Stat. 136); and upon answers timely filed by each of the
Respondents denying the commission of any unfair labor
practices.
At the hearing, all parties were represented by counsel,
and were afforded full opportunity to examine and cross-
examine witnesses , to introduce evidence pertinent to the
issues and to engage in oral argument. Subsequent to the
close of hearing, timely briefs were filed by counsel for the
General Counsel, the Respondent Union, and the Respon-
dent Companies.
Upon the entire record in this case, and from my
observation of the witnesses, and their demeanor on the
witness stand, and upon substantial reliable evidence
"considered along with the consistency and inherent
probability of testimony" (Universal Camera Corp. v.
N.L.R.B., 340 U.S. 474, 496), I make the following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF RESPONDENT COMPANIES
Respondent Everett Construction is a Texas corporation
with its principal office and place of business located in
Houston, Texas, and is engaged in the building and
construction business. During the 12 months immediately
preceding the issuance of the complaint, Respondent
Everett Construction received in excess of $50,000 for work
performed in the State of Louisiana for United Gas
Pipeline Company.
Respondent Gilco is a Louisiana corporation with its
principal office and place of business located in Opelousas,
Louisiana, and is engaged in the business of pipeline
construction and equipment rental. During the 12 months
immediately preceding the issuance of complaint, Respon-
dent Gilco performed services valued in excess of $50,000
for Humble Oil and Refining Company in the State of
Louisiana. Humble Oil and Refining Company, in turn, is a
Delaware corporation maintaining places of business,
terminals, and facilities in many states including Louisiana,
Texas, and New Jersey, and is engaged in the manufacture,
sale, transportation, and distribution of petroleum and
related products. Humble Oil annually sells, distributes,
and transports in interstate commerce products having a
value in excess of $50,000.
The parties admit, and I find, that Everett Construction,
Gilco, and Humble Oil are employers engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The parties admit, and I find, that Local Union No. 198,
United Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States
and Canada, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Issue
Whether the termination of employment of Bobby Nick
Ward on November 19, 1969,1 was based upon his lack of
membership in the Union.
Facts
During the last week in October, Everett Construction, an
out-of-state company, commenced preparations for the
construction of a compressor station and meter station for
United Gas Pipeline Company at a jobsite located some 5
or 6 miles north of Opelousas, Louisiana. Initially, under
the supervision of Everett Construction's job superintend-
ent, Thomas Haynie, Everett Construction was engaged in
the clearing, grubbing, and grading of access roads,
working with equipment rented from and operated by
employees of Gilco on an hourly basis. Along about the
first week of November, a small number of Everett's
employees also started on the job, including some laborers
digging structural excavations, a few carpenters doing form
work, some rig welders welding pipeline for the lines, a
couple of pipe fitters, and a few helper craft. A number of
these were considered by Everett Construction to be its key
employees and had come up from Houston, Texas, to work
on the job. Among these was Bobby Nick Ward, the alleged
discriminatee herein, who was hired as a pipe welder on
November 3 by Haynie and who continued as an employee
on Everett Construction's payroll until November 19 when
he, and the other welders, were terminated.
At some point during this week, according to Ward's
undisputed testimony, he overheard a conversation on the
job involving Haynie, Bill West, business manager for Iron
Workers Local 623, and John Trotti , assistant business
agent for the Pipe Fitters Local 198. After introducing
themselves, the Union officials asked Haynie if the job had
been bid in on a union job. When Haynie replied that it had
not, the union men said they would like to talk to him and
suggested they go to Haynie's office, which they did. Later,
after Trotti and West had left the jobsite, Ward asked
Haynie if the men were union representatives, to which
Haynie replied in the affirmative and asked Ward if he had
a union book. Ward answered that he did not, and Haynie
asked if any of the other welders had a book. Ward said he
did not know for sure, that Haynie would have to ask them.
