International Union of Operating Engineers, AFL-CIO, Local Union 450 (Houston Chapter, Associated General Contractors of America, Inc.)

National Labor Relations Board - Board Decisions

Aug 26, 1983

267 N.L.R.B. 775 (N.L.R.B. 1983)

OPERATING ENGINEERS LOCAL UNION 450
International Union of Operating Engineers, AFL-
CIO, Local Union 450 and Joel Lathan and
Larry Schubert and Houston Chapter, Associat-
ed General Contractors of America, Inc., and
Construction Employers' Association of Texas,
Parties to the Contract. Cases 23-CB-2557-1
and 23-CB-2557-2
26 August 1983
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JENKINS AND HUNTER
On 10 December 1982 Administrative Law
Judge Richard J. Linton issued the attached Deci-
sion in this proceeding. Thereafter, Respondent and
the General Counsel filed exceptions and support-
ing briefs. '
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
Respondent has requested oral argument. This request is hereby
denied as the record, the exceptions, and the briefs adequately present the
issues and positions of the parties.
2 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have careful-
ly examined the record and find no basis for reversing his findings.
Contrary to our dissenting colleague, we find that the record supports
the Administrative Law Judge's conclusion that Respondent departed
from its established hiring hall procedures. There is no dispute that a sign
is posted in the Union's hiring hall stating that all jobs will "be called out
upstairs." Business agent Johnson, who admitted the existence of the
posting, did not even deny that the condition contained therein consti-
tutes part of the Union's established hiring hall procedures. We are un-
persuaded by his explanation that positions which are filled by individuals
who are requested by name are not considered "job openings."
In these circumstances-i.e., Respondent has designed specific objec-
tive hiring hall procedures-we believe Board precedent compels finding
a violation of the Act when Respondent departs from those procedures.
ings, 2 and conclusions3 of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein. 4
It is true that the Board has found violations based upon the application
of a rule because the rule as applied did not conform to the standard of
fairness required of a union hiring hall system. It is equally clear that the
Board has premised hiring hall violations upon the nature of the rule
itself, or upon the arbitrary departure from the rule, rather than solely
upon the application of the rule. Cf. Operating Engineers Local 406 (Ford.
Bacon & Davis Construction), 262 NLRB 50 at 50-51 and fn. 6 (1982),
enfd. 701 F.2d 504 (5th Cir. 1983) (violation premised upon arbitrary de-
parture from self-established referral system); Boilermakers Local 667
(Union Boiler Co.), 242 NLRB 1153, 1155 (1979) (violation premised upon
vagueness and indefiniteness of rule itself). We believe Respondent's fail-
ure to follow its referral system procedures is such an arbitrary departure
from its hiring hall rules.
The Administrative Law Judge found that Respondent violated Sec.
8(b)(1)(A) and (2) by failing to announce jobs which were filled by re-
quest or steward appointment in accord with the established hiring hall
procedures. Inasmuch as the remedy for the 8(bXI)(A) violation remains
the same as that provided by the Administrative Law Judge, we do not
find it necessary to adopt his finding that Respondent's deviation from its
hiring hall rules violated Sec. 8(b)2).
In his discussion of par. 11 of the complaint, the Administrative Law
Judge stated that the Board has found that attempts to apply steward
preference clauses in the context of an exclusive hiring hall are not bur-
dened with a presumption of illegality, citing Teamsters Local 959 (Ocean
Technology), 239 NLRB 1387 (1979). Chairman Dotson and Member
Hunter note that, since no exceptions were filed with respect to the Ad-
ministrative Law Judge's reliance on Ocean Technology, they need not
pass upon the validity of this precedent at this time.
The fourth word of the last sentence of the sixth paragraph in the Ad-
ministrative Law Judge's discussion of par. I (a) of the complaint is
Johnson. It is clear from the record and the context that this name should
be Roberts. We hereby correct this inadvertent error.
s In concluding that Respondent violated Sec. 8(bX2) by causing an
employer to lay off Charging Party Lathan, the Administrative Law
Judge considered a statement by a foreman as admissible under the
"present sense impression" exception to the hearsay rule and, alternative-
ly, as hearsay which the Board may admit and give such weight as its
inherent quality justifies. We find it unnecessary to adopt the Administra-
tive Law Judge's "present sense impression" theory and rely instead on
his alternative rationale. We agree that the circumstances of this case, in-
cluding that Respondent's business agent harbored animus toward Lathan
and that Lathan was selected out of the customary layoff sequence, pro-
vide sufficient basis for finding that Respondent caused Lathan to be laid
off.
4 We shall modify the Administrative Law Judge's recommended
Order to provide that Respondent expunge from its files any reference to
the unlawful layoff of Joel Lathan in accord with Boilermakers Local 27
(Daniel Construction), 266 NLRB 602 (1983).
And, we shall modify the Administrative Law Judge's recommended
Order in accord with Sheet Metal Workers Local 355 (Zinsco Electrical),
254 NLRB 773 (1981), to provide that Respondent notify J. W. Bateson
Continued
267 NLRB No. 132
775
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
International Union of Operating Engineers, AFL-
CIO, Local Union 450, Houston, Texas, its officers,
agents, and representatives, shall take the action set
forth in the said recommended Order, as so modi-
fied:
1. Substitute the following as paragraph l(b):
"(b) Operating its exclusive hiring hall and refer-
ral system in an arbitrary or a discriminatory
manner by failing to announce at the 7 a.m. job
calls at its second floor hiring hall facility which
job orders have been filled by request and by ap-
pointment of stewards and the names of the opera-
tors so requested and appointed, and by failing to
follow the sequential referral of registrants from
the out-of-work list without such deviation being
necessary to the effective performance of its repre-
sentative function and also without the reason for
any such deviation being announced at the perti-
nent 7 a.m. job call."
2. Substitute the following as paragraph 2(a):
"(a) Make Joel Lathan and Larry Schubert
whole for any loss of earnings and benefits they
may have suffered by reason of Respondent's un-
lawful operation of its hiring hall in the manner set
forth in the section the Administrative Law Judge's
Decision entitled 'The Remedy."'
3. Insert the following as paragraphs 2(b), (c),
and (d), and reletter the remaining paragraphs ac-
cordingly:
"(b) Make Joel Lathan whole for any loss of
wages and benefits suffered by reason of the dis-
crimination against him from the date of his layoff
to the date of his reinstatement by J. W. Bateson
Company, Inc., to his former or substantially
equivalent job or to the date he secures substantial-
ly equivalent employment with some other employ-
er. Backpay shall be computed in the manner set
Company, Inc., that it no longer objects to Joel Lathan's hiring or em-
ployment: that Respondent affirmatively request J. W. Bateson Company,
Inc., to reinstate Lathan; and that Respondent make Lathan whole for all
losses of wages and benefits suffered as a result of Respondent's discrimi-
nation against him from the date of his unlawful layoff on 3 December
1981 until Lathan is either reinstated to his former or substantially equiv-
alent position or until he obtains substantially equivalent employment
elsewhere.
In certain circumstances the Board has held that the Zinswo rationale is
applicable to cases in which a union refuses to refer an employee in viola-
lion of the Act where there is no finding of culpability on the part of the
employer, Iron Workers Lcaul 118 (Pittsburgh Des Moines Steel), 257
NLRB 564 (1981), However, as in Operatitng Engineers Local 406 (bord.
Bacon & Davis Construction), 262 NL RB 50, we shall not apply that
remedy to the failures to refer herein where the discrimination appears to
have involved short-term or temporary jobs
forth in the section of the Administrative Law
Judge's Decision entitled 'The Remedy.'
"(c) In writing, with copies furnished to Joel
Lathan, ask J. W. Bateson Company, Inc., to
remove any reference to Lathan's unlawful layoff
on 3 December 1981 from J. W. Bateson Company,
Inc.'s files; notify J. W. Bateson Company, Inc.,
that it has no objection to the hiring or employ-
ment of Lathan; and request J. W. Bateson Compa-
ny, Inc., to reinstate Lathan to his former job or to
a substantially equivalent position.
"(d) Expunge from its files any reference to the
unlawful layoff of Joel Lathan on 3 December
1981 and notify him, in writing, that this has been
done and that evidence of this unlawful layoff shall
not be used as a basis for future personnel actions
against him."
4. Substitute the attached notice for that of the
Administrative Law Judge.
MEMBER JENKINS, dissenting in part:
I agree with the various findings of my col-
leagues herein, except for their finding that Re-
spondent has violated Section 8(b)(1)(A) of the Act
by failing to operate its hiring hall so that all refer-
rals are announced in the assembly room where ap-
plicants for referral are waiting. In the circum-
stances of this case, there is insufficient basis to find
that Respondent acted unlawfully by announcing
certain referrals from its administrative offices in
the union hall.
The underlying facts are not in dispute. At the
beginning of each workday, the union business
agent on duty assembles work orders from employ-
ers and distributes referrals to the waiting hiring
hall applicants located on the second floor of the
union hall. Congruent with this basic procedure,
there is a sign posted at the hall which states: "All
jobs will be called upstairs." However, there are
two basic types of referrals which, so far as the
record here discloses, have never been announced
in the upstairs assembly hall. First, approximately
25 percent of the requests from employers specify
the name of the individual requested, and the
Union's established practice has been to honor
these requests and to inform the individuals direct-
ly from the Union's downstairs offices. 5 The
second group of referrals has involved those indi-
viduals dispatched to a job as the union steward, a
procedure here found sanctioned by the parties'
bargaining agreement. The testimony shows that
ordinarily the first unit employee dispatched to a
job is designated the steward, and that this selec-
s The Union's business agent, Johnson, explained that a request for a
specific individual is not considered a job opening, and that there would
be no point in making that referral at the upstairs job call.
776
OPERATING ENGINEERS LOCAL UNION 450
tion of the steward is done without regard to the
individual's comparative standing on the out-of-
work register. The referral of these stewards has
been made from the downstairs offices.
I find no violation of the Act as a result of these
practices for the simple reason that the majority
errs in concluding that there was a departure from
the Union's established hiring hall procedures. The
sole factual basis for their conclusion is that there
was a sign posted at the union hall stating: "All
jobs will be called upstairs." However, this single
sign, uncorroborated by hiring hall rules either in
the bargaining agreement or unilaterally established
by the Union, is insufficient to define what is "the
established procedure" in the face of uncontradict-
ed evidence that at all material times over 25 per-
cent of the referrals were separately announced
from the downstairs offices."
Moreover, the cases cited by the Administrative
Law Judge, and relied on by the majority for find-
ing the violation, do not provide an adequate basis
for the majority's broad holding that a Union's de-
parture from hiring hall procedures which has no
impact on the actual selection of employees to be
referred is violative of Section 8(b)(l)(A). The
quoted section from Ford, Bacon & Davis Construc-
tion7 relied on by my colleagues states that a viola-
tion occurs where the departure from established
referral rules "results in a denial of employment to
an applicant .... " Here, the fact that the referral
occurred downstairs as opposed to upstairs has no
bearing on who would be selected under criteria
which the majority otherwise has found to be
lawful. Similarly, their reliance on the Board's
statement in Building Contractors of N.J.,8 that ex-
clusive hiring halls must be operated on objective
standards, again is aimed solely at preventing offi-
cials responsible for referrals from denying employ-
ment to referral applicants for arbitrary or discrimi-
natory reasons. Although the referral of employees
upstairs in the Union's assembly hall would subject
the Union's practices to far greater scrutiny, with
arguably less chance of suspicion being aroused on
the part of the referral applicants, in the absence of
general hiring hall abuses9 this is not the proper
6 Although the record does not indicate what percentage of referrals
are for individuals designated as stewards, it is apparent that their num-
bers are not inconsiderable. Accordingly, it is probable that the down-
stairs referrals are substantially higher than 25 percent of the total, which
figure is based solely on referral requests by name.
