Hoisting and Portable Engineers, Local 4

National Labor Relations Board - Board Decisions

Mar 26, 1971

189 N.L.R.B. 366 (N.L.R.B. 1971)

366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hoisting and Portable Engineers, Local No. 4 and Its
Branches Of The International Union Of Operat-
ing Engineers (The Carlson Corporation) and
Robert E. Messenger
Hoisting and Portable Engineers, Local No. 4 and its
Branches Of The International Union Of Operat-
ing Engineers (Manzi Electrical Corporation) and
Robert E . Messenger . Cases 1-CB-1471 and
1-CB-1486
March 26, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND 'MEMBERS BROWN,
JENKINS, AND KENNEDY
On November 19, 1969, Trial Examiner William F.
Scharnikow issued his Decision in the above-entitled
proceeding, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices
within the meaning of the Act, and recommending
that it cease and desist therefrori and take certain
affirmative action, as set forth in the Trial Examiner's
Decision attached hereto. Thereafter, the General
Counsel and the Respondent filed exceptions to the
Trial Examiner's Decision and briefs in support of
their exceptions. The General Counsel filed an
answering brief to the exceptions and brief of the
Respondent.
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, briefs, and the
entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner as herein modified.
The Respondent's basic policy is to encourage its
members to seek out their own jobs. Accordingly,
most of Respondent's members locate their own jobs.
However, the Respondent operates a job referral
system to assist its members in locating jobs. An
estimated 5 percent of all hirings of Respondent's
members occur through this service. Normally,
contractors make the request for Respondent's
members by either telephoning the Respondent's
office or by contacting a business agent on the
construction site or at his home. Members, on the
other hand, who are seeking employment will either
go to the "loading room" located at Respondent's
office and wait for job openings to be reported or the
members inform one of the business agents that they
are looking for employment. In accordance with the
Respondent's policy of encouraging members to
locate their own jobs it has become accepted
procedure to give to the member who first calls the
attention of the business agent to a possible job
opening the first right to that job.
In the present case the Trial Examiner found that
Messenger was the first to inform Business Agent
DeRosa of a possible job opening at the construction
site of Carlson Corporation. However, when Carlson
subsequently informed DeRosa that it needed to
employ two members of the Respondent Union,
DeRosa refused to refer Messenger. The Trial
Examiner found that Messenger was not referred for
employment, as was standard procedure, because he
had politically opposed the then elected union
officers. This conclusion was supported by statements
Business Agent DeRosa made at the time of his
refusal to refer Messenger.
The Trial Examiner found that Section 8(b)(1)(A)
was violated. He dismissed, however, the 8(b)(2)
allegation in the complaint because Carlson, the
employer, knew nothing of Messenger's claim to the
job nor of the Respondent's refusing him a referral
and therefore, in this nonexclusive hiring arrange-
ment, it could not be said that Respondent's actions
"caused or attempted to cause" Carlson to discrimi-
nate against Messenger. We agree with the Trial
Examiner that factually the alleged violation of
Section 8(b)(2) has not been substantiated.'
The Board held in Chauffeur's Union Local 9232
that a respondent union violated Section 8(b)(1)(A) of
the Act when it, acting as the statutory exclusive
bargaining representative, discriminatorily refused
assistance through its nonexclusive hiring hall ar-
range- ment to certain employees in the represented
bargaining unit because they had opposed reelection
of the Union's officers. The Board reasoned:
It does not follow, however, that a union's
discriminatory refusal to assist certain represented
employees in their effort to find new jobs lacks
coercive impact merely because the employees
might have obtained jobs without the union's
assistance. An employee who knows that he is
reducing his chance for future employment by
supporting a particular condidate is being re-
strained and coerced in the exercise of his Section
7 rights, notwithstanding the fact that the coercion
would be even greater if the discriminating union
were party to an exclusive hiring arrangement.
That case is dispositive of the present proceeding.
The critical circumstances in both cases are parallel.
In each, employees who engaged in Section 7
protected activity of opposing the reelection of
i We need not consider the Trial Examiner's conclusion that a violation 2 Chauffeur's Union Local 923, International Brotherhood of Teamsters,
of Sec 8(b)(2) could be found where there is disparate treatment for
discriminatory reasons in the administration of a nonexclusive hiring hall
arrangement
Chauffeurs, Warehousemen and Helpers of America (Yellow Cab Co),
NLRB No 248
172
189 NLRB No. 52
HOISTING AND PORTABLE ENGINEERS , LOCAL 4
incumbent union officials were denied the use of the
union operated nonexclusive hiring hall because of
their protected activities.3 We believe the Union is
obligated to offer to all of its members the same access
to and use of those services which it provides
members to faciliate their acquisition of employment,
as for example, a hiring hall, and may not treat certain
members disparately because they have engaged in
activities which are protected by the Act.4
Accordingly, as the Respondent in this case has
undertaken to provide the service to all its members of
assisting them in finding employment through a
nonexclusive referral service, to deny Messenger
access to this service because of his intraunion
political activities, and thereby reduce his chance for
future employment, acts as a restraint upon his
exercise of Section 7 rights. The Respondent's
obligation not to discriminate against Messenger
because of his protected activities extends to its
voluntary continuance of this referral service. Once
the Respondent has undertaken the task of helping to
find jobs for its members it has accepted the
correlative duty that it must act in an "even-handed"
manner toward all its members without discrimina-
tion based on the exercise of Section 7 rights. We
therefore affirm the Trial Examiner's finding that
Respondent violated Section 8(b)(1)(A) of the Act.
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 Trial Examiner and hereby orders that
the Respondent, Hoisting and Portable Engineers,
Local No. 4 and its Branches of the International
Union of Operating Engineers, Boston, Massachu-
sets, its officers, agents, and representatives, shall take
the action set forth in the Trial Examiner's Recom-
mended Order.5
3 It is well established that active opposition to the reelection of an
incumbent union official is protected activity within the meaning of Sec 7
of the Act Falstaff Brewing Corporation 128 NLRB 294
4 Respondent Union argues that without evidence of a contract,
understanding , or commitment with Carlson which obligates the statutory
bargaining representative to refer prospective employees , the refusal to do
so, no matter the reason , is not a violation of the Act It relies on several
Board decisions to support its contentions including United Construction
Company and United Brotherhood of Carpenters and Joiners of America,
Local No 171, 169 NLRB 1, and Hoisting and Portable Engineers, Local
302 (West Coast Steel Works), 144 NLRB 1449 These cases are not
applicable to the present case In Chauffeur's Union Local 923 at In 3, the
Board stated that in the cases cited by the respondent union the General
Counsel had only alleged a violation of Sec 8 (b)(I)(A) as the derivative of
conduct alleged to be an 8(b)(2) violation These cases do not consider the
question of whether disparate treatment for discriminatory reasons is
independently violative of Sec 8(b)(1)(A) The Board in Chauffeur's Union
Local 923 found, as we find here , that disparate treatment of job referrals
from a nonexclusive hiring hall because of discriminatory reasons is an
independent violation of Sec 8 (b)(1)(A)
5 In fn 9 of the Trial Examiner ' s Decision , substitute "20" for "10"
days
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
367
WILLIAM F. SCHARNIKOW, Trial Examiner: The com-
plaint issued and served by the Regional Director on June
9, 19,¢9, in the above-consolidated cases alleges , but the
answer of the Respondent (Hoisting and Portable Engi-
neers, Local No. 4 and its Branches of the International
Union of Operating Engineers) denies, that the Respondent
committed unfair labor practices affecting commerce
within the meaning of Sections 8(b)(1)(A) and (2) and 2(6)
and (7) of the National Labor Relations Act, as amended,
29 U.S.C. Sec. 151, et seq., herein called the Act. The basic
charges were filed by Robert E. Messenger , an individual
claiming to be affected by the alleged unfair labor practices,
in Case 1-CB-1471 'on February 6, 1969, and in Case
I-CB-1486 on April 23, 1969. In each instance the charges
were duly served by the Regional Director on the
Respondent the following day.