Toward the end of that first week, Sheriff Ledoux of
Opelousas asked Haynie to attend a meeting in his private
office. Present at this meeting, in addition to Ledoux and
1 Unless otherwise noted , all dates hereinafter refer to the year 1969.
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Haynie, were Albert Durbin, business manager for 198, and
Lee Fuller, assistant business agent for Local 623, both
locals headquartered in Baton Rouge, Louisiana. Sheriff
Ledoux opened the meeting by recognizing that the men
were all acquainted with each other, and stating that he was
not a construction man nor a union man, but that he was a
law enforcement officer and did not want nor anticipate
any trouble. When Ledoux continued by asking the men to
attempt to get together and to work out some agreement to
preclude any problems on the job, Haynie stated that he
was willing to hire any of the local people that were
qualified to do the work, that all Durbin had to do was to
send welders out and he would give them a test, and would
hire them if they were qualified. Durbin told Haynie he
could not send anybody out there "unless there was an
agreement signed ." Haynie replied that he did not have the
authority to sign any kind of an agreement and that he
would have to contact Mr. Claude Everett, president of
Everett Construction.
On Friday, November 14, after Gilco's and Everett
Construction's employees were on the job, some 10 to 15
pickets, including Local 198's Trotti, appeared and
established a picket line at the gate to the plant entrance.
The picketing ceased prior to quitting time and no incidents
occurred.
The following Monday, November 17, some 50 to 60
pickets appeared, this time blocking the gate. Haynie met
Trotti at the picket line early that morning, and was told
that the Union was picketing Everett Construction
Company, and that, as job superintendent for Everett
Construction, he could not go in. Haynie went back to
Opelousas to talk to the sheriff, intercepting his employees
who were headed for the job.2 Haynie told his men to wait
there, that he would talk with the sheriff and come back
and tell them what to do. Haynie went on to Opelousas,
talked with Sheriff Ledoux who told him he would send
some deputies out, and that he would have to talk with the
district attorney. Haynie, apparently after a short delay,
returned to the picket line, meeting the deputies as they
were leaving . Haynie was told that the sheriff's message,
whatever it might have been, had been delivered to the
pickets. When Haynie approached Trotti, however, the
latter told him that "things hadn't changed any." Haynie
said he would like to go on in because he had some gas
scheduled to arrive. Trotti told Haynie that the gas truck
had come, and had left after refusing to pass the picket line.
Haynie left and returned to Opelousas where he again
talked to Sheriff Ledoux. Pursuant to his promise, Ledoux
went out to the picket line about 11 a.m., followed by
Haynie. After talking separately with Trotti and several
pickets for a few minutes, Ledoux went over to Haynie's
truck and told him that "they were not going to try and
keep me from doing my work." Once Ledoux left, however,
Trotti turned to Haynie and said "that hadn't changed
anything."
Haynie returned to his men and told them to give their
motel telephone numbers to his timekeeper, and for them to
stay in the area, that they would not lose any time, and that
he would be in touch with them later.
Haynie, back at Opelousas, called Claude Everett in
Houston, Texas, apprised him of the picket line and the fact
that his employees "were unable to enter the job to work.
" Haynie asked Everett what course of action he should
take, to which Everett replied that he would come to
Opelousas. Upon arriving early that night, Everett immedi-
ately contacted Haynie, learning that his employees were
not able to get on to the job and that Haynie had received
no cooperation from the local law enforcement authority as
to clearing the road of pickets in order that the vehicles
could enter. Everett, aware that Gil Cortez, president of
Gilco, was a lifelong friend of Sheriff Ledoux and highly
thought of in the Opelousas community, telephoned Cortez
and asked him to intercede for him with Ledoux to see if he
could get access to the job. Cortez agreed to do so, but, as
Ledoux was out of town for the evening, nothing was
accomplished until the next day.