7 Operating Engineers Local 406 (Ford, Bacon & Davis Construction).
262 NLRB 50 (1982).
Laborers Local 394 (Building Contractors of NJ.), 247 NLRB 97
(1980).
g Out of the 35 allegations of hiring hall abuse regarding referrals, only
3 were found to have violated Sec. 8(b)(2) because Respondent had insuf-
ficient evidence to rebut the presumption that referrals out of sequence
are unlawful Compare Iron Workers Local 480 (Building Contractors of
A.J), 235 NLRB 1511 (1978). where as a result of widespread hiring hall
basis for the Board's intervention into purely pro-
cedural aspects of the operations of a hiring hall.
I would dismiss this allegation in the complaint.
abuses the Board specified hiring hall procedures to be adopted by the
respondent therein. There is no such pattern of abuse in the instant case,
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through represent-
atives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT coerce or restrain you in the
exercise of the rights guaranteed you by Sec-
tion 7 of the National Labor Relations Act, as
amended, by threatening to remove you from
your job if you file charges with the National
Labor Relations Board, or by threatening you
with death if you persist in your right to inves-
tigate conduct which you suspect to be back-
dooring in the referral of members or other
job applicants to jobs, or by assaulting you or
using physical force against you because you
have engaged in such conduct or because you
have filed charges against Local 450 with the
National Labor Relations Board.
WE WILL NOT file internal union charges
against you, subject you to an internal union
trial, fine you, or expel you from membership
in Local 450 because you investigate suspected
backdooring or because you express an inten-
tion to file, or do file, charges against Local
450 with the National Labor Relations Board.
WE WILL NOT operate our exclusive hiring
hall and referral system in an arbitrary or a
discriminatory manner by failing to announce
at the 7 a.m. job calls at the second floor
hiring hall facility which job orders have been
777
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
filled by request and by appointment of stew-
ards and the names of the operators so request-
ed and appointed, and by failing to follow the
sequential referral of registrants from the out-
of-work list without such deviation being nec-
essary to the effective performance of our rep-
resentative function and also without the
reason for any such deviation being an-
nounced.
WE WILL NOT cause or attempt to cause em-
ployers to discriminate against Joel Lathan,
Larry Schubert, or any other employee,
member, or applicant for employment based
on reasons rendered unlawful by the National
Labor Relations Act, as amended.
WE WILL NOT in any like or related manner
restrain or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL announce at the daily 7 a.m. job
call at the second floor hiring hall which jobs
have been filled by request and steward ap-
pointment and notify you of the names of the
operators so requested and appointed.
WE WILL make Joel Lathan and Larry
Schubert whole, with interest, for any loss of
earnings they may have suffered because of
our failure and refusal to refer them on various
occasions after 1 January 1981 to work with
various employer-members of the AGC and
CEA.
WE WILL make Joel Lathan whole for any
loss of wages and benefits suffered by reason
of the discrimination against him from the date
of his layoff to the date of his reinstatement by
J. W. Bateson Company, Inc., to his former or
substantially equivalent job or to the date he
secures substantially equivalent employment
with some other employer, less his net earn-
ings during this period.
WE WILL, in writing, with copies furnished
to Joel Lathan, ask J. W. Bateson Company,
Inc., to remove any reference to Lathan's un-
lawful layoff on 3 December 1981 from J. W.
Bateson Company, Inc.'s files; notify J. W. Ba-
teson Company, Inc., that we have no objec-
tion to the hiring or employment of Lathan;
and request J. W. Bateson Company, Inc., to
reinstate Lathan to his former job or to a sub-
stantially equivalent position.
WE WILL expunge from our files any refer-
ence to the unlawful layoff of Joel Lathan on
3 December 1981 and notify him, in writing,
that this has been done and that evidence of
this unlawful layoff shall not be used as a basis
for future personnel actions against him.
WE WILL declare the 9 July 1981 internal
union charges and the 24 September 1981
trials, fines, and membership expulsion of Joel
Lathan and Larry Schubert to be nullities, and
WE WILL expunge from our records all refer-
ences to such charges, trials, fines, and expul-
sions and WE WILL notify such members in
writing that we have done so.
WE WILL respect your rights to investigate
and discuss what you suspect to be backdoor-
ing, and WE WILL respect your right to file
charges with the National Labor Relations
Board, and WE WILL read this notice to all
members attending a regular membership
meeting as part of our compliance with the
Order of the National Labor Relations Board.
INTERNATIONAL UNION OF OPERAT-
ING ENGINEERS, AFL-CIO, LOCAL
UNION 450
DECISION
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge: This
case was tried before me in Houston, Texas, on May 10,
11, and 12 and June 1 through 4, 1982, pursuant to the
August 12, 1981, consolidated complaint (complaint)
issued by the General Counsel of the National Labor Re-
lations Board through the Regional Director for Region
23 of the Board. The complaint, as subsequently amend-
ed, is based upon a charge filed on June 8, 1981, in Case
23-CB-2556-1 by Joel Lathan (Lathan) against Interna-
tional Union of Operating Engineers, AFL-CIO, Local
Union 450 (Respondent, the Union, or Local 450), and
also upon a charge filed on June 8, 1981, in Case 23-CB-
2557-2 by Larry Schubert (Schubert) against Respond-
ent.
In the complaint the General Counsel alleges that Re-
spondent violated Section 8(b)(1)(A) of the Act by cer-
tain conduct, including threatening Lathan with job loss,
internal union charges, beating, and death, physically as-
saulting Lathan, and prosecuting and fining Lathan and
Schubert $1,000 each in an internal union trial, 2 and Sec-
tion 8(b)(2) of the Act by "backdooring" favored mem-
bers to jobs even though Lathan and Schubert, and other
unfavored members and nonmembers, were higher than
such favored members on the out-of-work list.
By answer, Respondent admits certain factual matters
but denies that it has violated the Act.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due consider-
All dates are in 1981 unless otherwise indicated.
2 Lathan and Schubert also were expelled from membership in Local
450. Lathan's timely appeal is pending before the Union's International.
Schubert's appeal was filed late. At the trial and in his brief the General
Counsel asserts that he is attacking all aspects of the union trials in seek-
ing an order declaring them to be a nullity
778
OPERATING ENGINEERS LOCAL UNION 450
ation of the briefs filed by the General Counsel and Re-
spondent, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent does not contest jurisdiction. Houston
Chapter, Associated General Contractors of America,
Inc. (AGC), and Construction Employers' Association of
Texas (CEA) are Texas corporations with their separate
principal offices and places of business in Houston,
Texas, where each is engaged in the business of repre-
senting its employer-members in respect to negotiating
and policing collective-bargaining agreements, labor rela-
tions, and kindred matters. Respondent admits that speci-
fied members of AGC and CEA each purchased materi-
als valued in excess of $50,000 from other enterprises
which received said materials directly from points locat-
ed outside the State of Texas. Local 450 admits, and I
find, that such members of AGC and CEA are employ-
ers within the meaning of Section 2(2), (6), and (7) of the
Act.
II. LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that it is a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
I. Local 450
The Union has a big membership and covers a large
territory in referring operating engineers to employer-
contractors engaged in the building and construction in-
dustry. N. F. Renaud, business manager of Local 450
since June 1980, testified that the Union's territory con-
sists of 96 Texas counties stretching from the city of
Brownsville, in the Texas Valley, north to Austin and
eastward to the Louisiana border. In short, the area en-
compassed covers much of the southern half of Texas.
Renaud further testified that the Local has some 4,500
members.
Local 450 is divided into seven districts. Houston,
Texas City, and Freeport are respectively Districts 1, 2,
and 7. Although the events alleged herein occurred
within District I, Houston, "Local 450, Districts 1, 2,
and 7," is the recognized and contractual collective-bar-
gaining representative of the operating engineers in the
territory of such districts. The collective-bargaining
agreement "Local 450, Districts 1, 2, and 7," has which
is involved herein is with the AGC and CEA. The
agreement (G.C. Exh. 2) is effective for the period of
April 2, 1981, through March 31, 1982. As will be dis-
cussed shortly, the parties herein stipulated that respect-
ing the employers involved in this case Local 450 has an
exclusive hiring hall arrangement.3
3 Under the express language of the collective-bargaining agreement,
the Union is only a source of operating engineers.
R. L. "Sonny" Johnson, assistant business manager,
also serves as one of the business agents for the Houston
District. He testified that his territory covers, generally,
downtown Houston northwest to Byran, Texas. 4 Other
business agents, such as Bill Barker and Lester Dennis,
also have assigned geographical territories within the
Houston District. Most of the allegations herein pertain
to events occurring within Johnson's territory. As we
shall see, Johnson and Lathan are the principal witnesses
involved in this case. Johnson has been a member of
Local 450 since 1956, and has been a business agent for
nearly 15 years. Johnson also is the elected financial sec-
retary of the Union, one of the Union's trustees of trust
fund management, and has held at least one other union
office.
2. Charging Party Joel Lathan
Joel Lathan, a heavy equipment operator since 1955,
testified that he joined Local 953 in Albuquerque in 1973
and transferred to Local 450 in 1976.
The genesis of Lathan's problems with Local 450 dates
back to December 1979. According to Lathan, at that
time he had worked his way up through I- and 2-day
jobs to second on the out-of-work list (o-w-l herein)
when he was referred to a shutdown (a "turnaround" job
with many overtime hours) with Pan Con, Inc., at the
ARCO refinery.8 After reporting to the job he discov-
ered that, of the 26 operators already there, the foreman
had requested (by name) only four. Lathan subsequently
complained to Gordon Hyatt, then a business agent who
had jurisdiction over the job location. In essence Lath-
an's complaint was that 22 operators had been "back-
doored" to the job while he was sitting on the bench in
the number two position on the o-w-l. 6 Lathan com-
plained that it was Christmas time, that he paid his dues,
and that it was unfair. 7
Hyatt replied that the practice had been going on for a
long time and there was nothing Lathan could do about
it except get himself "into a lot of trouble."
No shrinking violet, Lathan thereafter made inquiry as
to the appropriate source to carry his protest, and in Jan-
uary 1980 he filed an unfair labor practice charge against
Local 450 in Case 23-CB-2375. Following its investiga-
tion of the charge in that case, the NLRB's Regional
Office in Houston issued a complaint setting the matter
for trial in August 1980. On the day the trial was to
Renaud estimated that there are 1,800 members in District I. but
Johnson placed the number at or about 2.200.
a The story is pieced together from Lathan's testimony, the pension re-
porting form (G.C. Exh. 26-4). and his first pretrial affidavit dated July 6,
1981 (Resp. Exh. 4, p. 6).
' By "backdooring" is meant that union representatives, in the context
of an exclusive hiring hall, disregard established referral procedures in
order to send their friends, relatives, or other favored persons to jobs
without regard to where the names of such individuals are located on the
o-w-l or. in some cases, without regard to whether they even have regis-
tered as out of work. Backdooring is to be distinguished from established
exceptions to the FIFO (first in, first out) out-of-work list. such as em-
ployees requested by name, where such exceptions are fairly administered
and are not inherently discriminatory. This subject is discussed in more
detail later, including the text for fn. 88 below.
It appears from Lathan's testimony that Hyatt is no longer a business
agent.
779
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
commence, in the very courtroom where the hearing in
the instant case was held, Johnson called lathan into the
hallway for a conversation. 8 In the conversation Johnson
suggested that Lathan, by proceeding with the trial,
would only be harming the Local and that in the long
run it would be better if he settled the case.9
Lathan went to the General Counsel's trial attorney
and said he wanted to settle the case. A settlement was
arranged. Although the details are not set forth in the
record completely, it appears that Lathan agreed to
accept a cash settlement to be presented by check which
Lathan in turn would endorse back to the Union. In his
July pretrial affidavit, Lathan states that the General
Counsel's trial attorney informed him that, while he was
entitled to backpay, he could do anything with it that he
desired.1 0 In addition, business manager Renaud was to
send a letter to Lathan declaring that there would be no
backdooring.