Pursuant to notice , a hearing was held in Boston,
Massachusetts, on July 7, 8, 9, and 10, 1969, before me, the
Trial Examiner duly designated by the Chief Trial
Examiner. The General Counsel and the Respondent
appeared by their respective counsel and were afforded full
opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on -the issues.
Since the close of the hearing , I have received and
considered briefs from the General Counsel and counsel for
the Respondent
Upon the entire record in the case and from my
observation of the witnesses , I make the following:
FINDINGS OF FACT AND CONCLUSIONS
I. THE ISSUES
The complaint, alleges, the Respondent 's answer admits,
and I find , that the Respondent is a labor organization
within the meaning of the Act, and that the various
employers with whom the Respondent has dealt, including
The Carlson Corporation and Manzi Electrical Corpora-
tion are employers engaged in the building and construc-
tion industry and in commerce within the meaning of the
Act.
The issued presented and litigated at the hearing is
whether , as the complaint alleges but the Respondent's
answer denies:
1. The Respondent "has created and maintained a
hiring hall or referral system as a method of supplying
member-applicants for employment," as a result of which
certain employers have "relied upon , utilized , and other-
wise subjected themselves to Respondent 's hiring hall as the
exclusive source of [securing ] applicants for employment
... [as] operators . . . within the territorial jurisdiction of
Respondent."
2. Respondent, because of Robert E. Messenger's
"history and continuing nature of his intra-union activi-
ties" as a member of Respondent and "contrary to [its]
usual [established ] practice procedures and preferences" in
connection with the operation of its "hiring hall or referral
system," failed and refused to refer Messenger for
A
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment by Carlson Corporation on January 19, 1969,
and for employment by Manzi Electrical Corporation on
February 25 and March 10, 1969.
3. Respondent, by thus failing and refusing to provide
Messenger with such referrals because of his "intra-union
activities" in spite of their protection by Section 7 of the
Act, "has caused or attempted to cause" the two aforesaid
employers "to fail to hire Messenger through its inherently
discriminatory administration, method of selection and
operation of the hiring hall or referral system" and has
thereby: (a) restrained and coerced Messenger in the
exercise of rights guaranteed by Section 7 of the Act and
committed unfair labor practices within the meaning of
Section 8(b)(1)(A); and (b) caused or attempted to cause
the two employers to discriminate against Messenger in
violation of Section 8(a)(3) of the Act, thus itself
committing unfair labor practices within the meaning of
Section 8(b)(2) of the Act.
II THE UNFAIR LABOR PRACTICES
A. The Respondent and its Membership, Officers,
Agents, and Operations, Including its "Referrals" of
Members for Employment
The Respondent (including its "Branches") is an
approximately 4000-member local union with its office in
Roslindale (a section of Boston) and claims craft jurisdic-
tion over operating engineers engaged in building and
construction work in the eastern portion of New England
from the Canadian border to the southern boundary of
Massachusetts. Approximately 2000 of its members are
"straight Local 4 members," i.e., full members licensed as
"engineers" by the Commonwealth of Massachusetts and
thus accredited as fully qualified to operate all types of
construction equipment "Branch" members are those with
lesser-demonstrated or restricted competency. About 500
of them are apprentices or "oilers" in Branch 4A, who after
4 years, the attainment of an engineer's license, and the
satisfactory service of a probationary period on 2-man
equipment, are eligible for election by the general
membership to "straight 4 membership." The remaining
members (approximately 1,500 in number) are classified in
separate Branches for hoisting engineers on heavy or
highway construction, for operators of specific types of
certain one-man equipment, for house engineers, for
mechanics, and for field engineers.
The Respondent's president and other general officers
are elected by the full membership, as is also its business
manager who is its chief executive officer in charge of its
overall, day-to-day operations and all its personnel
including the business agents. The business manager's term
had been 1 year until an amendment of the International's
constitution in 1965 increased it to 3 years. Walter Ryan, a
former business agent since 1950, was the Respondent's
elected business manager in 1961 and 1962, and following a
defeat in the 1963 election has again been the Respondent's
elected business manager since 1964. His current 3-year
term will expire in 1971.
In accordance with the amendments of the Internation-
al's constitution in 1965, Ryan, as business manager, has
appointed the Respondent's six business agents, each of
whom is in direct charge of the Respondent's affairs under
the supervision of the business manager , in a separate
"territory" of the Respondent, although before 1965 they
had also been elected by the membership. Despite the
spread and area of the business agents' respective territories
(e.g., one embraces almost the entire State of Maine and
another the State of New Hampshire and northern
Massachusetts), all the business agents are based in the
Respondent's office in Roslindale. Except for the Maine
business agent who appears infrequently, each of the
business agents picks up his paycheck on Wednesdays and
spends only a few hours a week on a different morning at
the Roslindale office where, in addition to the space used
by the clerical force, there is a day room or "loafing room"
provided for members who are seeking work. In the
absence of a business agent in his territory, telephone calls
received in the Roslindale office for him from employers or
from members are noted in a telephone log book and the
business agent is informed of them when he telephones in to
the office. Otherwise, the business agent's contacts with
employers and members are made directly in the field
either personally on the business agent's rounds of
construction sites or by telephone, including telephone calls
to and from the business agent at his home.
According to the complaint and the General Counsel's
evidence, only two of the Respondent's business agents
(Charles DeRosa and Joseph Grande) and Business
Manager Ryan were directly involved in the Respondent's
unfair labor practices in allegedly failing and refusing to
give member Robert Messenger a "referral" to jobs at
construction sites in Bedford, Massachusetts, and North
Andover, Massachusetts. Business Agent DeRosa's territo-
ry in southern Massachusetts included the Bedford
construction site and Business Agent Grande's territory of
New Hampshire and northern Massachusetts included the
North Andover construction site.
The Respondent, its business manager , and its business
agents deal with approximately 500 employers about
matters affecting operating engineers . With only about 350
of these employers does the Respondent have a contract or
agreement of any sort. With some of them, it has limited
agreements covering only the employers' payment of fringe
benefits such as payments to a health, welfare, and pension
fund administered by the Old Colony Trust Company of
Boston. With the remaining 350 employers (whose number
is not disclosed), the Respondent does have full contracts
generally covering the terms and conditions of their
employment of operating engineers . But it should be noted
that this category of fully contracting employers does not
include, and did not include, either the Carlson Corpora-
tion or Manzi Electrical Corporation, the employers whom
the complaint alleges were involved by the Respondent in
the few specified incidents of unfair labor practices based
upon their hire of engineers other than Robert Messenger,
the charging part, at the Bedford site on January 19, 1969,
or the North Andover site in February and March 1969.
For this reason, I rejected the General Counsel's repeated
offers in evidence of the Respondent' s general contract
with other employers. Furthermore, it became apparent
during the hearing that this type of general contract had no
such broad significance with respect to the Respondent's
HOISTING AND PORTABLE ENGINEERS , LOCAL 4 369
practice of referring its members for employment on an
employer's request, as would otherwise warrant its
admission in evidence . For, as the General Counsel
conceded throughout the hearing , neither under the
proffered contract nor under any agreement with any
employer has the employer agreed to secure its engineers
through the Respondent nor has the Respondent agreed to
refer its members to the employer . Indeed, as the
allegations of the complaint also make clear ,' the General
Counsel 's unfair labor practice theory is based , not on any
formal contractual obligation , but solely on an actual
"hiring hall or referral system " which the Respondent has
created and which employers voluntarily rely upon, use,
and "subject themselves to" in securing their operating
engineers.