Later Monday night, Haynie went to Paul Ray' s motel
room where Everett Construction's welders and helpers
were assembled, and told them that he wanted them to go
to work the following morning and to meet him at the Pure
Oil truckstop. At 5:30 a.m., Tuesday, November 18, the six
employees met Haynie at the designated spot. In reply to
Ward's question as to whether the Company was going to
reimburse the welders for any damage that might be done
to their trucks or equipment, Haynie answered that the
Company would not. Ward then asked Haynie if the sheriff
or any of his deputies were going to be there, and was told
that they would not. Haynie then told the employees that if
they wanted to go down they could all get together and try
to go through. When Haynie told Ward, who appeared to
be the employee spokesman, however, that he could not
assure them protection, Ward replied that his truck and his
equipment were his living, that he could not afford to have
it turned over or torn up, and that he did not care to cross
the picket line.3 Haynie's reply was that he understood and
did not blame the employees for their feelings, and that he
had rather not take them down to the job. Haynie told them
that it would be best for him to go and for them to stay, that
he would return shortly and tell them what to do. Haynie
told them that he would pay them for standing by,
apparently at the rate of $5 per hour for a 9-hour day. The
employees were paid $9 per hour straight time for Monday,
with the standby pay starting on Tuesday.
According to the undisputed, but uncorroborated
testimony of Ward, Haynie returned shortly, telling the
men it was a good thing they did not go down to the plant
because there were about 200 men there and that they had
grabbed hold of his truck and shook it. Haynie also told
them that he had been asked where his crew was and that
he had replied that they had better sense than to go down to
the picket line.
Tuesday afternoon, around 2 o'clock, Haynie dropped by
Ward's Port Barre motel room where the employees again
were congregated, and told them that Mr. Everett was in
2 These employees included the three rig welders, Ward, Paul Ray, and as he so testified, that he was ready to cross the picket line, that he was
A. J. Dupre, three helpers, and two additional welders who had just come armed and would attempt to defend himself if there were any attempt to
from Houston to be tested. destroy his equipment or to do him harm, I find Haynie's testimony, above,
3 While at some point in the conversation Ward may have told Haynie, to reflect the ultimate decision on the matter.
EVERETT CONSTRUCTION CO.
town, that they had not reached any agreement yet but that
they were discussing a settlement for an agreement with the
Union. When Ward stated that he did not feel that he could
remain there too long at $5 per hour standby pay, Haynie
told the employees he would pay them in addition $7 per
day subsistence. Haynie stated that it would probably be
only one more day before they knew one way or the other
what was going to happen.4
At some point of time on Tuesday, November 18, Everett
and Cortez got together and entered into a verbal
agreement , later reduced to writing, whereby, inter aka,
Gilco agreed to serve as management and personnel
consultant for Everett Construction until the completion of
the job at Opelousas. Everett's reason for entering into this
agreement with Gilco was "in order that Everett Construc-
tion Company would have a local representative of
substance to represent them in the relations or negotiations
or other contracts we would have with the local business
interests ; with the local interests , not just business interests,
all local interests," and "because I felt like that we had,
before the agreement was entered into, information had
been given to Mr. Cortez to the effect that we were an out-
of-state contractor, that we were in some peoples' opinion
not qualified to complete thejob."
With this arrangement agreed upon, that night a meeting
was held in Sheriff Ledoux's office in the St. Landry
County Courthouse in Opelousas. In attendance, in
addition to the sheriff and his deputy, were Everett, Cortez,
Trotti, and Fuller. Based upon the testimony of Everett and
Cortez, the owners of the two Respondent Companies and
the only two present at the meeting who testified in this
proceeding , there is no question but that the real problem
discussed at this meeting , and the meeting to follow the
next morning , concerned the employment on the job of two
crafts, welders and pipefitters. Beyond that, however,
because, with few exceptions, neither testified as to who
said what to whom during the course of the 1-hour meeting,
the crux of what exactly took place is not too clear. At one
point, however, when asked by counsel what was said by
Trotti as to the Union's picketing at the jobsite, Everett
testified that Trotti stated that "We were employing people
from out-of-State , and that they had local people who were
out of work, and that they were insisting that the pickets
remain out there until we agreed to employ these people
whom they referred to us." With reference to welders,
Cortez testified that "they wanted local people. They had
Union people, but local people, riding beside this job that
had to pass here to go home, really there was one in
Melville, one in Krotz Springs, and one in Eunice, as I
recall." When Cortez registered concern about damage to
his equipment were he to leave it on thejobsite, Trotti told
him he did not have to worry, that the Union would protect
his equipment and guarantee him and his operators safe
access to and from the job. Because his operators were
nonunion Cortez asked what would prevent other picketing
if they agreed to work these men if they were qualified. He
was told that the Union was not concerned with the
4 Haynie was operating under instructions from Everett to pay his men
and have them stand by to see what comes out of the meetings, to see
"what we can do about keeping the people on
5 Apart from the agreement as to the Union 's referral system , at some
point , Trotti also submitted to Cortez a written contract for execution by
243
operators or the laborers, but only with the welders and
pipefitters. When Cortez asked for some guarantee that
there would be no further work stoppages and no violence,
it was suggested that they should contact Durbin and West,
business managers of the two local craft unions, and set up
a meeting for 10 a.m. the next morning.