Renaud's promised letter is dated August 13, 1980
(Resp. Exh. 5). The text reads:
Dear Brother Lathan:
I am writing to you pursuant to the agreement
made with you on Wednesday, August 13, 1980, at
the National Labor Relations Board, Region 23.
I understand, and am sympathetic with, your con-
cern over the need for non-discriminatory applica-
tion of our referral procedure. Since my appoint-
ment as Business Manager, I have taken certain
steps that I feel will insure that no referrals are
made in violation of our long-established referral
procedure, and further, that no favoritism is shown
to any member with regard to job referrals. I have
personally instructed everyone on my staff that any
deviation from the referral procedure will not be
tolerated and that punitive measures will be taken if
any is found to exist. As a member of our Union,
you certainly have the right to demand no less.
I want to further assure you, that you will in no
way be discriminated against because you filed a
charge with the National Labor Relations Board.
That was nothing other than an exercise of a right
you have under the law.
I would encourage you, in the future, to report any
violations or suspected violations, of our referral
procedure directly to me, and they will be remedied
immediately.
8 Over Respondent's objection that the conversation involved a com-
promise and settlement, Lathan was permitted to describe the conversa-
tion on the basis that it contained an admission by Johnson showing moti-
vation relevant here
9On cross-examination, Respondent had Lathan confirm the account
he had set forth in his pretrial affidavit of July 6, 1981. In that version
Lathan quotes Johnson as stating, "He said we could go ahead with the
trial but if we did they were going to make it hard on me. He said it
would be better for me anid my family if I settled the case." That version,
of course, reflects an unlawful motivation by the threat to make it hard
on Lathan if he failed to drop the case Johnsoll did not address this testi-
mony. I find that the conversation occurred as set forth in Lathan's pre-
trial affidavit.
'O Respondent's objections to testimony about the check transaction. as
being part of a compromise and settlement, were overruled on the basis
that the details lead to an understanding of the events (and motivation) in
this case.
The door to my office is always open to you or any
other member who feels they have been mistreated
in any way.
Fraternally yours,
/s/ N. F. Renaud
N. F. Renaud
Business Manager
The settlement check was not mailed to Lathan.
During most of the time between August 1980 and the
end of the year, Lathan worked for Deck and Rogers, a
crane rental firm. Lathan testified that the firm sold out
to Equipco around November 1980. Lathan remained
until about the first part of January 1981 at which time
he left to sign the o-w-l. Lathan testified that he was not
permitted to sign the o-w-l until, in the office of Renaud,
he endorsed over the settlement check. Renaud, over the
objection of privilege of compromise and settlement, ad-
mitted that Lathan did endorse the check. 11
It apparently was during the fall of 1980 that Lathan,
while working for Deck and Rogers, filed a hospitaliza-
tion claim on which he subsequently discovered that
there was no coverage because the employer had not
made the required contractual contributions. In Decem-
ber 1980 Lathan went to the office of business agent Bill
Barker, who had jurisdiction over the territory, and
complained that there was no coverage because Deck
and Rogers had not made the required contributions to
the medical and welfare fund. 2 Barker said he would
check into it. As the days passed without word, Lathan
again checked with Barker, who did not seem very inter-
ested in helping Lathan in that he would give no answer
as to what he was doing on Lathan's request.
Lathan then went to Renaud with the matter, and
Renaud said he would check into it. Two weeks later
Lathan again asked Renaud about the matter, and the
business manager said he would turn it over to the ac-
counting office in Washington. Lathan asked for and re-
ceived the name and telephone number of the person
there who handles such matters. Hearing nothing further,
Lathan telephoned the number that Renaud had given
him earlier. The person there informed Lathan that there
was no record of Local 450's submitting the claim to
them for action.s Lathan's claim was never paid. It was
shortly thereafter, in January 1981, that Lathan went to
the union hall to sign the o-w-l."4
At the risk of confusing matters by getting ahead of
the sequence of events, it should perhaps be noted that
the nature of Lathan's employment at Deck and Rogers
is touched on briefly later herein when the September
1981 trial of Lathan on internal union charges is dis-
cussed.
I' Such details of the settlement are relevant to a consideration of the
motivation of the same participants in this case.
1a When Equipco took over in November, Barker appointed Lathan
steward when the latter called to report that the firm was not abiding by
the contract in certain respects.
':' Neither Barker nor Renaud addressed this subject in his testimony.
14 In his pretrial affidavit of July 6. 1981. Lathan asserts that he left
Equipco because the firm was not abiding by the contract.
780
O'PERA[ING ENGINEERS LOCAl. UNION 450
There is no dispute that Lathan sustained a head injury
when knocked unconscious on February 5, 1981, while
operating a forklift for All State Erectors. Inc. He in-
curred this injury from his head striking a metal canopy
of the forklift as the equipment lurched when a chain
broke while Lathan was pulling a crane with the forklift
(Resp. Exh. 1). Within the required time, Lathan filed a
workers' compensation claim. The details of the claim
have some bearing upon credibility. At this point it may
be noted that Lathan was paid $3,325 in temporary total
disability payments for the period of February 6 through
September 15, 1981, with the exception of the time of
April 14 through June 2 4 .1 These payments were in ad-
dition to medical expenses paid by the insurance compa-
ny. On September 23, 1981, the Texas Industrial Acci-
dent Board approved a lump sum settlement of
$20,000. 16 This sum was in addition to the $3.325 previ-
ously received by Lathan.
In its brief Respondent argues that Lathan testified
falsely concerning his sources of income by failing to dis-
close the compensation payments when initially asked
about them. The context of the record, however, shows
that Respondent first asked Lathan whether he operated
any business on the side other than his operating engi-
neer work. Lathan was then asked whether he had any
other source of income before his September 19, 1981,
union trial other than what he earned as an operating en-
gineer. Lathan replied. "[N]one at all." To the question
of whether the only income he had during that period
was what he earned as an operating engineer, Lathan re-
plied, "Right. Yes, sir." But in the followup question as
to whether he had no other income whatever, Lathan re-
sponded that he did have one small job doing some core
drilling. To another question about his sources of
income, Lathan again reiterated that he had no other
source of income.
After a series of other questions ending with whether
he had any money coming in, Lathan testified that he
had "no earnings." When Respondent's counsel stated
that he was talking about sources of income, counsel for
the General Counsel objected on the basis that the ques-
tion was misleading in the sense that the witness would
have thought that the questions related to earned income
and not whether the witness had a bank deposit, for ex-
ample, drawing interest. When the question was finally
clarified and made specific that it included money from
any source, including stock dividends, inheritance, or
whatever, Lathan answered in the affirmative. In these
circumstances, and in light of the entire record and my
observation of the witness, I find that Lathan did not tes-
tify falsely when he initially answered questions about
other sources of income in the negative. This is not to
say that the matter is free from all doubt. Lathan did not
appear to be a naive person, and, while he possibly
15 So testified Leonard P. Parker. an assistanl manager with the Hous-
ion office of the Htartford Insurance Company, the insuralce carrier
'6 Of which S5.,(X went to Lathan's attorney. The selttement also in-
cluded 3 years of any medical expcnses incurred at the direclonl of three
named doctors a, a compromise settlement foir Lathan's apparenlt claim of
total and permanenl incapacity.
Official nolice is taken of art 8306. sec 10. 'lotal Itcapaclty." of the
Texas Ciril Stat;ute. A copy of the statute is included in the record ia.
Risp Exh 21
should have recognized that his compensation payments
would have been considered a source of income, the se-
quence and nature of the questions were such as to focus
Lathan's attention on earned income. It is not at all un-
usual for a person not to think of other relevant topics
when focusing intently on a specific item.
Although Lathan was taken to a medical center at the
time of his injury, it appears that he only received an ex-
amination and X-rays and was not admitted for any
period of time. He did receive medical examinations,
medications, and treatments by doctors thereafter.
Lathan testified that as a result of the injury he lost
work "off and on" until about May, but that he never-
theless had worked when possible because the weekly in-
surance payments of $126 were too small not to work. 1 7
Moreover, he testified, "I asked the insurance company
about it and they said that was agreeable with them, to
go to work. So I did. I come there [the union hall] and
took whatever job I could get." Under further question-
ing by Respondent, Lathan testified that an employee of
the Hartford Insurance Company had agreed that he
could draw compensation while he worked. Lathan
could not recall the employee's name, and stated that he
would be released to return to work at different times.
If Lathan was attempting to explain that there was an
understanding whereby he would receive disability com-
pensation only for the periods he was not released to
return to work, it must be said that his testimonial clarifi-
cation falls short of articulating that concept. Moreover.
although he told the insurance carrier (Parker) on Febru-
ary 24, and again on March 18 (Resp. Exh. 9, p. 2), that
he had not yet been released to return to work, in fact
he was working on various dates throughout those
weeks as his union work history record (G.C. Exh. 17-
12), his pension report (G.C. Exh. 26-4), and the o-w-l
(G.C. Exh. 8) all show. Indeed, complaint paragraph 11,
as amended, contains several allegations falling in the
time frame that Hartford was making disability payments
in which it is asserted that Lathan had been bypassed on
the out-of-work list. It appears that three of the allega-
tions fall on two dates, March 12 and July 8, when
Lathan visited his doctors. "
On the other hand, Hartford Assistant Manager Parker
candidly admitted that it was Lathan who called in mid-
April and reported that he was working. Parker testified
that a Doctor Goldstein released Lathan to return to
work on April 14.
Parker testified that, while temporary total disability is
not paid to a claimant who is working, temporary partial
disability can be paid in the statutory amount. He further
testified that had he known that Lathan was working
through much of this period up to the September settle-
"' Insurance records show that his weekly payments were $133 (Resp
Exh I).
' I attach no significance, such as a conflict, to the fact that the doc-
tors' appointments were made and/or kept on dates covered by the com-
plaint There is no evidence that these medical appointments interfered
with Lathan's availability to work. Rescheduling of medical or other ap-
pointments is a common experience, and there is no evidence that Lathan
would nIot have, or could not have, rearranged his medical appointments
had he received conflicting job referrals.
781
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment he would have evaluated the claim at no more than
nuisance value. ' 9
Arguing from the foregoing at page 46 of its brief, Re-
spondent asserts that Lathan lied during his testimony
(about an understanding that he could be paid even
while working), and "that he defrauded Hartford Insur-
ance Company out of several thousands of dollars."
While the foregoing matters do raise a question con-
cerning Lathan's good faith, the evidence fails to estab-
lish fraud. There is no evidence that Lathan understood
the distinction between partial and total disability pay-
ments, and when the doctor released him to return to
work Lathan notified Hartford. The record supports the
inference, which I draw, that Lathan drew a distinction
between working with adverse physical conditions while
under the regular treatment of a physician and working
after the doctor's release. Until such release, it appears
that Lathan concluded that he technically was not able
to work because he had not been released to return to
work.
By way of comparison, the Texas courts interpret the
statute as permitting an injured employee to receive total
and permanent disability even though he, with pain for
example, is working full time. As stated in Consolidated
Underwriters v. Whittaker, 413 S.W.2d 709, 714 (Tex. Civ.
App., Tyler, 1967) (error refused, n.r.e.):
The rule is established in this state that the fact
that an injured employee resumes work after injury,
but only under the whip of necessity, does not nec-
essarily preclude a finding of total permanent dis-
ability; the latter issue remains, nevertheless, one of
fact to be passed upon by the jury.
In Consolidated Underwriters the insurance company was
appealing from an award of total and permanent disabil-
ity on the basis the record showed that Whittaker, after
his injury, worked at hard manual labor and earned even
more from the same employer than he had before his
injury. The court rejected this argument, ruled as shown
above, and observed:
In the case at bar, there is evidence which was not
disputed that Whittaker had to work, despite his in-
capacity to do so, in order to eat and feed his
family.
Lathan testified here that he had to work because he
could not live on the weekly disability payments.