The Respondent 's business agents spend most of their
time in their respective territories , visiting and observing
conditions on jobsites and dealing with employers,
stewards , and their members. As Business Manager Ryan
testified , their broad responsibility is "to protect our
jurisdiction ." Obviously , in view of the extent of their
territories and the Respondent 's large membership , they are
busy men. Their principal duties are to see to it that
contracting employers comply With the terms of their
contracts with the Respondent , and to persuade noncon-
tracting employers of members of the Respondent to meet
acceptable "area standards" with respect to wage rates and
fringe benefits including health and welfare fund payments
as set forth in the Respondent 's contract with other
employers . Passing references in the testimony also indicate
the business agents' involvement in the usual variety of
other activities of a union representative in such matters as
grievances , organizational activities , picket lines , strikes,
and complaints by employers against the Respondent's
membersin their employ . Finally, in addition to all this, the
business agents when asked by employers-whether under
contract with the Respondent or not-"refer" members of
the Respondent for employment.
This is the Respondent's "referral" practice which the
General Counsel would have the Board find to be a "hiring
hall or referral system" which in a discriminatory
application to member Robert Messenger deprived Mes-
senger of fobs with the Carlson Corporation on the Bedford
site on January 19, 1969 , and with the Manzi Electrical
Corporation on the North Andover site in February and
March 1969 . To provide an understanding and permit an
evaluation of this contention, the parties presented
evidence concerning the hire and employment of operating
engineers in the Respondent's claimed territorial jurisdic-
tion and the nature , manner, and extent of the business
agents' "referral" practice . As to these matters, the evidence
is consistent and therefore there is no dispute.
By its nature , the work of an operating engineer in the
construction industry is transient and intermittent . In order
to secure maximum and reasonably continuous employ-
ment, he must get a succession of jobs with different
employers at different construction sites as the work done
by operating engineers at each site is completed. The
continuous period for which an engineer may be employed
by a contractor varies in length from "broken time", i.e., a
day or two days (in which case the contractor often requires
a man on short notice), to a period of months.
So far as the Respondent is concerned , the contractors
exercise complete freedom in hiring whomever they want
and, although for their own reasons they may ask the
Respondent to refer applicants , they are not required by
any agreement with the Respondent either to ask for
referrals or, if they do so, to accept applicants referred by
the Respondent Furthermore , in an estimated 95 percent
of all hirings of operating engineers , the Respondent's
members find and secure their own jobs directly from the
contractors without any referral by the Respondent. They
do this usually by riding around and locating construction
sites, by watching the progress of work on these sites, by
securing information as to job possibilities from other
members of the Respondent who may already be working
on particular projects, and then by visiting the sites and
applying to the contractors for jobs when they see that
equipment requiring engineers is being used or when, from
their experience , they know that in normal course, such
equipment is about to be used . In some instances while
working for one contractor on a site , they arrange for a
transfer to a job with another contractor using equipment
on the same site and thus prolong their employment there.
Finally, some operating engineers are fortunate in that, as
"regulars", they have been able to establish a personal
relationship with particular contractors whereby they are
employed by these contractors for the longerjobs at various
sites and are later repeatedly recalled by these contractors
on subsequent building projects . But even these "regulars,"
like operating engineers generally, have substantial inter-
vening periods of unemployment which they must attempt
to fill in by seeking employment from other contractors at
other sites.
When , in the estimated 5 percent of all hirings of
Respondent 's members , the contractors ask the Respon-
dent to send them men , the requests are made by the
contractors ordinarily by telephone calls to the Respon-
dent's office , whether to the business agent for the territory
or to anyone else in the office . But in some instances, the
requests are made to the business agent outside the office
either by telephoning him at his home or by speaking to him
at the construction sites. If a request for an immediate
referral for "broken time" is telephoned to the office, the
business manager , any business agent who happens to be in
the office , or even the office girl , may refer a member from
the "loafing room" if any are there at the time and are
willing to take the job. In other cases when the business
agent covering the territory is not in the office, the message
is taken for him , entered in a telephone log book (which
contains other types of messages as well), and given to him
when he makes one of his frequent calls to the office.
Unless the contractor has specified the member it wants
and he is available, the business agent then decides which
member he will refer to each job according to the
qualifications required for the job (straight 4 members are
presumably qualified and given preference over Branch
members) from members who are either in the " loafing
room" at the time or who have recently informed the
business agent (ordinarily by telephone calls to him at his
1 See sec 1, above
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
home) that they are out of work and looking for a job.
General factors which play a role in his selection from
known available and qualified members are the distances of
their homes from the jobsite , their current periods of
unemployment , and their ages. But, in keeping with the
Respondent 's policy of encouraging its members to find
their own jobs and thus in effect (as Business Manager
Ryan testified) to act as additional individual "business
agents" for the Respondent in obtaining the maximum
employment of its members, the business agents give
preference in their referrals first to any member who has
found equipment in operation , appeared at the site (or as
the witnesses put it, "was on the job") and has notified the
territorial business agent that he had in fact been "on the
job"; and then secondly to a member who, although he has
not been "on the job ," has notified the business agent that
he believes there is or will be a job open and that he claims
it in the event there should be a referral . In determining
priorities in such possibly competing claims, Business
Agent DeRosa testified that it is his practice to visit the
jobsite, check the existence of the job, and ask any member
of the Respondent working on another job at the site
(preferably one who is serving as his steward) whether any
of their fellow members have been "on the job" and, if so,
when they had been there. According to DeRosa , he relies
upon this information , although he is not certain what he
would do if , for example , two members had already
informed him that they had been "on the job" although the
steward tells him that he had seen only one of them there.
A master list of members is kept at the office and is
available to the business agents. When there is occasion, the
Respondent may secure from the trustee of the health and
welfare fund the names of members who are currently
employed and on whose behalf employers are making
payments to the fund . But neither the Respondent at its
office nor the business agents in the field keep any records
of the employment of its members, the names of those
currently unemployed , the dates their last employment
terminated , any out-of-work registry , or any record of the
referrals actually made by it and its business agents. As a
result, when requested for a referral, a business agent makes
his choice of the member to be referred solely on the basis
of information which he has secured on his rounds of the
construction sites or in telephone calls from members
telling him they are out of work and perhaps asking him to
keep them in mind for specific jobs they have visited or
believe will open up . This information upon which he bases
his referrals is for the most part simply kept "in his head"
although he sometimes makes notes which he keeps only so
long as he thinks he may have use for them . Although the
business agents are responsible to, and discuss their work
with , the business manager, they file no written reports nor
do they discuss the referrals made by them, except possibly
in particular situations when problems arise . According to
the substance of Business Manager Ryan's testimony, the
Respondent 's justification for this informal manner of
handling referrals rather than through a formularized,
centralized , or dispersed hiring hall system with detailed
records and possibly an out-of -work registry , is to be
found in the comparatively few referrals handled , the fact
that they must be handled expeditiously , the efficiency and
fairness of their being handled for points remote from the
Respondent's office in which only local segments of the
Respondent's membership would be interested , and the
consequent impracticability as well as the physical
impossibility of setting up a more formal , elaborate system
of referrals in the Respondent 's Roshndale office and
perhaps even at other points as well.