On Wednesday morning, November 19, at the scheduled
hour, with Shenff Ledoux, Everett, Cortez, Fuller, Trotti
and Durbin present, the parties met at the Opelousas Inn.
The Shenff opened the meeting , according to Everett, by
stating its purpose; namely, "to work out an agreement
whereby we would use local people referred to us by these
two unions, and to also further agree that there would be no
work stoppages or slow downs or pickets, or any other labor
trouble for the next 6 or 8 odd weeks that it would take to
complete that job." After further discussion on the matter,
an agreement was reached between the Union, on one
hand, and Everett Construction and Gilco on the other,
whereby the employers would hire qualified local welders
and pipefitters through the Union, using the Union's
referral system, and to pay union wages and granting union
benefits to those referred.5
Pursuant to this agreement, according to the testimony of
Everett, the Union asked Everett Construction to terminate
any welders who were not from the immediate locality.
According to the testimony of Cortez, in reply to his
question of whether the welders who had been working on
the job could "buy a book," Cortez was told that "they
could not sell books because they had too many local men
out of work." Cortez followed this with the additional
question as to working permits for the welders currently
employed by Everett Construction, and was given the same
answer, "too many local men that were out of work." When
lead by counsel on cross-examination , Cortez' testimony
was that he was told that the Union had too many "local
Union men out of work." Subsequently, Cortez volunteered
the testimony that Trotti told him that "they didn't see
where they could issue permits books (sic), because they
had too many men out of work at this time, especially local
men." Thereafter, Cortez asked the Union people if they
had any local welders who were certified by United Gas.
When told that they had, Cortez told them to send them
outs
Early Wednesday afternoon following the meeting,
Everett apprised Haynie of the agreement with the Union
whereby they "would hire people referred to us by the two
local craft unions . .." and asked him to convey the
information to the men. Everett also instructed Haynie that
he was to do this through Cortez, that his need for men
should be made known to Cortez and Cortez would call the
Union hall for men.
Around 2 p.m., Haynie met Ward and Dupre in a local
cafe having lunch, and, according to the credited testimony
of Ward, told them "well, the Company has gone Union
and they agreed to hire union personnel." When Ward
queued as to where that left them, Haynie said he had to let
them go. Ward then voiced his understanding that when a
the employers Such contract, however, was never signed.
6 Contrary to the testimony of Cortez that he did not give the Union an
order for men, Durbin testified that Cortez gave him an order for six
welders for the following morning
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company signs a contract with a union the employees are
afforded the opportunity to join the union and to continue
working. Haynie answered that the Union would not let
them do that. Ward then asked Haynie about the possibility
of buying a book or securing a work permit, and Haynie
replied that the Union would not permit either. Haynie
then stated that he was sorry to have to let them go, but that
"we are going to hire Union personnel, and they won't let
us let you stay on the job, so we got to fire you." Haynie
further told Ward and Dupre that he would pay them for
the rest of the day, plus 8 hours travel time back to
Houston.?