B. Referral Procedures of the Exclusive Hiring Hall
The record contains a great deal of testimony by John-
son, Lathan, and others about the operation of the refer-
ral system through the o-w-l register. There seems to be
no dispute regarding the mechanics of the referral proce-
dure. Thus, when an employer calls the union hall and
makes a request for an operating engineer, a "work
order" card is completed. The dated work order lists the
name and telephone number of the person calling, the
19 Although this particular testimony was part of a rather lengthy
offer of proof regarding file memorandums, I shall reverse my rejection
of the offer as to this portion and receive this limited testimony because
of the relevance it has to Lathan's credibility.
contractor, the reporting time, the job location, a de-
scription of the equipment to be operated, and states, if
such is the case, that a specific operator is requested. 20
Business agent Johnson testified that in District I about
25 percent of the work orders are for specific opera-
tors.2 ' Whether the percentage ratio is different in the
winter months is not shown.
The business agents rotate certain office duties, includ-
ing opening the office at 6 a.m., receiving the work
orders by telephone, and calling out the work (or job)
orders. At Local 450, the general offices are downstairs
and the assembly hall, where most of the jobs are called
out, is upstairs on the second floor. It is generally be-
tween 6 and 7 a.m. that the job orders are received by
telephone and the work orders filled out. Before the
business agent on duty takes the bulk of the work orders,
that is, the 75 percent in which a specific operator has
not been requested, upstairs at 7 a.m. to call out the jobs
to the operators who are out of work, he distributes
downstairs most, if not all, of the remaining 25 percent to
the operators who have been requested by name. 22
That the downstairs distribution is subject to being mis-
interpreted so as to invite charges of backdooring is
proven by many of the allegations involved in this case.
Much of the bitter resentment reflected in the testimony
of Lathan, as he described the downstairs distribution, 23
20 There is no dispute that contractors may bypass a FIFO (first regis-
tered. first out) operation of the o-w-l by requesting a specific person.
Business agent Johnson even testified that if it were mandatory that refer-
rals be strictly by sequence of registration, with no consideration of capa-
bilities and with the contractors unable to request by name, then the con-
tractors would be put out of business. Aside from the question of wheth-
er that opinion is a bit hyperbolic. otne issue which has been raised here is
whether the request system has been operated in a discriminatory
manner. Neither the General Counsel nor the Charging Parties attack the
referral system as being either (1) facially illegal or (2) unlawful because
effects of the request system exception might be considered inherently
discriminatory in practice.
z' This percentage estimate is based upon an analysis Local 450 made
for the 3 months of June-August 1981 The analysis did not include the
factor of job duration because the Union does not know how long an op-
erator works on a particular job. While it could attempt to extrapolate
from the pension report of the number of hours worked for an employer,
that process no doubt could be inaccurate in that more than one job can
be listed under a contractor on the pension report for a given month.
On occasion l ocal 450 is asked to recommend an operator who has
certain capabilities and experience. While the traditional request by name
system does not seem to be an issue, it is unclear whether the recommen-
dation practice is free of controversy.
2~ During recross-examination. Johnson admitted that there is a sign at
the union hall which states. "All jobs will be called upstairs." When
asked how he could reconcile distributing requests to operators down-
stairs only a few feet from the posted sign, Johnson testified that there
would be no point in his carrying a work order involving a request to the
upstairs job call. By definition, he testified, a request is not a job opening.
aind it is the job openings which are called out upstairs.
2:' Lathan's anguish oser what he perceived to be rampant nepotism
appears throughout his testimony. One pithy description he gives is that
about 50 operators constitute a favored clique which gets the choice jobs
(long-term jobs or jobs involving a lot of overtime) downstairs. while
L.athan and the others languish upstairs in a sort of labor pool waiting for
day jobhs they can get to make a living. As operator Bill Johnson pictur-
esquely phrased it, the meat is distributed downstairs while only the bone
is brought upstairs. Moreover. it is clear that Lathan's charge is that.
while the hiring hall (under present rules) could be operated fairly, it in
tIact is administered nepolicly
782
OPERATING ENGINEERS l.OCAL UNION 450
could have been avoided if the Union had openly ex-
plained that such distribution was for operators who had
been requested and for operators selected by Local 450
to be stewards. 2 4 This is shown by some of the explana-
tions given by Respondent's witnesses at the instant trial
and by Lathan's candid statement on the last day ac-
knowledging that some of the instances of alleged back-
dooring possibly could have involved requests, and that
the instances of backdooring were fewer then than what
they were just a few years ago.
Business agent Johnson testified that when he calls out
the jobs upstairs he first goes through the whole stack of
work orders, describes the equipment to be operated and
the job location, and then starts down the o-w-l with the
top name given first choice. While it has happened that
he has exhausted the o-w-l before all the work orders,
apparently that usually is not the case. When work is
good there will be no more than 25 to 30 names on the
o-w-l, but in recent months the list frequently has con-
tained 80 to 100 operators' names. When an operator is
given a work order card, whether upstairs or downstairs,
he takes it to the secretary at the dispatch window, 25
who in turn writes out a referral (dispatch) slip2 6 which
the operator carries to the job where he tenders it to the
steward, who usually discards it at a later time. The
steward also checks the operator's membership card for
good standing in the Union.2 7
The contractor employing operators referred by Local
450 under the collective-bargaining agreement files a
monthly fringe reporting form for each employee with a
firm which handles the pension reports. The pension re-
porting firm in turn prepares the monthly report which
shows, by employee by month, the number of hours
worked for which contractor.
As earlier noted, business agent Johnson testified that
the exception to the referral rules for requests by name
includes the situation where a contractor may ask a busi-
ness agent to "hand pick" (and then recommend) an op-
erator who has the necessary skill and experience on cer-
tain types of equipment or work. Johnson described such
a request in which he recommended Jim Flanary and the
contractor then requested Flanary.2 8 Johnson also de-
24 The appointment of stewards, as we shall see momentarily, is a sep-
arate source for protests of discrinmination.
25 Operators coming from upstairs go to a window, whereas operators
who receive the wsork orders in the office of some business agent will
simply walk over to the dispatch secretary's desk.
26 An office clerical records some of the information on a work histo-
ry card maintained by Local 450 on each operator.
27 So testified Dean Jacka. a steward who figures prominently in one
of the allegations Lathan and Schubert gave similar testimony. Respond-
ent admits that the stewards are its agents. The parties stipulated that
Texas is a right-to-work State Notwithstanding that fact, Jim Flanary. an
operator who is sometimes a steward or foreman, testified that if an oper-
ator's book "ain't stamped up just right. you don't get to work." On this
same point, although it gets ahead of the story sequence, business manag-
er Renaud testified that it would not take long for employers in a district
of Local 450 to learn that a certain member had been expelled by the
Union and that he was a "problem." Testifying that he would not say the
employer would not hire the expelled member. neither would he say the
contractor would hire him
:" Johnson testified that, just as he has an obligation to his membership
to see that working rules are upheld. so he feels an obligation to send
competent operators in X iew of the dangerous nature of the work and the
impact they have on a job by virtue of being a service craft enabling the
other crafts to do their work. And. shen Local 450 recommends an op-
scribed about three other exceptions in situations involv-
ing retired members, members about to lose their medical
insurance because of too few hours, and members of
other districts needing a job in Houston to be near a
family member undergoing treatment in a Houston hospi-
tal. It does not appear that the privileges granted in the
foregoing humanitarian situations are the source of any
dispute.
When a job ends an operator returns to the union hall
and signs the o-w-l. The preexisting rules for placement
on the o-w-l were ratified by the membership of Local
450 on August 28, 1980, and such ratified rules read
(G.C. Exh. 5):
I. If you accepted a job and worked more than 2
days, you went to the bottom of the list.
2. When you accepted a job, a date was placed
beside your name.
3. If you were back on the third day, the dat:
was removed. If you were not back by the third
day, your name was marked off.
4. You must attend roll call on Monday morning
at 8:00 A.M. in order to retain your position on the
list or have a doctor's certificate that you were
unable to work, or you must have a card from the
Texas Employment Commission stating that you
were drawing unemployment.
5. If you accepted a job and quit for any reason,
you went to the bottom of the list.
6. If a member agreed to walk a picket line, his
name was placed at the top of the list.
7. In your By-Laws, this out of work procedure
is backed up by Article 5, Section 2, Paragraph B,
to wit:
"Failing to observe and follow customary proce-
dures and regulations concerning assignment to
work, transfer of work or reporting on 'out-of-
work' list."
The Monday rollcall referred to in rule 4 works this
way. Every Monday not a holiday Johnson, or some
other business agent, takes the o-w-l upstairs at 8 a.m. for
rollcall.2 9 The list he carries up has been typed by a sec-
retary following the rollcall made the previous week as
modified by handwritten deletions and additions occur-
ring the balance of that week. An operator who answers
is "saved" in his position on the o-w-l. If an operator
does not answer when his name is called, Johnson draws
a line through the name on the o-w-l.3 0 At the conclu-
sion, Johnson inquires whether he has missed anyone.
An operator can "save" (maintain) his position on the
o-w-l even though not present at rollcall in situations
erator, it must be careful, Johnson testified, for the Union currently is the
defendant in a damage suit in Beaumont, Texas, in which the Union al-
legedly recommended an incompetent operator. In any event, art. IV of
the collective-bargaining agreement requires Local 450 to refer "skilled
workmen" (G C Exh. 2, p 5 )
'"9 The 8 anm. weekly rollcall is not to he confused with the daily 7
a.mn job call.
:"' If the operator's signature appears toward the bottom of the list,
after his tiped name in an earlier po.sition has been scratched, it means
that he made himself available later in the week for referral.
783
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such as a car breakdown on the way to the hall or a doc-
tor's appointment. He simply explains the situation to the
business agent and has his name restored.31 Johnson tes-
tified that he simply takes the man's word. In this con-
nection, Johnson testified that the o-w-l depends largely
on the honor system for successful operation. Although
the rules do not expressly require an operator to call the
Local and report that he is working, or has worked,
more than 2 days, Johnson testified that such is expected
under the honor system. Sometimes, Johnson testified,
operators cheat the system and their brother members by
not reporting when they work more than 2 days.3 2
All an operator has to do to maintain his position on
the o-w-l, or even to move up on the list, is to be present
and answer at the Monday rollcall. Johnson testified that
this is so because an operator does not have to accept a
particular job or any job.
C. Alleged Threats by Business Agent R. L. Johnson
1. Introduction-paragraph 13 dismissed
Independent allegations of threats are alleged in com-
plaint paragraphs 12, 13, and 14(a) against business agent
R. L. "Sonny" Johnson. Paragraph 14(b) alleges that on
December 3 job steward Dean Jacka threatened and as-
saulted Lathan at the J. W. Bateson Company job be-
cause of the unfair labor practice charges Lathan had
filed in this case.
Paragraph 13 alleges that on June 29 Johnson told em-
ployee-members at Respondent's hall "that he was going
to file internal union charges against Charging Party Joel
Lathan because he had filed unfair labor practices with
the Board." As no evidence was offered in support of
this allegation, I shall dismiss paragraph 13.
2. May 25 threat at Four Seasons Hotel
a. Background of May 24
By paragraph 12 the General Counsel alleges and
argues that on May 25, 1981, Johnson threatened to
remove Lathan from the Four Seasons Hotel job of the
W. S. Bellows Construction Corporation if Lathan filed
charges with the Board as he had done in 1980. To un-
derstand and evaluate the events of May 25, we must
consider what occurred a day earlier.