B. Robert Messenger 's Intraunron Activities
Robert Messenger , the charging party who claims that he
has been refused job referrals by the Respondent because
of his intraunion activities , has been a member of the
Respondent for 28 years and is a straight Local 4 member.
In every year since 1958 , he has run for umon office (often
for several offices on a single ballot ), has supported only
two candidates who were successful (Connie Ryan as
president and Bob Delaney as business manager), has been
elected only to two offices (auditor from 1962 to 1965 and
trustee in 1962 ) and in other years has been defeated in his
candidacies for president (in 1961 , 1962 and 1965), for vice
president (in 1959) and for treasurer (in 1963 and 1968). In
several of these elections , Messenger was defeated by the
Respondent's current president , Rocco Alberto, for that
office, i.e., in 1962 and 1965. His unsuccessful candidacies
have had some, but not nearly sufficient support, from
other members some of whom (including Warren Smith)
also ran for office and distributed common campaign
material among the membership as a "Committee To
Promote a Better Local 4" and as a "Bob Messenger for
President Committee."
Throughout his campaigns for office , and in other related
activities , Messenger has been persistently and sharply
critical of the conduct of the Respondent 's affairs by the
incumbent officers . In appearances at membership meet-
ings, and in his mimeographed campaign material distribut-
ed among the Respondent 's 4,000 members, especially in
connection with the 1963 and 1965 elections, he accused the
officers of such improprieties as excessive spending , failing
to protect the Respondent's jurisdiction against encroach-
ment by other unions, improperly refusing him access as
auditor to the Respondent's records in 1963 , irregularities
in election procedures in 1963, and failing to provide a fair
distribution of jobs among the members . Some of these
accusations he brought to the attention of the International
and the United States Department of Labor, but his
appeals to them for correction of what he asserted were
improper practices were rejected. In 1963, he accused
President Rocco Alberto of a conflict in interest in acting as
the Respondent 's president and at the same time receiving a
salary of $5600 from the Commonwealth of Massachusetts
as its Labor Commissioner . Alberto thereupon filed charges
against him for engaging "in a malicious campaign to
wrong fellow members and officers," and denied that he
had received any compensation from the Commonwealth
except a fee of $ 25 for council meetings which occurred less
frequently than once a week . Messenger answered these
charges with an accusation that Alberto was "lying." The
union charges against Messenger were not actually
processed , however, and in 1967 Messenger and five other
members (including Warren Smith ) filed a petition with the
Superior Court of the Commonwealth of Massachusetts
asking for a declaratory judgment against Alberto for a
HOISTING AND PORTABLE ENGINEERS, LOCAL 4
"conflict in interest" in holding both his office as
Respondent's president and his office as the Common-
wealth's Labor Commissioner, but the Court sustained a
demurrer and dismissed the petition. In 1966 and again in
1968 Messenger turned to the Board and filed charges
against the Respondent in Cases 1-CB-1125 and
1-CB-1424, asserting the Respondent's commission of
unfair labor practices within the meaning of Section
8(b)(1)(A). But in each case the Regional Director after
investigation refused to issue a complaint and dismissed the
charges. About the time of the Regional Director's
dismissal of the second of these unfair labor practice
charges which Messenger had filed, Messenger also
handled an unsuccessful appeal to the General Counsel
from the Regional Director's dismissal of unfair labor
practice charges filed against the Respondent by another of
the Respondent's members (Charles Samara) in Case
1-CB-1436.
Despite these persistent attacks on the Respondent's
officers since 1958, it does not appear from the present
record that prior to 1969 there was any background of
reprisal or discrimination against Messenger by the
Respondent's agents in referrals or in any other respect.
The record does not disclose the nature or the substance of
Messenger's unfair labor practice charges in 1966 and 1968,
but in any event they were deemed by the Regional
Director to be insufficient for the issuance of any complaint
against the Respondent. Furthermore, although Messenger
testified at one point that he had "many times" unsuccess-
fully asked Business Agent DeRosa for referrals, he also
testified that "My usual practice is to inform him [merely]
that I am unemployed," that in only a few instances had he
spoken to DeRosa about specific jobs (and even then it did
not appear from his testimony that they were jobs he had
"found" and claimed), and that although at times he had
appeared at the "loafing room" looking for work, he had
not done so since February 1968. Finally, in summarizing
his general experience in the 3 years preceding 1969, he
testified, "I have been pretty fortunate the last couple of
years. The jobs I have been getting have been running
longer durations but start out as short-term jobs. In other
words, the jobs were jobs that I got on my own. When I
took the job I wasn't aware that they would last, certainly,
more than a month." Certainly, this testimony of Messen-
ger is much too vague and general to provide the basis for a
conclusion that there was any discrimination against him in
withholding referrals before 1969.
On the contrary, according to both Messenger's testimo-
ny and that of Business Agents Grande and DeRosa, in the
few instances before 1969 in which the Respondent's
business agents dealt with Messenger, it appears that the
business agents treated him fairly and supported him in his
attempts to get and keep jobs. Thus in 1966, Business Agent
Grande supported Messenger's and fellow member Smith's
claims to, and got them pay from Carlson Construction
Company for, the operation of heaters which they had
found running unattended at night on a Carlson job in
Malden. In the fall of 1966, Business Agent DeRosa
persuaded Score, a subcontractor on a Peabody job, to
reinstate Messenger after he had been fired as incompetent
on that job, although when DeRosa referred Messenger to
371
Score on a later job in East Boston, Score refused the hire
Messenger again and DeRosa was then unable to do
anything about it. In another instance at or about the same
time, when Messenger was laid off on a generator job for
Preload Construction Co. in Woburn and claimed a job
operating a small electric pump on the same site, DeRosa
asked the contractor to give Messenger the pump job and,
when the contractor refused to put an engineer on such a
small pump, DeRosa protested his refusal through the
International but without success. Finally, in one other
instance, when the superintendent of Jefferson Construc-
tion Company told DeRosa that he wanted Messenger for a
generator job on the same East Boston site where he had
worked for Score, but that he had been unable to reach
Messenger, DeRosa held off on the referral of another
member from the "loafing room" so that the contractor had
more time to reach Messenger and give him the job the next
day.
The present cases, however, are based on incidents which
occurred in 1969 and thus subsequent to the Regional
Director's refusal to issue complaints on Messenger's 1966
and 1968 unfair labor practice charges. For, in the present
cases, Messenger has based his unfair labor practice
charges, and the Regional Director issued the instant
complaint, on allegations that in three instances in January,
February, and March 1969, the Respondent through its
business manager and business agents has discriminatorily
failed and refused to issue job referrals to Messenger
because of his long continuing "intraunion activities"
against the Respondent's officers, and that, by thus
depraving him of the jobs to which he should have been
referred in 1969, Respondent has committed unfair labor
practices within the meaning of Section 8(b)(1)(A) and (2)
of the Act.
C. Messenger's Unsuccessful Attempt to Secure
Employment by Carlson Conntruction Company on or
about January 19, 1969
The first incident in which the complaint alleges that the
Respondent improperly withheld a referral from Messenger
occurred on January 19, 1969 in connection with the filling
of a second or third shift job operating a portable heater for
the Carlson Construction Company at its Sunbeam
Vacuum plant construction site in Bedford, Massachusetts.