ANALYSIS AND CONCLUSIONS
The General Counsel contends that Bobby Nick Ward
was unlawfully terminated because of his lack of member-
ship in the Union, and that the Union caused his
discriminatory termination. The Respondent Employers
assert that they did not violate Section 8(a)(1) and (3) of the
Act in terminating Ward because first, Ward was an
independent contractor rather than an employee subject to
the protection of the Act; and second, in any event, they
yielded to lawful union pressure to hire local residents
through the Union hall. Respondent Gilco argues, addi-
tionally, that it was not a joint employer with Everett
Construction and therefore cannot be held responsible for
Ward's termination. Further, both Respondent Employers
take the position that, assuming, arguendo, an unlawful
purpose by the Union, the Union and not the Employers
should be held liable for remedying the unfair labor
practices. The Respondent Union alleges that it did not
cause or attempt to cause Ward's discharge, and asserts in
effect that Ward's termination was the result of the Union's
lawful attempt to secure an agreement where by Everett
Construction would employ local labor on the job.
With respect to the first contention raised by the
Respondent Employers, the record reveals that Ward was
employed by Everett Construction's superintendent Haynie
as a pipe welder or rig welder, that, apart from the first few
days when he performed routine unloading of trucks, Ward
performed welding functions under Haynie or the welding
foreman from whom he received his instructions. Ward
owned his own I-ton truck and his tools and welding
equipment, the latter valued at approximately $5,000. He
carried his own standard liability and collision insurance
policy on his truck but none on his equipment. Ward was
hourly paid at the rate of $9, with neither social security nor
withholding tax deducted from his paycheck. He worked
irregular hours as directed by Haynie, and was supplied a
helper hired by Everett Construction. The latter, which
carried workman's compensation insurance for him,
supplied the materials with which Ward worked, including
all of the pipe and fittings. The amount of time Ward and
the other welders worked was entirely regulated by the
Company.
While Ward's employee status differed somewhat from
that of the normal employee working for an employer, the
fact remains that Everett Construction had the right to
control, and in fact, through Haynie, did control, Ward in
the performance of his daily duties. In a recent case where
the employer raised the precise argument under a similar
fact situation, the Board found contract welders to be
employees rather than independent subcontractors.8 Ac-
cordingly, I find without merit the assertion of the
Respondents that Ward was not an employee entitled to the
protection of the Act.
Skipping for the moment the crucial issue raised by the
pleadings, and treating with the assertion of Gilco that it
was not a joint employer with Everett Construction, we
must first look to the agreement verbally entered into by
Everett and Cortez on November 18, and executed in
writing on November 25. In addition to naming Gilco as
management and personnel consultant on the job for
Everett Construction, the agreement provides that Gilco
shall:
(1) Publicly represent Gilco Construction Company to
be the general labor subcontractor to Everett Construc-
tion for the term of the agreement.
(2) Handle all negotiations and contracts with the
Pipefitters Local and Ironworkers Local which will be
necessary to obtain competent personnel of these crafts
to man the job: advise the Locals of the reasons that
incompetent craftsmen must be terminated and/or
replaced; and in general perform other duties which
may be necessary to maintain good relations with the
Union Locals.
(3) Aid and assist the Job Superintendent to obtain
other personnel and/or equipment which may be
required to properly prosecute the work.
(4) Perform public relation and coordination functions
that may be required to insure that the local law
enforcement authorities carry out the agreements which
were made to the end that there will be no more
picketing or other forms of work interruptions prior to
the completion of the project, and
(5) Perform other duties as may be subsequently
mutually agreed upon.
The agreement further provides that Everett Construction
Company shall:
(1) Provide full supervision necessary for the execution
of the work, other than that specifically assigned to the
consultant.
(2) Pay all bills and be responsible for all claims or other
costs arising out of the performance of the work.
(3) Pay Gilco a fee of $5,000 for the performance of its
duties.
While there is no question but that Everett Construction,
through its superintendent, Haynie, retained responsibility
for all financial obligations under its contract with United
Gas Pipeline Company and remained responsible for the
supervision of its employees on the job, the record reveals
that, in carrying out its responsibilities under the agree-
ment , Gilco's president, Cortez, handled the negotiations
with the Unions during the meetings here involved, and
represented Gilco to be the contractor on the jobsite. Thus,
Cortez was the one who, once the referral agreement with
7 Haynie testified that he merely told them that they were going to have books and stuff."
to hire local people, that permits and cards were out because he had been 8 Local Union 224 and Local Union 830, United Association of
told that "they had people that was [sic] unemployed that already had the Journeymen et al., 152 NLRB 902, 904.