It is undisputed that on May 24 Charging Party Larry
Schubert and operator Billy Wheelis drove to the jobsite
of W. S. Bellows Construction Corporation at Austin
and Lamar Streets in downtown Houston, where Bel-
lows was constructing the Four Seasons Hotel, and there
held a conversation with Lathan. 33 Schubert testified
i" Business agent Bill Barker testified that an operator who is on vaca-
tion has his position saved for him. The business agent or secretary writes
"vacation" after the operator's name on the o-w-l.
a2 Johnson also testified that in preparing for this case he discovered
other instances of operators working more than 2 days, yet their names
were not marked off the o-w-l. Presumably these instances include over-
sight by Local 450 and the operators as well as possible deliberate cheat-
ing by some operators. In this connection, it is unclear just how much
pressure is put on the operators to notify the hall when they are on a job
extending beyond 2 days. Telephoning in from the job during business
hours may not be easy for the operators.
a1' As May 24 was a Sunday. and Monday, May 25, was the Memorial
Day holiday, it would seem that the alleged date is incorrect. Because all
that because he was exasperated at seeing the backdoor-
ing he decided that he wanted to talk to Lathan, who,
Schubert had heard, knew how to file a charge with the
Labor Board. Schubert did not know where the job was
located, but his friend Billy Wheelis did know and of-
fered to drive Schubert to the site.
When Schubert and Wheelis arrived at the Four Sea-
sons Hotel jobsite they drove down to the basement
where the change shacks were located. No one was
there at the moment, but in a few minutes Operator
Foreman James Robinson walked up. 34 Schubert asked
him if Robinson could reach Lathan on the radio which
Robinson was carrying, and Robinson said that he would
try because Lathan did have one. 3 5 In their presence
Robinson made the call. Lathan, who was operating light
equipment on the job, testified that Robinson told him
over the radio that he had some visitors.3 6 When Lathan
arrived he observed Schubert, Wheelis, Robinson, and
Frank Goodwin, the job steward, standing within a few
feet of each other. Lathan knew Wheelis but was only
vaguely acquainted with Schubert. He credibly testified
that their visit was a surprise to him.
After the exchange of greetings, Lathan, Schubert, and
Wheelis walked into the operator's change shack where
they engaged in conversation. Lathan placed the time at
or about 10 a.m. The witnesses differed on the length of
the conference, with their time estimates ranging from 10
minutes to no more than 30 minutes. A time of 15 to 20
minutes would seem to be very close to the time the
three visited in their meeting.3 7
parties concede that Schubert and Wheelis did visit Lathan, apparently in
late May. I shall utilize the May 24 date herein for the purpose of con-
venience and to avoid confusion
14 The record establishes that. although the older term of "master me-
chanic" is sometimes used interchangeably with the newer term "fore-
man." the terms describe the same function or person Under the contract
a foreman operates the equipment until there are six or more operators, at
which time he performs foreman duties only. In the vernacular the
former is termed a "working foreman" and the latter is referred to as a
"walking foreman." When the total of operating engineers reaches 14 or
more "on any one job" an additional foreman, referred to as an assistant
foireman, is designated. Under sec. 20 (r) of the contract's working rules,
"The selection of craft foreman and general foreman shall be entirely the
responsibility of the employer . . Foreman and general foreman shall
take orders from individuals designated by the employer '" Robinson testi-
fied that at the time on that job he was a walking foreman.
Foreman Robinson testified that he was on the street when Schubert
and Wheelis drove up. To their inquiry about Lathan's whereabouts, he
said Lathan might be downstairs in the change shack. For several rea-
sons, including the facts that the version of Frank Goodwin. the steward,
is more consistent with Schubert's version than with Robinson's and that
both Robinson and Lathan had two-way radios which Robinson could
then have used rather than referring to the change shack. I credit Schu-
bert ih his version.
:5` I do not credit Robinson's denial that Lathan carried one. Lathan
operated about six pieces of small equipment, such as welding machines
and air compressors, scattered around and over the 30-story building and
it makes sense that he would carry one so that he could be reached in the
esetnt one of the pieces developed trouble while he was 30 floors away.
:l I do not credit Robinsotl's denial that he radioed Lathan.
a; As we shall see, business manager Renaud subsequently filed inter-
nal union charges against Lathan and Schubert for. in part, "holding
meetings on jobs and causing dissension among members" I athan pre-
ferred to describe the conference as a visit rather than a meeting The
descriptive term chosen will not control the decision herein.
784
OPERATING ENGINEERS LOCAL UNION 450
Reconstructing the events is difficult because there are
so many discrepancies, disputes, and peculiarities in the
testimony. For example, although both Lathan and Schu-
bert testified that Robinson left when Lathan came down
after being radioed by Robinson, Lathan also testified
that Robinson entered the change shack for a moment
just as Lathan and the others were sitting down. But
Schubert testified that Robinson never came in. Schu-
bert's version agrees with Robinson's because the latter
testified that he did not recall walking to the operator's
change shack. Yet the minutes of the September 24 trial
of Lathan and Schubert on internal union charges record
Robinson as testifying there that he did enter the change
shack they were in and that Lathan and the others
ceased talking until he left (G.C. Exh. 15-13, p. 2).
For some peculiar reason, both job steward Frank
Goodwin and Foreman Robinson testified that, apparent-
ly independently of the other, each had a compelling
need to get some "tools or something" from the change
shack some "15 or 20 minutes" after each had seen Schu-
bert and Wheelis drive downstairs. Goodwin testified
that he walked in, introduced himself, shook hands, and
"went on about my business."3 8 Consistent with the ver-
sion he gave at the internal union trial on September 24,
Goodwin testified that he did not overhear whatever
Lathan and the others were talking about.
Robinson testified that as he approached the door
(which Lathan admitted was left open) to the shack he
could hear what was being said because the voices were
rather loud. What caught Robinson's attention was Schu-
bert's remark that he had proof operator Lloyd Risinger
had been backdoored to a job.39 The three were "upset"
at this and discussing what they could do about it. Rob-
inson testified that he had not been noticed and that he
stepped inside the adjoining shack of the surveyors and
continued to listen. According to Robinson, the wall par-
titioning the two shacks was made of 3/4-inch plywood.
Schubert described the partition as a "solid wall," but
Lathan testified that it was made of scrap lumber and
contained such large openings that he could observe
Goodwin seated next door appearing to read a newspaper
while Lathan and the other two conversed.4 0 He specifi-
cally asserted that it was Goodwin and not Robinson in
the next room. He confirmed that anyone in the next
room could overhear what was being said in their shack.
Some of Lathan's certainty about Goodwin's presence
derives from his assertedly hearing an ironworker trying
to locate Goodwin on the radio to service their needs by
operating a crane known as a "cherry picker." This not
only supposedly occurred during the conference, but
Lathan testified he walked around to Goodwin, reported
about the call, and told Goodwin that if he did not go
he, Lathan, would do so because, as he told Goodwin,
"they have been complaining about you before, not
standing with your machine, and somebody's got to man
it. So if you are not going to go, I will go." Goodwin
:' Neither Lathan nor Schubert addressed the question of whether
Goodwin came in at any point
a'' I do not credit Schubert's denial that Risiiger sas mentioned.
40 While the descriptions (of the partition have surface inconsistency.
they are not mutually exclusive. It could easily have been made of scrap
3/4-inch plywood, an essentially solid wall, but Fsith serveral holes or
gaps in the lumbler
said he would go and he left. Thereafter Lathan, Schu-
bert, and Wheelis talked another minute or so and they
then left.
Wheelis did not testify. Schubert testified that he did
not remember a call being received over a radio, and
that he did not recall seeing anyone else around the
room at the time of the meeting, and specifically not
Goodwin. When they all walked out together he did not
see anyone around the shack, and he would have seen
anyone there.
It does not appear reasonable to suppose that if the
conference was interrupted by the radio call for Good-
win, followed by Lathan's walking around to speak to
Goodwin, Schubert would not remember such an event.
Moreover, it seems highly likely that if Lathan had ob-
served Goodwin in the adjoining room he would have
told Schubert that they should keep their voices low so
Goodwin could not overhear their conversation. Under
all the circumstances, I do not credit Lathan's testimony
on this point.
Returning now to the subject matter of the conversa-
tion, it is clear, and I find, that Schubert complained
about the backdooring going on, and that Lathan offered
his assistance in accompanying him to the NLRB to file
a charge, and told Schubert that he would need facts. I
find that Risinger's name was mentioned in connection
with the backdooring. 4'
Robinson testified that while eavesdropping he over-
heard Lathan tell the others that he had "proof" that
Local 450 was planning a barbecue for a bunch of people
from the job and that the Union intended to pay the
cost. Robinson testified that about "15 or 20" minutes
later he saw Goodwin and related what he had heard
about the backdooring and the barbecue and that he was
going to report the matter to Johnson. When Robinson
reported the details to Johnson, the latter told him not to
worry about it, and if they met again to eavesdrop and
learn what was happening. Foreman Robinson thereafter
informed job steward Goodwin of his conversation with
Johnson.
Robinson not only admitted that when he overheard
the conversation he knew that Lathan was referring to a
private party which had been held over the weekend of
May 15-17, 1981, which Local 450 did not underwrite,
but also that he so informed Johnson in his telephone
report. Robinson knew that this barbecue was different
from a "topping out" party a company has when big
construction crews finish the top floor. At the instant
trial, Robinson produced a copy of the invitation and
map (Resp. Exh. 6) which Goodwin had drawn up. He
testified that a half dozen or so copies had been laying
on the table in the change shack since about Friday, May
8. As the invitation, appearing above the map, is not ad-
dressed to anyone, it seems to be more of an announce-
ment informing everyone of the "BBQ!-Beer!-Boozer'
to be enjoyed at a certain river location over the week-
"' I do not find that anyone said he had "proof' that Risinger was
hackdoored, or that it was necessarily Schubert who made the remark
Most probably it simply was an expression of the same hitter resentment
about Risinger being backdoored that L athan expressed at the instant
trial
785
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
end of May 15-17. Robinson testified that money was
collected to pay for the cost and that Local 450 did not
pay.
Without attempting to reconcile every disputed detail
of the change shack incident, I find that what happened
when Lathan arrived downstairs and Robinson left the
area was that Robinson conferred with Goodwin4 2 and
then telephoned Johnson who instructed Robinson to
return and eavesdrop. As directed, Robinson returned
and slipped unnoticed into the surveyor's shack next
door where he surveilled the balance of the meeting of
Lathan, Schubert, and Wheelis and heard Lathan and
Schubert (apparently Wheelis only listened) complaining
to each other about the backdooring and discussing the
procedure for filing a charge with the NLRB.43
Regarding the barbecue, I find that Lathan did little
more than raise the question of whether Local 450 had
paid for some of the cost. Robinson did not testify per-
suasively on this score when he quoted Lathan as assert-
ing that I ocal 450 was "planning" a barbecue. The bar-
becue already had been held and Lathan would have
been well aware of the announcement-map by virtue of
the copies laying on the table in the change shack since
about May 8. Robinson testified that Goodwin, the job
steward, had been, in effect, the social chairman in ar-
ranging the barbecue and running off copies of the map
and he further testified that Johnson had been invited.
Renaud also testified that he was invited but did not go.
As a collection was taken up, presumably on the job, it is
most likely that Lathan would have been aware of that
fact. Even so, he could have surmised that Local 450
might end up paying part of the cost, and therefore won-
dered aloud to Schubert about such possibility in the
change shack. Lathan's expression on this point, I find,
was thereafter seized upon and distorted by Local 450
through Robinson.
Renaud conceded that people, including Robinson and
Goodwin who told him about Lathan's remarks, had
confused his barbecue parties. Whether Lathan in fact
confused them is immaterial since it is obvious that Re-
spondent was of the opinion that Lathan had confused
them.
b. The May 25 threat
Continuing with his testimonial recitation, Lathan
stated that, around 8:30 a.m. the following day while he
was tending an air compressor on the ground level, busi-
ness agenit Johnson came to the job and inquired as to
the whereabouts of Robinson. Lathan tried unsuccessful-
ly to raise Robinson on the radio. In response to ques-
tions of whether the conversation continued and whether
he remembered Johnson saying anything else, Lathan an-
swered, "No." He could not recall a single word, and
testified that Johnson left the area.