Such heaters are operated by engineers in cold weather to
prevent freezing during concrete pouring operations,
sometimes only on the first or day shift from 8 a.m. to 4
p.m., but also, when thought necessary, on a second shift
from 4 p.m. to midnight and a third shift from midmght to 8
a.m. as well. James Oldford, Carlson's superintendent,
started operating the heaters on the Bedford job on the day
shift on Wednesday, January 15 and then, on a decision
reached by him only on the following Wednesday, January
22, also on the second and third shifts beginning Friday,
January 24. George Houston, a member of the Respondent,
had been working continuously for Carlson on the Bedford
job as a forklift operator since September 1968, having been
originally referred to Carlson by Business Agent Charles
DeRosa from the Respondent's "loafing room." The
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forklift operation ended on January 15, 1969, and, at
Houston's request, Houston was immediately assigned by
Superintendent Oldford to operating the heater on the first
shift. Thereafter, on a request made by Superintendent
Oldford for additional referrals on Thursday, January 23,
Business Agent DeRosa referred members Warren Smith
and Joseph Mara, who had appeared on the job and spoken
with Houston on Monday, January 20. On Friday, January
24, Smith and Mara began operating the heaters for
Carlson on the second and third shifts, respectively.
Messenger 's claim to either the second or third shift
Bedford heater job and a right to a referral thereto from
Business Agent DeRosa is based on the fact that in a joint
search for jobs, as they told DeRosa on Sunday, January
19, he and Smith (who had had to a somewhat lesser extent
also openly opposed the Respondent's "administration")
had together previously visited the Bedford site about 8
p.m. on Friday (January 17), had found a heater operating
without an attendant, but had not been able to locate either
an operator, the superintendent, a watchman, or other
representative of Carlson. They thereupon agreed to make
separate telephone calls to Business Agent DeRosa in
which each would request a referral not only for himself but
for the other as well. But neither was able to reach DeRosa
that night or on Saturday.
On Sunday night, January 19, however, first Messenger
and then Smith spoke separately by telephone to DeRosa
who answered their calls at his home. Each of them told
DeRosa that there were heaters running on the Bedford job
and DeRosa said that he did not know that they were in
operation on the second or third shifts. From the testimony
of the three men, it is clear that Messenger claimed one of
the jobs for himself that Smith claimed one of the jobs too,
and that Smith told DeRosa he had been at the site on
Friday night and had seen the heaters in operation. As to
other elements of these telephone conversations, Messen-
ger's and Smith's testimony is in conflict with that of
DeRosa.
Messenger and Smith each testified that in his separate
conversation with DeRosa he told DeRosa that the two of
them had visited the site together that Friday night, that
they had both seen the heaters operating, and that on this
basis he was making a claim to one of the night jobs for
himself and to the other job for his friend. Messenger
further testified that in the conversation with him, DeRosa
thereupon said that if there was a job and Smith wanted it,
he could have it, but that DeRosa would "give [Messenger]
nothing." Smith, too, testified that in his conversation,
DeRosa had said, "If there is a job there, I will take care of
you. [But] I wouldn't give that bastard [Messenger] a job if
he was the last one on the face of the earth."
DeRosa testified that only Smith told him he had been on
the job on Friday night and had seen the heaters operating,
that Messenger merely said he thought that the heaters on
the Bedford job were about to open up and was vague as to
the location of the site, that neither Messenger nor Smith
said that they had been on the site together or for that
matter even referred at all to the other, that he told
Messenger that so far as he knew there was only a day shift
operation of the heaters on the Bedford job, but that he
would check it and Messenger could also see the
superintendent about other shifts and have a job on another
shift if it were available, and that he told Smith (who had
said he had actually been on the job) that if an extra shift
were available he could have the job. Finally, DeRosa
denied that he told either Messenger or Smith that,
although he would refer Smith, he would "never put
Messenger on that job."
There is no dispute as to what happened after these
telephone conversations on the 19th. Messenger did not
visit the site again until Friday, January 24 after Smith and
Mara had begun operating the heaters on the second and
third shifts, respectively. But, in the meantime , on Monday,
January 20 Smith and Mara had gone to the Bedford job
and asked Steward Houston about operating the heaters on
the extra shifts. Houston did not then know that the heaters
would later be operated on the second and third shifts.
Smith told Houston that Messenger had been on the job
with him the previous Friday. Houston, however, had not
seen Messenger.
On Tuesday or Wednesday, January 21 or 22, Superin-
tendent Oldford told Houston he intended to operate the
heaters on the second and third shift beginning on Friday
January 24 and that Houston should make arrangements to
get men through Business Agent DeRosa.
On Thursday, January 23, on Houston's call, DeRosa
came to the job and saw both Houston and Superintendent
Oldford who told DeRosa that Carlson would need men on
the second and third shifts on Friday, January 24. Houston
told DeRosa that Mara and Smith had been on the jobsite
but did not tell DeRosa that Smith had said Messenger had
also been there with him
On the same day, Thursday, January 23, DeRosa
telephoned referrals to Mara, who had been on a one-day
job, and also to Smith.
On Friday, January 24, Houston worked the first shift as
usual, and Smith and Mara started work on the second and
third shifts respectively. Messenger appeared at the end of
the second shift, helped Smith, and then left the job with
Smith when Mara relieved Smith at the beginning of the
third shift
The critical, disputed element with respect to DeRosa's
failure or refusal to refer Messenger for one of the Carlson
heater jobs is, of course, presented in the conflict of the
testimony concerning DeRosa's telephone conversations
with Messenger and Smith on the evening of January 19
which has already been set forth In appraising this conflict,
I have considered not only the direct testimony of the three
witnesses as to the substance of these conversations but also
the absence in the present record of any indication of a
previous disposition by the Respondent's business agents to
discriminate against Messenger in referrals because of his
"intraunion activities." I have also considered DeRosa's
protestations during his testimony that although he knew of
these activities he had no feelings against Messenger, and
the evidence that DeRosa had in fact helped Messenger in a
number of previous incidents which have already been
noted. But none of this background (consistent though it is
with DeRosa's version of the conversations) rules out the
possibility that in the January 1969 conversations, DeRosa
then rejected Messenger's bid for a Carlson referral (to
which he was apparently entitled in accordance with the
HOISTING AND PORTABLE ENGINEERS , LOCAL 4
Respondent's practice) because of his activity against the
Respondent and its officers, as both Messenger's and
particularly Smith's versions of their conversations would
clearly indicate. Moreover, we have been given not only
Messenger's but also Smith's consistent contradiction of
DeRosa's testimony and, on a weighing of the testimony of
the three witnesses in this particular conflict, I credit the
combined effect of the testimony of Messenger and Smith
rather than the testimony of DeRosa. Accordingly, I find
that in their January 19 conversations with DeRosa, both
Messenger and Smith told DeRosa that they had visited the
Bedford site together that Friday night and found heaters
in operation; that each claimed one of the extra shift jobs
for himself and the other for his friend; and that DeRosa
told each of them that although he would refer Smith, he
would not refer Messenger, stating in his conversation with
Smith that "I wouldn't give that bastard [Messenger] ajob
if he was the last one on the face of the earth."
D. Messenger's Unsuccessful Attempts to Secure
Employment by Manzi Electrical Corporation on or
about February 25 and March 10, 1969
The remaining two incidents in which the complaint
alleges that the Respondent improperly withheld referrals
from Messenger occurred in connection with the filling of
two forklift operator jobs on or about February 25 and
March 10, 1969, by Manzi Electrical Corporation on
equipment which Manzi rented without an operator from
Logan Equipment Company and began using for the first
time as an electrical subcontractor on a Western Electric
Company job at North Andover, Massachusetts. Davidson
Construction Company was the general contractor on this
job and Davidson and a number of the subcontractors also
working there had been employing various members of the
Respondent operating other equipment on the jobsite.