EVERETT CONSTRUCTION CO.
the Union was made, told the Union to send out welders,
and who, subsequently was responsible for calling the
union hall for employees as needed by Haynie on the job.
Cortez, acting for Gilco, as a separate entity, signed the
Union's trust fund agreement along with Everett. The
Eighth Circuit in its decision in the New Madrid case, held
that an important test of employership under the Act, is
whether the contract either expressly or by implication
gives the nonoperating employer "any voice whatsoever in
the selecting or discharging of employees, in the fixing of
wages for such employees, or in any other element of labor
relations, conditions and policies in the plant."9 Primarily
because of Gilco's role under the agreement with Everett
Construction as to the employment of competent person-
nel, I am of the opinion, and so find, that, for the purposes
of the Act, Gilco meets the test of employership as set forth
by the Court in the New Madrid decision. Accordingly I
find without ment Gilco's argument that it is not a joint
employer with Everett Construction and responsible for
Ward's termination.
Turning now to the real issue in this proceeding. Overly
simplified, the facts reveal that, on November 3, at the
outset of the job, and prior to any known union activity,
Ward, an out-of-State, nonunion welder, was hired on the
job by Haynie. Two weeks later, after union picketing, a
couple of union-management meetings, and the execution
of a union referral agreement, Ward, and the other
nonunion welders, were terminated. The question first
arises, why the picketing? There was little testimony on this,
nor is that surprising. For with one unimportant exception,
Ward was the only witness to testify in this proceeding who
was not an official of one of the three Respondents.iO
However, the hidden answer partially may well lie in the
testimony of Cortez. At one point, when asked by counsel if
the Union, through its business manager, Durbin, stated
why it was concerned only about welders and pipefitters,
Cortez testified, "well .. . they had ones that was not
working, the one in Melville, there was one in Eunice not
working, and one in Krotz Spnngs not working. The one in
Melville, the way they found out . . . he was on his way
home . . . and he passed the job and he seen it, and he
reported it to them." "They," coming from Durbin, would
have to refer to union people, not merely local people.ii
At a later point, Cortez testified that these three welders
who were union members contacted the union business
agent about the job. This, coupled with the fact that during
the first week that Everett' s men were on the job, Local
198's Trotti had inquired of Haynie as to whether the job
was a union job, warrants an inference that the Union
found the job to be staffed with nonunion, albeit nonlocal,
welders, and that, with several out-of-work union members
9 N L R B v New Madrid Manufacturing Company and Harold Jones, et
a!, 215 F 2d 908, 913 (C A 8)
10 Assistant Business Agent Trotti, who was among those on the picket
line, was not called upon to testify notwithstanding that he was present at
the hearing Business Agent Durbin did testify briefly, but was not
questioned concerning the picketing nor in fact concerning any demands
made upon the Respondent Companies
11 The record establishes Eunice to be about 20 miles west of Opelousas
Official notice taken of a Rand-McNally map discloses that Krotz Springs
is located approximately 20 miles east of Opelousas and that Melville is
perhaps 12 miles north of Krotz Springs. These towns are all within the
confines of St Landry Parish and also within the large territorial
245
pressing for the jobs, the Union initiated the picketing.
While it may be, as asserted by all Respondents, that the
Union was interested in Everett hiring local people, one
would have to be unduly naive to believe, under these
circumstances, that the Union would have engaged in such
picketing conduct and subsequent contract demands had
these three out-of-work welders been nonunion men.
Further substantiation of the validity of this inference is
found in the ironic fact that , while most of Everett's men
were from out of State, one of the welders who was
subsequently terminated along with Ward was from
Eunice. Thus, one of the results of the picketing and the
Union-Company agreement was the replacement of a
nonunion welder with a Union welder from the same town.