42 It is quite possible that Gooodsill was not plesenl in the basemnelt
when Lathan arrived. for only Lathan places him there. }However, it is
all ilsigniificant point.
41 On cross-examinlationl Robinson conceded that what he overheard
about the backdooring wtas a complaint that the hiring hall wa- not being
operated as they felt it should be
After a series of Respondent's objections 4 4 were over-
ruled, Lathan was prompted, in an attempt to refresh his
recollection, as to whether he recalled Johnson saying
anything about the NLRB. Still drawing a complete
blank, Lathan testified, "I don't recall." After silently
reading pages 14-15 of his pretrial affidavit of July 6,
1981, Lathan asserted that he did recall something else.
Once Lathan had refreshed his recollection, he testi-
fied that Johnson said he had heard that Schubert and
Wheelis had been there and that Lathan was going "to
start more shit with the NLRB," and that he was going
to see if he could get Lathan removed from the Four
Seasons Hotel job. Lathan told Johnson to do whatever
he wanted, but that Lathan would have to return to the
NLRB "to get them to protect me in some way." At
that point Johnson walked away. 45
For whatever reason, Johnson did not address Lath-
an's foregoing testimony, and it therefore stands unden-
ied. 46 Although Lathan's testimony on this point is un-
disputed, Respondent asserts in its brief that the record
demonstrates that Lathan is a totally unbelievable wit-
ness. In his brief the General Counsel refers to the fact
that before taking the witness stand Lathan asserted that
he was taking Tylenol to overcome a fever from the
"flu" and that he did not believe he could think clearly.
While I have no doubt that Lathan's first day of testi-
mony, given before a recess of over 2 weeks, was deliv-
ered while he was under some personal discomfort, that
lack of personal comfort did not appear to affect his abil-
ity to testify on any other matter. Accordingly, I find
that such condition had no bearing on Lathan's failure to
recall, without refreshing his recollection, the damaging
statement he attributed to Johnson.
Not lacking in imagination, the General Counsel's fol-
lowup argument is that "Lathan's inability to remember
the horrendous things said to him" by Johnson "was
caused by sheer terror at Johnson being in the Court-
room and is certainly no reflection upon Lathan's credi-
bility." That argument is unpersuasive, for Lathan never
exhibited the least amount of fright, nor does the content
of his testimony in general support the "terror" argu-
ment.
I am left with the question of whether Lathan's failure
to recall was a type of Freudian slip indicating that the
remark was never made, or whether it was just one of
those tricks the memory can play at an inopportune
moment. Resolution of the matter would perhaps be
44 Including repetitive questioning, leading, no proper predicate, and
the General Counsel impeaching his own witness and attempting to bol-
ster his witness. I advised that all circumstances would be considered in
resolving credibility.
4 ILathan was bumped from the job about May 29 when a tower crane
was temporarily placed out of service by the Bellows firm. In order to
keep the tower crane operator onl the job. Iathan was bumped to make
room for the former. The record reflects that tower crane operators are
specialists and that contractors w.ill go to great lengths to keep tower
crane operators available The General Counsel does not allege that Re-
sponldent unlawfully caused INathan's removal from the Four Seasons
Hotel job.
4' Frank Goodwin, the job steward, conceded that he saw Johnson on
the jobsitce around the time of the May 24 visit by Schubert and Wheelis,
and Foreman Robinson testified that Goodwinl told hilm he had seen
Johnsotln on the jotb tlie next day
786
OPERATING ENGINEERS LOCAL UNION 450
easier had Johnson addressed the issue during his testi-
mony.
In resolving the foregoing matter, I take note that op-
erator Bill Johnson gave testimony similar to Lathan's in-
volving a conversation with "Sonny" Johnson in Decem-
ber 1980. On that occasion, member Johnson became
upset when W. O. "Ty" Bloodworth, president of Local
450 and also a business agent, dispatched another opera-
tor to a job without calling out the job upstairs.
Member-operator Johnson lived not far from the job. He
testified that he confronted Bloodworth about it, and
that Bloodworth said that the other operator lived near
the job. Shortly afterwards, member Johnson, apparently
no relation to business agent Johnson, was dispatched to
a W. S. Bellows job across the street from the Four Sea-
sons Hotel project in downtown Houston.
That same morning after he arrived at the Bellows job
downtown, member Johnson testified, business agent
"Sonny" Johnson approached him on the job and asked
him what had happened that morning. Johnson described
the episode whereupon business agent Johnson, pointing
his finger at operator Johnson, 4 7 stated that the next
time a man went to the NLRB and filed charges on the
Local he was going to take his book away from him.
Member Johnson explained that he had no plans to say
anything about the matter and intended to overlook it
because he thought Bloodworth had been ill. The parties
stipulated that member Johnson had filed a charge
against Local 450 in Case 23-CB-2242 on January 19,
1979, which was closed by the February 20, 1979, ap-
proval of a withdrawal request, and had filed another
charge against the Local in Case 23-CB-2399 on April
17, 1980, which was dismissed by the Region on May 7,
1980.
In his own testimony, business agent Johnson did not
address the accusation of operator Johnson. He seeming-
ly did deny operator Johnson's testimony about the
"meat" being passed out downstairs with only the bone
left over for the people upstairs. Thus, he testified, "I am
disputing his words is all I am doing." While I treat that
as a denial of any backdooring, it is not a denial of the
conversation. If it was intended to be, it was ambiguous
and less persuasive than member Johnson's straightfor-
ward testimony on the December 1980 conversation.
Under all the circumstances, I credit the testimony of
Lathan and Bill Johnson as set out above. 48
47 Regarding an occasion in the coffeeroom in January 1982 when
Johnson warned Charging Party Schubert not to involve the business
agent's family in union politics. Johnson admitted that "I had my finger
pretty close to his nose" While the Johnson-Schubert matter is discussed
in more detail later, it serves here to support the credibility of member
Johnson.
4, I do not overlook Johnson's testimony that he has never denied
Lathan a job. "gotten him run off a job." or issued an order to get him
removed from a job While a denial of Lathan's accusation may be im-
plicit in such testimony, its indirect nature is insufficient to overcome the
affirmative sersion of Lathan Although lIathan's recollection had to he
refreshed from scratch, and even though I do not credit him on all as-
pects of his testimony in this case, he delivered his version of his conver-
sation with Johnson in a believable enough fashion after his memory had
been refreshed Had Johnson addressed the subject directly I might find
otherwise, but it would be idle to speculate Finally. in assessing Lathan's
credibility here, and on other points. I have taken into consideration the
entire record, including the factyor of his bitter resentment and also his
3. The death threat of July 9, 1981
Complaint paragraph 14(a) alleges that, about July 9,
R. L. "Sonny" Johnson, in his office at Respondent's
hall, instructed Lathan to keep his "mouth shut or suffer
the dire consequence of ending up dead."
According to Lathan, around July 9 as he and opera-
tor Don Smith were about to leave the union hall, John-
son motioned for Lathan to come to his office. With just
Johnson and Lathan present, Lathan initiated the conver-
sation by asking how operator Lloyd Risinger managed
to bounce from one job to the next when he was at the
bottom of the list. In obscene language, Johnson told
Lathan that it was none of his business, that he was sick
and tired of Lathan's trying to wreck the Local, and that
Lathan had better keep his mouth shut or he would end
up dead. Lathan responded that he probably was as good
a union member as Johnson or anyone. Johnson said,
"Well, we are getting ready to see how good of a
member you are."49 Lathan left.
Johnson's version is that he was late for an appoint-
ment elsewhere that morning, and, when Lathan said he
needed 2 minutes to talk with Johnson, the latter said
that was all the time he had.5 0 Lathan asked where
Lloyd Risinger had been dispatched that morning. John-
son testified that he asked Lathan why he did not just
back off and "let things go." Lathan replied that he was
not backing off because Johnson was doing wrong by
backdooring people. Johnson asked him: "Joel, why
don't you quit trying to tear the Local up? You know,
let's just knock it off." Lathan replied that he was not
seeking to tear up the Local. Johnson responded that by
all indications Lathan was seeking to do so.
Johnson told Lathan that if he had nothing else on his
mind that he, Johnson, was in a hurry. "No," Lathan re-
plied. Johnson stated, "Well, let's get out of here,"
walked Lathan to the door, and then returned to his
office to pick up his briefcase and left himself.5' There is
no express denial by Johnson that he told Lathan he
could end up dead although it might be argued that a
denial is implicit in Johnson's version.
Regarding the process of resolving credibility on this
allegation of a threat of violence, the General Counsel
points to two other incidents as lending credence to a
finding that Johnson has a propensity toward threatening
violence. These have to do with operator Bill Johnson's
description of an incident about December 5, 1981, and
an event in January 1982 described by Lathan and Schu-
bert. In both instances the witnesses quoted Johnson as
tendency to repeat loose gossip and speculation as if they were akin to
established fact.
'4 By so remarking. the General Counsel argues. Johnson telegraphed
the Union's next move and revealed "the fact that the internal union
charges were being prepared in retaliation for the unfair labor practice
charges which had been filed approximately one month before." Indeed.
the internal union charge against Lathan was filed that very day and a
copy mailed to Lathan on July 10 (G.C Exh 15).
So Johnson made it clear that a few minutes elapsed between Lathan's
request and the time Johnson signaled Lathan to come in Thus, Lathan's
testimony about Johnson motioning for him and that Lathan initiated the
conversation is consistent with Johnson's version up to this point
"' There is testimony. denied by Lathan. that Lathan remarked in the
presence of other members that he had "hbacked" Johnson down during
their conversation I credit Lathan's denial.
787
DECISIONS OF NATIONAL LABOR RELAFIONS BOARD
either forcefully or angrily stating that Schubert had an
ass whipping coming. Operator Johnson was about to
enter Sonny Johnson's office on December 5 when the
latter, in response to a question about the union trial of
Lathan and Schubert by other members then in his
office, remarked that Schubert had an ass whipping
coming as soon as he got his union book from him.
In the January 1982 incident, Lathan and Schubert
were in the coffeeroom when Johnson, already express-
ing anger at an oiler about some matter, turned on Schu-
bert and stated that he was tired of Schubert's telling the
members how much money he made and interfering with
his family life by calling and threatening his wife and
shooting holes in his car. 5 2 When Schubert said he had
done none of that, Johnson stated that Schubert had an
ass whipping coming. Johnson told Schubert to take his
friend, pointing to Lathan, to the Labor Board and file
some more charges.
Business agent Johnson did not address the specific
testimony of operator Johnson. In his version of the cof-
feeroom incident with Schubert and Lathan, Johnson tes-
tified that he had received a couple of telephone calls re-
porting that Schubert was telling members on a job that
Johnson had made in excess of $55,000 plus what he was
stealing. Johnson confirmed this by a telephone call to
one of the apprentices to whom Schubert supposedly had
made the statement. Johnson concluded that Schubert, in
arriving at the $55,000 figure, had included the earnings
of Johnson's wife, who works for Delta Air Lines. 53
That someone would involve his wife in "union politics"
made Johnson, in his words, "pretty hot."
Johnson testified that he therefore told Schubert that
because Schubert was attempting to involve his wife in
union politics he was making Schubert a solid promise:
If you involve my family in any way, I am going to
give you one of the damndest ass kickings you will
ever get in your lifetime, and don't you ever believe
that I am telling you a lie, Larry, because I am
making you a promise. And if you think I am not.
you take your friends down in the hall and go to
the Labor Board and tell them people that, because
I will tell them that.
When asked whether he put his hands on Schubert,
Johnson said he did not, "But I had my finger pretty
close to his nose."