Among these members of the Respondent were Raymond
Paul (who had worked for Davidson on the site for 7 or 8
months but had been laid off 3 weeks earlier) and another
engineer named O'Brien and Joseph Ginuisz (both of
whom had been working on bucket lifts on the site for a
subcontractor named Marrone).
At first, Logan Equipment Company delivered only one
forklift to Manzi at the jobsite on or about February 25.
Manzi had never before used such equipment in its
electrical work, had therefore never previously employed
operating engineers, and had no contract with the
Respondent. Before the arrival of this first forklift and at
the suggestion of Davison (the general contractor), Peter
Maciariello, Manzi's superintendent, telephoned the Res-
pondent and, speaking with Business Agent Joseph
Grande, asked him to supply an operator. Member
Raymond Paul had already notified Grande he had been
laid off and Grande, knowing that Paul had already worked
on the North Andover site, referred him to the Manzi job.
As a result, Paul was hired by Manzi to operate the first
forklift supplied by Logan Equipment Company.
After Superintendent Maciariello of Manzi had called
Business Agent Grande but before Paul reported for work,
373
Messenger visited Macianello at the North Andover site on
or about February 25 and asked for work. Maciariello said
he expected a "spot" to open up and when Messenger asked
Maciariello to "put his name down," Maciariello asked
Messenger was he a member of the Respondent. Messenger
said he was, but when Macianello asked if it were all right
to check with the Union, Messenger said, "If I rely on the
Union I won't get the job." Messenger had not previously
gotten in touch with the Respondent about the Manzi job
and did not do so at this time . Nor does it appear from the
record that the Respondent (and particularly Business
Agent Grande) ever knew from Messenger or Maciariello
that Messenger had sought work from Manzi on or about
February 25.
Raymond Paul continued to operate the first forklift
obtained by Manzi and Manzi, through Macianello,
ordered another forklift from Logan Equipment Company
which was delivered on or about March 10. In the
meantime Macianello put in a telephone call to the
Respondent for another operator. Messenger appeared
again at the site on March 10 and was there when the
second forklift arrived on that day, but was told by
Maciariello that he had already called the Union for an
operator.2 Messenger then put through a telephone call
from the jobsite to Business Manager Walter Ryan at the
Respondent's office, and being told that Ryan was in
conference, left his name and telephone number for Ryan
to call him.
In the meantime, it appears from a composite of the
credible evidence of members Paul and Ginuisz, as well as
of Business Agent Grande, (and I therefore find) that there
had been a shift in the jobs of operating engineers
employed by other subcontractors on the site ; that, as a
result of these shifts, Supervisor Dean, who was in charge of
the outside work for Manzi on the site, had been asked and
had agreed to Ginuisz' taking the job on the second Manzi
forklift; and that this information was given to Business
Agent Grande by O'Brien who was acting as the
Respondent's steward on the jobsite. In brief, although the
details of the testimony became quite complicated before it
was finally made clear, Ginuisz' work on a bucket lift for
another subcontractor (Marrone) was "phasing out" and he
had asked for and secured Dean's commitment to put him
on the second Manzi forklift.
Business Manager Ryan did not return Messenger's
telephone call from the jobsite but Business Agent Grande
not only received Messenger's inquiry about the Manzi
forklift job but, in a routine call from steward O'Brien on
another matter, was told by O'Brien that Ginuisz had been
transferred to Manzi. Accordingly, Grande then tele-
phoned Messenger and told Messenger that the Manzi
forkliftjob had already been filled by Ginuisz.
E. Conclusions
The questions to be decided in the present case are (1)
whether Messenger's "intraunion activities" were
"concerted activities" protected by Section 7 of the Act;
and (2) whether the Respondent withheld "referrals" from
2 I credit Macianello's testimony to this effect Messenger testified that
Maciariello did not tell him he had already put in a call to the Union
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Messenger to the Carlson and Manzi jobs in January,
February, and March 1969 because of these "intraunion
activities" and thereby committed unfair labor practices
within the meaning of Section 8(b)(1)(A) or (2) of the Act.
Since 1958, as I have found, Messenger repeatedly ran for
union office against the incumbent officers in each election,
criticized the conduct of the incumbents in mimeographed
material which he distributed among the Respondent's
members, accused the officers of improprieties in election
procedures and in their general conduct of the union's
affairs, filed suit against the president of the Respondent in
an apparent attempt to oust him from office, filed charges
against the officers with the International and the United
States Department of Labor, and filed unfair labor practice
charges against the Respondent with the Board. Regardless
of their justification or basis, these "intraunion activities" in
opposition to the Respondent's officers, constituted
attempts by Messenger acting in concert with other
dissident members, to control by legal means and
procedures the conduct of the union which they had chosen
to be their bargaining representative in dealing with their
current and prospective employers. In agreement with the
General Counsel and contrary to the Respondent's
contention, I hold that Messenger's activities were
"concerted activities" within the meaning and protection of
Section 7 of the Act.3
A more complicated problem is presented by the question
of whether the Respondent committed unfair labor
practices within the meaning of Section 8(b)(1)(A) or (2) of
the Act by withholding referrals from Messenger to the
Carlson and Manzi jobs because of his "intraunion
activities." For, even assuming for the moment the
suggested discrimination against Messenger in withholding
these job referrals, it would not have been a violation of the
Act unless, on some basis or other, the Respondent was
obligated to refer known, available job applicants on a
nondiscriminatory basis.4 But the Respondent had no
express "exclusive hiring hall" contract with any employer,
i.e. a contract in which the Respondent undertook to refer
all operating engineers needed by the employer and the
employer, in turn, agreed to hire only those engineers
referred to it by the Respondent. And the Board has
repeatedly held that, in the absence of any such express
contract or an equivalent oral agreement or an apparent
understanding between a union and an employer implied
from an existing continuous complementary practice of
referral and exclusive hire, a union is ordinarily not
obligated to refer job applicants on an employer's requests,
and its refusal to do so in particular instances-whatever its
reasons-is therefore not an unfair labor practice.5
3 As to the protection of a dissident union member's right to oppose
union officers generally, including participation in Congressional and
Board proceedings, see Local 138, Operating Engineers v N LR B, 321
F 2d 130, 136 (C A 2), enfg in material part 139 NLRB 633 As to the
protection of a union member 's opposition to the reelection of incumbent
officers, see Chauffeur's Union Local 923, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, 172 NLRB
No 248 As to the protection under Section 7 of a union member's filing
unfair labor practice charges against his union , see N L R B v Marine &
Shipbuilding Workers, 391 U. S 418, reversing 379 F 2d 702 (C A 3), and
enfg 159 NLRB 1065, N L R B v Cannery Workers etc, 396 F 2d 955
(C.A 9), enfg 159 NLRB 843, cert denied 393 U S 1025, N L R B v
Millwrights and Machinery Erectors, Local Union No 1510, etc, 379 F.2d
To avoid the possible adverse impact of these decisions in
the present case, the General Counsel makes two general
arguments, each advancing a somewhat different ground
for holding that the Respondent was obliged under its
established referral practice to refer its members for jobs
whenever requested by an employer and to make these
referrals without discrimination against any member like
Messenger because of activity protected by the Act. The
General Counsel's first argument is that, in view of a
general reliance and acceptance by the construction
employers of the Respondent's "referrals" as their only
practical source of operating engineers, the Respondent's
referral practice, although not the subject of any agreement
or contract with any employer, constituted an "exclusive
hiring hall" arrangement with construction employers in
the area, under which any discrimination against its
members for activity protected by the Act is an unfair labor
practice. The General Counsel's second argument is, in
substance, that although voluntarily attempting to secure
jobs for its members on employers' requests, the Respon-
dent is obligated, when such a request is made and it
therefore reasonably expects that a "referral" will be
accepted, to refer its known available members without
discrimination.