When questioned on the witness stand concerning why the
discharge of this Eunice employee who was qualified and
was local , Haynie testified that he was told to terminate
him, that he "was under the impression that we was going
to use people referred through the Local." 12
All too frequently during the testimony concerning this
issue, attributed to Trotti or to Durbin or to the Union by
Everett, Cortez, and Haynie, was the word "they." Thus,
"we were employing people from out of State, and that they
had local people who were out of work .. -they had
Union people, but local people, riding beside this job . .
-the Union had too many "local Union men out of
work;"-". . . because they had too many men out of work
at this time, especially local men." When, during discus-
sions such as here, union officials are pressing company
officials for jobs, in using the word "they" in the context
above quoted, again, one would have to be pretty naive to
believe that the union officials were not talking about their
union members.
Under all of the circumstances, I find that the Union's
purpose in picketing Respondents' Opelousas project was
to pressure Everett Construction into replacing his
nonunion welders with out-of-work Union men from
within Local 198's territorial jurisdiction. I further find,
contrary to the assertion of the Respondent Companies
that, at some point prior to their capitulation, Everett and
Cortez were well aware of what the Union was attempting
to accomplish. Nor am I inclined, under these circum-
stances, to believe that the Union was truthfully interested
in "local" people, apart from local Union people. The only
specific reference on the record to men who were out of
work and wanting jobs was to the three union people from
Eunice, Krotz Spnngs, and Melville. There was no
indication at any time that any person from the immediate
Opelousas area was interested in the project. In fact,
Durbin testified that under their referral system people
would be referred out of Local 198's hiring hall in Baton
jurisdiction of Local 198 which extends from Baton Rouge , where it
operates its hiring hall, some 60 miles to Opelousas , southeast to Morgan
City, northeast to Gramercy, and then northwest to Baton Rouge
12 Earlier the cross-examination of Haynie went as follows
Q Was he terminated along at the same time with Mr Ward?
A Yes, he was
Q But not because he wasn't local?
A No
Q Why was he terminated?
A Well, I was under the impression we terminated them all
Q Why, because they didn't have Union cards?
A Well, I don't know
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rouge, 60 miles away, to jobs in St. Landry Parish, which,
of necessity, would include the Opelousas project. There-
fore, I find that the Union was interested in jobs for local
people only to the extent that such local people were
members of the Union within its territorial jurisdiction, and
thus, that the alleged premise upon which the Respondent
Union, as well as Respondent Companies, have attempted
to justify the propriety of the conduct herein charged must
fall. Further, that the understanding between Local 198 and
the Respondent Companies entailed the employment of
union welders is apparent from Haynie's parting words to
Ward and his nonunion welders on November 19 to the
effect that "the Company has gone Union and they agreed
to hire Union personnel," followed with "we are going to
hire Union personnel, and they won't let you stay on the
job, so we got.to fire you."
Accordingly, I find, as alleged, that the Union unlawfully
attempted to cause and did cause Respondent Everett
Construction and Gilco to discriminatorily terminate the
employment of Bobby Nick Ward in violation of Section
8(a)(3), thereby violating Section 8(b)(1)(A) and (2) of the
Act. I further find, as alleged, that in succumbing to the
Union's pressures by agreeing to discharge all their
nonunion welders, including Bobby Nick Ward, and
Respondents Everett Construction and Gilco, did so with
knowledge of the Respondent Union's unlawful purpose in
making its demands, and, therefore, in discriminatorily
discharging Ward on November 19, 1969, and thereafter
refusing to reemploy him, Respondents Everett Construc-
tion and Gilco violated Section 8(a)(1) and (3) of the Act.13
Finally, counsel for the Respondent Companies asserts in
his brief that assuming, arguendo, that the Union's purpose
in picketing and its motive in requesting the discharge of
Everett Construction's nonunion welders was unlawful, the
Union and not the Companies should be held liable for
remedying the unfair labor practices. In this regard,
Respondent Companies rely on Bulletin Company, et al., 14
and its principle that the primary burden for restoring loss
of wages resulting from employer discrimination properly
falls on the union whose unlawful pressures caused the
employer to discriminate in those instances where the
employer "took all reasonable measures required to
overcome" the union's pressures, with the employer only
secondarily liable. Contrary to the assertion of Respondent
Companies, there is no evidence here that the Respondent
Companies took any measures to resist the unlawful
pressures of Local 198,15 much less measures of the type
reflected in the Bulletin Company and Zoe Chemical cases.