The General Counsel argues that Johnson merely used
his wife as a convenient basis of indignation in order to
shield his vituperative conduct toward Schubert. The
52 The mention of Johnson's earnings is in referenlce to the salary, anid
possibly expenses, paid by Local 450 in the year endiig June 30, 1981
Such matters are shoswn on the financial report, Form LM-2, submitted
annually to the Department of Labor by labor organizations. In late 1981,
Lathan and Schubert, in the course of being referred by the NLRII's Re
gional Office in Houston to the Departmenl of L abor oin a particular
question, obtained a copy of Local 450's LM-2 for the )ear ending June
6, 1981 (G.C. Exh. 25). Lathan posted a copy of Ihe report on the
Union's bulletin board for all members to see. The report reflects thal in
the period covered Local 450 paid Johnson a salary of $41,311 and ex-
pense reimbursements of $10.531.
J5 At the trial Schubert demonstrated confusion over the I M-2
amounts, at one point testifying that the report showed Johnson's saliar
at $51,000 plus expenses of $10,(XX)
real reason, it is argued, for Johnson's outpouring of
"personal animus" against Schubert was because the
latter was so disloyal as to file NLRB charges against
Local 450.
While the issue is close, I accept Johnson's version of
the coffeeroom exchange, and I find that Johnson's
animus was indeed "personal." That is, it related to
Johnson's perception that Schubert was including the
earnings of Johnson's wife. I note that Schubert even at
the instant trial erroneously quoted Johnson's earnings as
exceeding $50,000. Moreover, in the December 5 com-
ment of Johnson, overheard by operator Johnson, as well
as in the coffeeroom incident, Johnson referred only to
Schubert, yet it was Lathan who posted the LM-2. Even
though Johnson may not have known which one posted
the LM-2, if he was seeking to use that as a pretextual
shield to threaten physical violence over the filing of
charges, it would seem that his threats would go to
Lathan as well as to Schubert. Under all the circum-
stances, I find that Johnson uttered the beating threats
about Schubert because Johnson perceived, whether
rightly or wrongly, that Schubert was including the
earnings of Johnson's wife in the figure Schubert sup-
posedly was quoting.
But threats of violence create an atmosphere receptive
to such conduct, and reports of such threats may not
carefully distinguish between personal disputes and dis-
putes involving rights protected by the Act. Moreover,
Johnson admittedly referred to the Labor Board in
making his threat. Reports of the incident and reference
to the Labor Board would hardly be likely to make the
fine distinctions in order to separate personal issues from
protected rights.5 4
Although these specific incidents occurred subsequent
to an incident of alleged violence against Lathan by job
steward Dean Jacka on December 3, it is clear that
threats of violence by Johnson, second in command at
Local 450, 55 are conducive to an atmosphere receptive
of violence. Such an atmosphere is unacceptable when it
involves rights protected by the Act.' 6 An example of
what can happen when such an atmosphere gets out of
control and violence becomes the master is exemplified
in the case of Iron Workers Local 433 (AGC of Califor-
nia), 228 NLRB 1420 (1977). Indeed, business manager
Renaud testified that, in the weeks when he was seeking
legal approval from counsel to file internal charges
against Lathan and Schubert, he told counsel that "this
thing" will cause a killing if it keeps on. Not once did
Renaud or Johnson describe any firm or stern message
given by them to the membership to the effect that
Lathan had a statutory right to investigate possible back-
dooring and the right to file NLRB charges and that
there should be no talk of violence. Renaud's August
1980 letter to Lathan does not qualify in this respect.
Johnson admitted that he wanted to file internal union
"' Fhe threat is not the subject of anl idependent l allcgation ill tle
cormplaint.
s: Not only is Johnson a business agent, but he also is the financial
sevcretary of the Union and the assistant business manager
O' ()f course, local authorities also have iurisdiction ovcr all Ihreats of
physical violence.
788
OPERATING ENGINEERS LOCAl UNION 450
charges against Lathan and Schubert long before they
were in fact filed, but the advice of counsel was to hold
off.
Recitation of the foregoing is not to overlook John-
son's testimony that he utilizes diplomacy in labor rela-
tions now compared to his assertion that 25 years ago in
Houston organized labor was run by "muscle." Compari-
sons are relative, however, and the search here is for as-
certaining what occurred in this case.
Returning now to the allegation that on July 9 John-
son told Lathan that he had better keep his mouth shut
or he would end up dead, I note that Johnson's version
confirms some of the account given by Lathan, with the
exception, of course, about the threat. Johnson's version
also reflects that he considered Lathan's investigation of
perceived backdooring as conduct designed to destroy
the Union. Given that attitude, and Johnson's finger-
pointing tendency, the step to threatened violence is not
a long one. In considering the demeanor of the two wit-
nesses on this point, I observed that Lathan testified
more naturally, and I credit him regarding this issue. Ac-
cordingly, I find that Respondent violated Section
8(b)(1)(A) of the Act as alleged in complaint paragraph
14(a). 57
D. The Internal Union Charges and Trials
I. Introduction
By letters dated July 9, 1981, business manager N. F.
Renaud preferred internal union charges aginst Lathan
and Schubert on the following two grounds. First, under
article XXIV, section 7(e), of the International constitu-
tion, 58 to wit:
Brother Lathan [and Schubert] violated the Consti-
tution of the International Union by holding meet-
ings on the jobs and causing dissension among mem-
bers.
Second, under the bylaws of Local 450, article V, sec-
tion 2(g),5 9 to wit:
57 I make no finding that Johnson said he would personally cause
Lathan's death As a practical matter. Johnson may have been warning
Lathan that if he did not cease his protected activities other members.
incensed over his investigation and NLRB charge, would take matters
into their own hands and kill him. the villatllon is the same whether it
was in the form of a "friendly" warning or in the blunt words described
by Lathan. Local 450's responsihilily is not to threaten I athal. but to
take firm and decisive action in preventing in atllrnsphere receptive to
expressions of threats and violence and ilm extlinguihinig firthwith the
slightest development of such an atnlosphere insofar as such relates to
members' activities protected by the Act
.s This section reads in relevant pirt i(G C Fxh 4)
Any officer (or member oi a I.oca;l Union a ho creates dissension
among the mnemhers who willfully slanders or libels an officer
or member iof the Organilation mma be disciplined, or upon trial
therefor and conviction thereof, hbe fined, luspended or expelled fiirm
his Local Union
so This section of the hylaws reads in rclcxant part (G C. Fxh 3)
Members . . .shall not slander or libel the I ocal Union, its members
or its officers No ienihbei shall be perrlitted io [at'] anly as
sembly or meeting of other nlirlhers to eiigage il aI! oIl the condlct
herinrbefore desc rihbd
Slandering the Officers and Agents of the Local
Union.
Renaud served as the prosecutor at the September 24,
1981, trials at which both Lathan and Schubert were
found guilty, fined S1,000 each, and expelled from mem-
bership. Lathan perfected his appeal to the International,
but Schubert's appeal was untimely when the original
was lost in the mail. Copies of the minutes of the trials
were received in evidence herein.6 "
Neither Lathan nor Schubert appeared at his trial.
Lathan and Schubert testified that they were told it
would be unsafe for them to attend. Supposedly, one
member had threatened to blow off their heads with a
shotgun if they appeared.
Lathan and Schubert did prepare a letter, dated Sep-
tember 24, 1981, which was read at the union trials.6 ' In
their letter, Lathan and Schubert asserted that they were
proud of their membership in the Union, but that they
felt compelled, as good union members, to obtain compli-
ance by Local 450 with the referral procedure by filing
charges with the NLRB. Quoting at length from Ren-
aud's August 1980 letter to Lathan promising that there
would be no favoritism in job referrals, and asserting that
current NLRB charges were tied to the internal union
charges, they requested that the Union postpone the
trials until the NLRB ruled. This joint request was
denied and the trials took place.
To some extent, the parties in the instant hearing, prin-
cipally the General Counsel, elicited evidence concern-
ing what matters were or were not litigated at the
Lathan-Schubert trials of September 24. Most of the wit-
nesses at those trials did not testify before me. On the
other hand, Lathan and Schubert gave testimony before
me contradicting various evidentiary matters presented at
the September 24 trials.
I find that Lathan and Schubert testified credibly
before me as to such matters. An example of such is the
testimony offered on September 24 by member Ken
Deck of Deck and Rogers that Lathan had solicited a
job and agreed to work for less than was required by the
contract. As such an allegation was not a part of the
charges brought against Lathan, the General Counsel
argues that Local 450, by offering such evidence, sought
to prejudice the voting membership and further that this
demonstrates Renaud's unlawful purpose in charging and
prosecuting Lathan. In the instant hearing, Lathan credi-
bly testified in extensive detail about his work with Deck
and Rogers and it is clear that he did not engage in solic-
iting or working outside contract conditions.
Respondent contends in its brief that the reasonable-
ness of the fines imposed is not before me. While that is
true as a general rule, the excessiveness or severity of
such a fine may nevertheless be considered in ascertain-
ing the motive, reason, and purpose for the fine. Operat-
ing Engineers Local 965 (Elcon Pipeliners), 247 NLRB
" Copies of the documents relating to the trials of t.athanl and Schu-
bert are in exidence as G C. Exhs 15 and Ih, respecxtlelx
ei There is some discrepanclv between L.alhanl a4ld Schubert concern
irig the extent to which they had help in drafting and 1iping the letter
The difference is immaterial
789
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
203, 210 (1980). In this case there is evidence that Local
450 has assessed members fines of $1,000 in the past for
conduct such as soliciting a job. Accordingly, I find that
the size of the fine itself is of no assistance in determining
whether Local 450 had an unlawful motive in filing the
charges and conducting the trials.6 2
What is before me is whether Lathan and Schubert
were charged and tried because they discussed filing
and/or filed NLRB charges against Local 450. If the
answer is yes, then, as Respondent acknowledges, the
trials must be declared a nullity and an appropriate reme-
dial order issued. Moreover, even if such a motive is not
shown, the internal union trials must be declared unlaw-
ful if the conduct of Lathan and Schubert upon which
the charges or trials are based was protected by the stat-
ute.
2. Meetings and slander
The "meetings" proved by Local 450 on September 24
consist of the Lathan-Schubert-Wheelis conference of
May 24 at the Four Seasons Hotel job6 3 and apparently
a visit by Lathan and Schubert around late May or early
June to the Morgan's Point jobsite of Bickerton Iron
Works for the purpose of checking on possible backdoor-
ing there. While at the jobsite they conversed with
member Ed Willis as part of their investigation. The re-
ferral of Willis to that jobsite is the subject of complaint
paragraph 11(f). As business agent Bill Barker testified,
Lathan and Schubert came to him after their visit and
complained about certain perceived violations of the
contract.
The details of the events of May 24-25 at the Four
Seasons Hotel job already have been discussed. At the
September 24 trials, member-foreman James Robinson, as
previously noted, testified concerning what he observed
and member-steward Frank Goodwin testified that he
saw the Lathan-Schubert-Wheelis group engage in a
meeting but that he did not overhear anything they said.
At the trial before me, business manager Renaud made
it very clear that the Four Seasons Hotel meeting was a
major, if not the principal, reason he charged and pros-
ecuted Lathan and Schubert. He also made clear that he
considered the discussion about the Union's paying for a
private barbecue as constituting prohibited slander of
Local 450 officers. Yet Renaud admitted that in the re-
ports to him about the meeting he was told that Lathan
had confused that barbecue with another. Robinson
knew that Lathan had confused the river barbecue with
the "topping out" barbecue party, yet no one bothered
to tell Lathan on May 24 or the voting membership on
September 24 that Lathan was acting from mistake and
not in bad faith.
62 As Renaud is the business manager for Local 450, the fact that he
filed the charges in his own name is an immaterial distinction, and I find
that Local 450 was the moving and responsible party for the filing of the
charges and the prosecution of the trials involving Lathan and Schubert
on September 24, 1981.
6. Robinson never cautioned L athan that the meeting was improper.
Indeed. Schubert testified that in the past he has visited operators on job-
sites from time to time without question. Accordingly. I find that the
record supports the finding. which I make, that under past practice mem-
bers may visit jobsites to speak to other members or operators insofar as
union rules are colncerned
Robinson testified before me that he did not give evi-
dence on September 24 of any slander against union offi-
cers by Lathan. I take this to mean that he did not con-
sider Lathan's barbecue remarks to constitute "slander."