From the General Counsel 's presentation of the first of
these two arguments (the general substance of which I have
just stated), it appears that the General Counsel is
contending that the Respondent's referral practice and its
use by employers have resulted in such an "exclusive hiring
hall arrangement" between the Respondent and the
employers as to obligate the Respondent to make referrals
of its members upon request, either because the existing
practice implies an agreement to that effect or because the
Respondent's referrals constitute the employers' only
source of qualified engineers as well as the only channel
through which the engineers may at times hope to secure
employment. But neither of these branches of the General
Counsel's argument is supported by the evidence. For, as I
have found, the Respondent's existing referral practice is
used in filling only 5 percent of the job openings for
operating engineers; the other 95 percent of these jobs are
filled by the employers themselves on direct applications
without union referral, and, even in the small percentage of
cases in which "referrals" are hired, it does not appear from
the evidence that the employers or the engineers themselves
are compelled by circumstance to use the referral system
either to fill or to secure jobs. There is therefore no basis in
the record for holding that, either by implication or by
compelling necessity, the Respondent's referral practice
and its use by employers have resulted in such a virtual
679 (C A. 5), enfg. 152 NLRB 1374
4 Carpenters Local #40, United Brotherhood of Carpenters, 143 NLRB
142, 143
5 Hoisting & Portable Engineers, Local 302, 144 NLRB 1449. 152, United
Construction Company and United Brotherhood of Carpenters, etc, Local No
171, 169 NLRB No I (TXD), Frank Pauley, Agent 152 NLRB 1409,
1414-15, Millwrights Local Union 1421, 156 NLRB 94, 103 (and see other
earlier decisions cited in fn . 10) The Board will infer an exclusive referral
and hiring arrangement giving rise to the Union's obligation to refer or
clear, only from a continuing mutual practice in which the Union has in
fact been the sole source of an employer's workers See N L R B v Local
568, Hotel Employees, 334 F.2d 723, 727-728 (C A 3 ), enfg 141 NLRB 310
HOISTING AND PORTABLE ENGINEERS, LOCAL 4 375
"exclusive hiring arrangement" that the Respondent has
been obligated either to employers or to its own members to
make referrals whenever requested.
The General Counsel is sound, however, in his second
argument that, although the Respondent's referral practice
has been purely voluntary, the Respondent is nevertheless
under an obligation to its members, so long as it pursues its
practice of supplying even a limited employment service, to
continue to furnish this service without discrimination
whenever an employer makes a request for an engineer.
This obligation to its members is imposed by the
prohibitions in Section 8(b)(1)(A) and (2) of the Act and is
not dependent on the existence of any contractual or other
obligation arising under an "exclusive hiring hall arrange-
ment." For, the withholding by a union in the Respondent's
position of a job referral of one of its eligible members,
under an existing nonexclusive referral practice in reprisal
for the member's activity protected by Section 7 of the Act,
discriminatorily narrows the job opportunities of the
member, thereby restrains him and other members in the
exercise of their right to engage in the protected activity,
and is certainly such restraint and coercion of the members
as to be violative of Section 8(b)(1)(A) of the Act. Similarly,
such a discriminatory withholding of referral is also a
violation of Section 8(b)(2) when it appears that the
employer knew of the union's refusal to refer and it can
therefore be said that by the refusal the union caused or
attempted to cause the employer to refuse to hire the
disfavored member .6
Returning to a consideration of the first of the three
instances of alleged discrimination by the Respondent in
refusing job referrals to Robert Messenger, it will be
recalled that both Messenger and Smith told Business
Agent DeRosa in their telephone conversations on January
19, 1969, the Messenger had found unattended heaters
operating on the Carlson job in Bedford the preceding
Friday night and claimed one of the night shift jobs; that
DeRosa told Messenger as well as Smith that he would do
nothing to help Messenger get the job; and that when
Carlson asked DeRosa to refer two men for the night shifts
within the next few days, DeRosa referred Smith and Mara
who thereupon got the jobs on January 24, 1969, instead of
Messenger . Not only did Business Agent DeRosa thereby
depart from his usual practice in handling referrals by
summarily rejecting the priority claimed by Messenger to
the Carlson jobs by reason of his having "found" them, but
his brusque rejection of Messenger' s claim (particularly in
his hostile remark to Smith that he "wouldn't give that
bastard [Messenger] a job if he was the last one on earth")
appears to have no explanation in the circumstances shown
by the evidence, other than that DeRosa's refusal to refer
Messenger to the Carlson jobs was based on Messenger's
disagreeable but protected "intraunion activities" against
the Respondent's officers. Accordingly, I conclude that the
Respondent, acting through Business Agent DeRosa,
refused to refer Messenger to the Carlson Company's
Bedford job on January 19, 1969, because of Messenger's
protected "intraunion activities," and that the refusal in this
instance deprived Messenger of one of the heater jobs with
Carlson on January 24, 1969, and constituted an unfair
labor practice within the meaning of Section 8(b)(1)(A) of
the Act.
But, since Carlson, the employer, knew nothing of
Messenger's claim to the job nor of the Respondent's
refusing him a referral, I cannot find that the Respondent's
action "caused or attempted to cause" Carlson to
discriminate against Messenger in violation of Service
8(a)(3) of the Actor therefore that the Respondent's refusal
of the referral was a violation of Section 8(b)(2).
Consequently I shall dismiss the 8(b)(2) allegation of the
complaint based upon this incident.
Nor do I find that the evidence (which I have already
discussed in - detail) supports the allegations of the
complaint that the Respondent discriminatorily refused or
failed to refer Messenger to either of the two Manzi jobs on
the North Andover site in February and March 1969. As to
the first of these jobs in February, it does not appear from
the evidence that Messenger ever made any request to the
Respondent to be referred to the job or that the
Respondent had any reason to believe that Messenger was
available when Business Agent Grande assigned engineer
Paul to the job because he knew that Paul had already been
working on the site. And as to the second Manzi job on the
same site in March, it appears that the job was filled not by
any union referral but by the independently arranged
transfer of engineer Ginuisz from a job with another
contractor on the site to Manzi, and that this was explained
to` Messenger by Business Agent Grande when the latter
finally spoke to Messenger about the matter. Accordingly, I
find that the evidence does not aupoort, and I will therefore
dismiss, the allegations of the complaint that the Respon-
dent in violation of Section 8(b)(1) or (2) of the Act
discriminated against Messenger by refusing or failing to
refer him to either of the Manzi jobs on February 25 or
March 10, 1969.
III. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Respondent, Hoisting & Portable
Engineers, Local No. 4 and its Branches of the Internation-
al Union of Operating Engineers, which have been set forth
in section II, above, have a close relation to trade, traffic,
6 In his development of this argument in his brief , the General Counsel
relies on the Board's recent decision in Chauffeurs Union Local 923 (172
NLRB No 248) in which the Board applied the "fair representation"
principle of the Miranda case ( 140 NLRB 181) to hold that, even absent an
exclusive hiring hall arrangement , the respondent union as a statutory
exclusive bargaining representative violated sec 8(b)(1)(A) of the Act by
discriminatorily refusing assistance to secure employment elsewhere for
certain employees in the represented bargaining unit because they had
opposed reelection of the Union's officers While the "fair representation"
principle is not strictly applicable in the present case since the Respondent
was not in most instances the statutory exclusive bargaining representative
of employees of the employers with whom it dealt, the analogy and the
Board's reasoning in the Chauffeurs case are serviceable and instructive In
the "fair representation" cases, the unions ' obligation of fair dealing in
assisting the employees they represent without discrimination is based on
their undertaking the fair performance of the bargaining and incidental
obligations imposed by, and voluntarily assumed by them, under Sec 8(d),
8(b)(3), 8(b)(1)(A), and, also where applicable 8(b)(2) In the present case,
the Respondent 's obligation to its members not to discriminate in referrals
is imposed by its voluntary continuance of its referral practice and the
application of Sec 8(b)(1)(A) and (2) of the Act
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
IV. THE REMEDY
It has been found that on January 19, 1969, the
Respondent, Hoisting & Portable Engineers, Local No. 4
and its Branches of the International Union of Operating
Engineers, a labor organization, committed unfair labor
practices within the meaning of Section 8(b)(1)(A) of the
Act by refusing to issue a job referral to Robert E.
Messenger because he had engaged in protected concerted
activities in opposition to the Respondent's officers.
Accordingly, it is recommended that the Respondent cease
and desist from its unfair labor practices and take such
affirmative action as is necessary to effectuate the policies
of the Act.
It has also been found that by its aforesaid discriminato-
ry, illegal refusal to issue a job referral to Messenger, the
Respondent deprived Messenger of a job with the Carlson
Corporation on January 24, 1969. Accordingly, it is
recommended that the Respondent make Robert E.
Messenger whole for any loss of earnings suffered by him as
a result of the Respondent's discrimination by payment to
him of a sum of money equal to that which he would have
earned as wages in the employ of Carlson Corporation on
and after January 24, 1969, less his net earnings elsewhere
during the same period. Loss of earnings and interest
thereon at the rate of 6 percent per annum shall be
computed in the manner set forth in F W. Woolworth
Company, 90 NLRB 289, and Isis Plumbing & Heating Co.,
138 NLRB 716.
In his brief, the General Counsel requests that the
remedial order direct the Respondent to "establish lawful
nondiscriminatory standards for the operation of its
referral service," distribute copies of these standards to its
members, and "maintain records to reflect accurately and
fairly the operation of the referral service." I deny this
request. The evidence, as I have found, does not support the
General Counsel's contention that the Respondent's
referral practice created a compulsory, exclusive hiring hall
arrangement. On the contrary, it shows simply a voluntary
nonexclusive employment service rendered by the Respon-
dent for its members which is used in only about 5 percent
of the hirings of operating engineers in the area served by
the Respondent. Furthermore, the Respondent's avowed
standards, though loose in their application, are fair and
nondiscriminatory; it is impracticable under the circum-
stances shown by the evidence for the Respondent to
establish an elaborate, formulaic hiring hall especially for
the large geographical area and the small percentage of
hirings it would serve; and, in any event, only one instance
of illegal discrimination has been proved. In such a limited
situation, it would seem unwise, if not improper, for the
Board to require the establishment of a referral system or
hiring hall according to any prescribed procedures or rigid
standards which the Board might or might not believe to be
7 See Local 138, Operating Engineers v N L R B, 321 F 2d 130, 137-138
(C A 2) But see also and compare the orders and notices prescribed by the
Board to remedy discrimination under an exclusive hiring hall arrangement
or practice in International Union of United Brewery etc, Workers of
fair orl give reasonable assurance of nondiscriminatory
operation.7
CONCLUSIONS OF LAW
1. The Respondent, Hoisting & Portable Engineers,
Local No. 4 and its Branches of the International Union of
Operating Engineers, is a labor organization within the
meaning of the Act.
2. Carlson Corporation and Manzi Electrical Corp. are
employers engaged in commerce within the meaning of the
Act.
3. By refusing on January 19, 1969, to issue a job
referral to Robert E. Messenger, one of its members, for a
job with Carlson Corp. because Messenger had engaged in
concerted activities protected by Section 7 of the Act, the
Respondent has committed an unfair labor practice within
the meaning of Section 8(b)(1)(A) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
5. Except as found herein, the Respondent has not
committed unfair labor practices within the meaning of
Section 8(b)(1)(A) or (2) of the Act as are alleged in the
complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in the case, it
is recommended that the Respondent Hoisting & Portable
Engineers, Local No. 4 and its Branches of the Internation-
al Union of Operating Engineers, and its officers, agents,
and successors, shall:
1. Cease and desist from discriminating against Robert
E. Messenger or any of its members in the issuance of, or by
its refusal to issue, ajob referral to the Carlson Corp. or any
other employer because Messenger or any other member
has engaged in such concerted activities in opposition to, or
in criticism of, the Respondent or its officers as are
protected by Section 7 of the Act, including but not limited
to opposing the reelection of incumbent officers, running
for election to union office, criticizing the Respondent or its
officers in communications to governmental agencies, filing
suits against the Respondent or its officers in the courts,
and filing charges of unfair labor practice with the Board.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Make whole Robert E. Messenger for any loss of
earnings suffered by him as a result of the Respondent's
refusal to issue him a referral to a job with the Carlson
Corporation on January 19, 1969, by payment to him of a
sum of money equal to that which he would have earned as
wages in the employ of Carlson Corp. on and after January
24, 1969, less his net earnings elsewhere during the same
period. Loss of earnings and interest thereon at the rate of 6
percent per annum shall be computed in the manner set
America, AFL-CIO, 166 NLRB No 97, and International Association of
Bridge, Structural & Ornamental Iron Workers, Local 751, AFL-CIO, 175
NLRB No 2
HOISTING AND PORTABLE ENGINEERS, LOCAL 4 377
forth in F. W. Woolworth Company, 90 NLRB 289 and Isis
Plumbing & Heating Co.,138 NLRB 716.
(b) Post at its business offices, meeting halls, and all other
places where notices to members are customarily posted,
copies of the attached notice marked "Appendix." 8 Copies
of said notice, to be provided by the Regional Director for
Region 1, shall, after being duly signed by a representative
of the Respondent, be posted by the Respondent immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to members are customarily
posted. Reasonable steps shall be taken by the Respondent
to ensure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 1, in writing,
within 20 days from the date of the receipt of this Decision
and Recommended Order, what steps it has taken to
comply herewith.9
It is further recommended that the Board dismiss the
allegations of the complaint asserting Respondent's
commission of unfair labor practices other than those I
have herein specifically found
8 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, recommendations, 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 be deemed waived for all purposes In the event
that the Board's Order is enforced by a Judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board "
9 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region I , in writing, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discriminate against Robert E.
Messenger or any of our members in the issuance of, or
by a refusal to issue , a job referral to the Carlson Corp.
or any other employer because Messenger or any other
member has engaged in concerted activities in opposi-
tion to, or in criticism of, this Union or its officers,
including opposition to the reelection of officers,
running for election to union office, criticizing the
Union or its officers in communications to governmen-
tal agencies, filing suits against the Union or its officers
in the Courts, and filing charges of unfair labor practice
with the Board
WE WILL make whole Robert E. Messenger for any
loss of earnings suffered by him as a result of our failure
and refusal to issue him a referral to a job with the
Carlson Corp. on January 19, 1969.
Dated By
HOISTING & PORTABLE
ENGINEERS , LOCAL No 4
AND ITS BRANCHES OF
THE INTERNATIONAL UNION
OF OPERATING
ENGINEERS
(Labor Organization)
(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, 20th
Floor, John F. Kennedy Federal Building, Cambridge &
New Sudbury Streets, Boston, Massachusetts 02203,
Telephone 617-223-3353.