Therefore, finding without merit the Respondent Compa-
nies' assertion in this regard, I shall recommend that the
Respondent Companies be held jointly and severally liable
with Respondent Union for making Ward whole for any
loss of earnings he may have suffered as a result of the
discrimination against him.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent Companies and the
Respondent Union set forth in section III, above, occurring
in connection with the operations of the Respondent
Companies described in section I, 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 commerce and
the free flow of commerce.
V. THE REMEDY
It having been found that Everett Construction Compa-
ny, Inc. and Gilco Construction Company on the one hand,
and Local Union No. 198, United Association of Journey-
men and Apprentices of the Plumbing and Pipe Fitting
Industry of the United States and Canada, AFL-CIO, on
the other, have engaged in certain unfair labor practices, it
is recommended that each cease and desist therefrom and
that each take certain affirmative action which is necessary
to effectuate the policies of the Act.
It having been found that Everett Construction and Gilco
Construction, on November 19, 1969, at the request of
Local Union No. 198, discriminatorily discharged Bobby
Nick Ward, it is recommended that Everett Construction
and Gilco offer Ward an equivalent position at any project
either Respondent Company has or may have in the
immediate future which falls within the geographical
jurisdiction of Local 198.16 It is further recommended that
Everett Construction and Gilco, jointly and severally with
Local Union No. 198, make Bobby Nick Ward whole for
any loss of earnings he may have suffered as a result of the
discrimination against him from November 19, 1969, to the
date when his employment with Everett Construction and
Gilco would have terminated absent the discrimination
caused by Local 198, the computation to be made in the
manner set forth in F. W. Woolworth Company, 90 NLRB
289, together with interest at a rate of 6 percent per annum
as provided in Isis Plumbing & Heating Co., 138 NLRB 716.
It is also recommended that Local Union No. 198 notify
Everett Construction and Gilco, and Bobby Nick Ward, in
writing, that it has no objection to the employment of
Bobby Nick Ward on any project of the Respondent
Companies within its territorial area and that Local 198's
liability for further accrual of backpay shall cease 5 days
after the giving of such notification. It is further
recommended that Everett Construction and Gilco post
appropriate notices at their offices and at any project on
which they may be engaged in the southern Louisiana area,
and that Local Union No. 198 post appropriate notices at
its business office in Baton Rouge, Louisiana, and at any
other office or membership meeting places in the Opelou-
sas, Louisiana, area.
13 I must assume that the Respondent Companies have abandoned their
initial position , articulated by counsel at the opening of the hearing, to the
effect that Ward was not fired, but that he "quit his employment by
refusing to cross a picket line ." Throughout the hearing , and in their brief,
Respondent Companies admittedly discharged Ward after succumbing to
the Respondent Union's demands that Everett's welders be discharged.
14 Bulletin Company et a!., 181 NLRB No. 95. See also Zoe Chemical
Co., Inc., 160 NLRB 1001.
15 The effective picketing commenced Monday, November 17, and the
Respondents capitulated with their agreement on Wednesday, November
19.
16 As the Respondents' United Gas Pipeline project at Opelousas,
Louisiana, was completed on March 3, 1970, the usual recommended offer
of reinstatement to that project cannot be made.
EVERETT CONSTRUCTION CO.
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. Everett Construction Company, Inc., Gilco Con-
struction Company, and Humble Oil and Refining
Company are employers engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Local Union No. 198, United Association of
Journeymen and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
247
3. By discharging Bobby Nick Ward because of his
nonmembership in the Union, the Respondent Companies
engaged in unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act.
4. By attempting to cause and by causing the Respon-
dent Companies to discriminate against Bobby Nick Ward
because of his nonmembership in the Union, the Respon-
dent Union engaged in unfair labor practices within the
meaning of Section 8(b)(2) and (1)(A) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
[Recommended Order omitted from publication.]