But that is beside the point. Local 450 and its members
are entitled to consider anything slander so long as that
consideration is not a pretext to mask an unlawful motive
to punish Lathan and Schubert for activities protected by
the Act, and so long as they do not seek to fine Lathan
and Schubert based on conduct protected by the Act.
Actually, Robinson's testimony of giving no slander
evidence against Lathan is literally accurate. A review of
the minutes of the two trials on September 24 reveals
that Renaud, possibly through oversight, failed to elicit
the barbecue testimony at Lathan's trial. Robinson omit-
ted Lathan's barbecue remarks in his description of the
Lathan-Schubert-Wheelis meeting in testifying at Lath-
an's proceeding. It was at Schubert's trial, as shown by
the minutes, that Robinson reported Lathan's barbecue
remarks. Before Schubert was tried, however, Lathan
had been found quilty, fined, and expelled-based partly
upon Renaud's closing argument in which he contended
that Lathan had "slandered officers." He asked the mem-
bership to find Lathan guilty. They promptly did so by a
vote of 218 to 20.
The only evidence of any "slander" in the September
24 trial as to Lathan was the testimony there of members
Glen Wolcik and Frenchie Cormier that they had heard
Lathan bragging that he had "backed down" "Sonny"
Johnson.6 4 Although no clarification was given by them
at the September 24 trial, their testimony was an appar-
ent reference to the occasion of July 9 when Lathan, in
Johnson's office, asked where member Lloyd Risinger
had been referred. Johnson testified that after that inci-
dent Wolcik and Cormier told him that Lathan had made
the "backing down" comment in describing his visit with
Johnson. Lathan credibly denied the accusation before
me. However, the test is not whether I believe Lathan's
denial but whether the evidence presented on September
24 was improper. I find that it was unlawful for Re-
spondent to present it and consider it because it was
based on Lathan's protected activity of questioning John-
son about possible backdooring. Even if Lathan had
made the "backing down" comment, therefore, it would
be nothing more than protected "puffing" in describing
the result of his protected activity and meeting with
Johnson. Local 450 acted unlawfully in charging and
convicting Lathan based on such evidence. 65
There is little to be gained by examining in detail the
additional matters covered at the September 24 trials of
Lathan and Schubert. All relate to the protected conduct
of Lathan and Schubert in investigating possible back-
dooring, perceived violations of the hiring hall rules, 66
the filing of NLRB charges, or associated conduct.
64 Neither W'olcik nor Cormier testified before me Johnson testified
that Wolcik was in the hospital at the time of the trial
65 This is not to say that Lathan is free to engage in rhetoric which
might be so egregiously defamatory as to lose the Act's protection We
have none of that here.
66 An example is the visit of L athan and Schubert to a jobsite of Bick-
erton Iron Works and Lathan's telephoning Robhinson. then the foreman
of the Four Seasons Hotel job. in June 1981 to inquire how member
Lloyd Risinger had gotten hired on that project
790
OPERATING ENGINEERS LOCAL UNION 450
3. Conclusion
Although case law reflects that a union enjoys a wide
latitude in conducting internal union matters, it is equally
clear that a union may not unlawfully interfere with a
member's employment or his free access to the Board. If
Lathan and Schubert were fined because of conduct en-
gaged in by them to prevent invidious discrimination
against themselves and others in Respondent's operation
of the exclusive hiring hall, then the fines served to
coerce and restrain them and other employee-members in
their employment relationship. Moreover, as the activity
of investigating backdooring is a necessary prelude to
filing a charge with the Board, the internal union
charges and trials, if based upon such conduct, would
unlawfully impede an employee's free access to the
Board.
Based upon the findings I have made, including those
involving Johnson, and the entire record, I find that Re-
spondent's motivation in instituting the charges against
Lathan and Schubert and in subjecting them to the trials
of September 24, 1981, was because they had filed
NLRB charges against Local 450 on June 8, 1981. Ac-
cordingly, I find that Respondent violated Section
8(b)(l)(A) of the Act by the charges, trials, fines, and ex-
pulsions.
I also find that even without regard to motivation Re-
spondent violated Section 8(b)(l)(A) of the Act by insti-
tuting the charges, trying, fining, and expelling Lathan
and Schubert. Respondent's actions restrain and coerce
Lathan, Schubert, and others because it interferes with
the employment relationship by penalizing member-em-
ployees who seek to have the Union comply with the re-
ferral rules of the exclusive hiring hall. Sachs Electric
Co., 248 NLRB 669 (1980).
In light of the foregoing, I shall order Respondent to
revoke and rescind the internal union charges and trial
proceedings in their entirety as to Lathan and Schubert.
E. Job Steward Jacka Physically Assaults Lathan
Paragraph 14(b) of the amended complaint alleges that
about December 3 Respondent, through job steward
Dean Jacka, threatened and physically assaulted Lathan
because of the NLRB charges Lathan had filed earlier.
On December 1, 1981, Lathan was dispatched to J. W.
Bateson Company, Inc., at Interstate 10 and Eldridge in
Houston (G.C. Exhs. 17-12 and 10-16). The jobsite is
about 160 acres in size and it is the location for Conoco's
world headquarters. In December there were about 400
workers on the site in the process of constructing seven-
teen 3-story buildings for Conoco. Clearly it is a long-
term job.
Dean Jacka testified that he was the job steward at the
Conoco project and that he was the first operating engi-
neer on the job. He was referred to the job on July 28.
Between I and 4 months later, M. L. Jackson was desig-
nated the operator foreman. 6 7
'"i Jacka placed Jackson's designation as being about 4 months after
July 28. Ja;cksn testified that lie arrived about late August as a , orking
foremaln operatillg a crane.
Jacka testified that as steward he checked "referrals"
(the dispatch slips). He conceded that when Lathan was
referred to the job Jackson brought Lathan to Jacka so
the steward could check his union book and referral slip.
He admitted that, while he did not know Lathan person-
ally, he knew of him.
Lathan credibly testified that when he showed his
union book to Jacka the steward stated he did not know
what Lathan was doing there because Jacka had been in
a meeting just a month earlier where Lathan's book had
been taken and therefore Jacka should not let him stay
on the job. However, Jacka gave Lathan's book back to
him and the latter went to work.68
A couple of days later, on December 3, Lathan and
Jacka had an argument in the operators' change shack
around 1 p.m. when Lathan left a hole, or elevator pit,
where he had been attending water pumps and went to
the operators' change shack to put up his thermos bottle.
Jacka was there and told Lathan to get back down in the
hole. Lathan walked outside and on seeing the foreman,
Jackson, reported the matter to the foreman who, as will
be discussed later, told Lathan he had to lay him off in
any event.
According to Jacka, Lathan was drinking coffee in the
shack and Jacka merely tried to explain to him that
under the contract there were no coffeebreaks. Operators
may drink coffee at their work stations. Lathan made the
more believable witness and I credit his testimony. 69
Jacka further testified that around 3 p.m. Foreman
Jackson came to him and said that Lathan was on the
office telephone reporting to the union hall that opera-
tors on the job were telling him that Jacka was going to
run Lathan off the job. Jacka admitted that this upset
him and that he went to the office from where he called
Jackson and told the foreman to take him off the clock.
The shift ended at 3:30 p.m.
Jacka conceded that he then confronted Lathan, they
argued, and "I lost my temper" and told Lathan "I think
you need a good ass kicking." At that time they were on
a sidewalk on the outside of the fence to the project.
Lathan supposedly said, "I don't think you can do it."
They debated that subject. It ended with Lathan pur-
portedly stating that he would meet Jacka in the street
after the other men had left. Jacka testified that he re-
turned to work for 15 minutes or so. Jackson did not
recall Jacka's returning to work after the early punchout.
No timesheets or other payroll documents were offered
in evidence on this subject.
Admitting that he lost his temper because Lathan
"kept getting up in my face," Jacka reported the matter
to Johnson by telephone. Johnson reprimanded Jacka for
engaging in such conduct while a steward.
Lathan testified that after his layoff discussion with
Jackson he went to pick up his check. It was not ready
". Jacka presumably was referring to the September 24 trial, for there
is io evidence that Lathan has turtlned over his union book to the Union.
lindeed. in ies. of l.athan's appeal of his conviction, it appears that there
has been no) final change in his membership status
"i ILike lIathan. Jacka initially placed Jackson's layoff notice to Lathan
on this ,occasion shen they left the shack and met the foreman, but Jacka
suibsequently vacillated and slated that he was not sure Jackson. howev-
er, tclificd Ihat they sWere iw o esents separated by some time
791
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
so he made a 5-minute telephone call on the pay tele-
phone. In seeking to get his check after the call, Lathan
was told by the timekeeper that Jacka had picked it up
and would give it to Lathan outside the trailer-office.
When Lathan stepped outside and asked Jacka if he had
his check, the steward answered affirmatively but he said
he had some other business with Lathan first. Jacka
thereupon grabbed Lathan's lapel, hit Lathan in the
chest, and said he was "sick and tired of Lathan's god-
damn bullshit" of filing charges on the Union and "caus-
ing us a lot of trouble." 70
Lathan said he had come out there to work, not to
fight. He stated that Jacka had been backdoored to the
job and had been working steady for several months
while Lathan had to accept 1- and 2-day jobs because he
was not one of the favored few and not related to one of
the business agents. Jacka responded that backdooring
did not exist. They argued about this until they reached
the fence, at which point Jacka gave Lathan his two
checks. He told Lathan he was going to whip anyone
who filed charges against the Local and if Lathan would
wait until Jacka got off from work they would settle the
matter. Some other people came up for Jacka and
Lathan departed.
I credit Lathan who was the more persuasive witness.
Lathan's description of Jacka as being about 15 years
younger than Lathan seems accurate, and it is highly un-
likely that Lathan, in light of his head injury in February
1981 and his greater age, would have been willing to
fight Jacka. To the extent that Lathan made any remark
about fighting after the other men left, I find that it
would have been nothing more than a stall by Lathan in
attempting to escape his predicament. Notwithstanding
the possibility that a minor point or two of Jacka's ver-
sion perhaps occurred in fact, I credit Lathan's testimony
that job steward Jacka, at the very least, pulled Lathan
off the porch for the express reason that Lathan had filed
NLRB charges against Local 450 and that Jacka threat-
ened to whip anyone who filed such charges. 7 '
In light of the foregoing, I find that Respondent vio-
lated Section 8(b)(1)(A) of the Act as alleged in com-
plaint paragraph 14(b).
F. Lathan Terminated From the Conoco Job
As we saw in the previous section, on December 1,
1981, Lathan was referred to work for the J. W. Bateson
Company at the jobsite of Conoco's world headquarters.
Two days later, on December 3, Lathan was laid off by
Foreman Jackson. Complaint paragraph 10(b) alleges
that such layoff violated Section 8(b)(1)(A) and (2) of the
Act.
70 In his pretrial affidavit of December 7, 1981 (Resp. Exh. 3), dis-
cussed in more detail in the next section, Lathan asserts that Jacka
"grabbed me by the collar and pulled me off the porch." Nothing is men-
tioned about Jacka's striking him in the chest. The forceful touching, of
course, constituted a battery regardless of whether it was a mere grab-
bing or whether it included a hit.
?7 I need not resolve whether Jacka was off the clock at the time of
the incident or whether they were on or off the jobsite, for in either
event Local 450 is responsible for its steward's actions. Agents and super-
visors cannot insulate their superiors from the consequence of actions un-
dertaken during a "King's X" or time-out period.
Lathan's termination came about as a result of a work
force reduction ostensibly caused by the elimination of
one foreman's position. Lathan was bumped.
Job steward Jacka testified that in early December the
job went to three shifts for the dewartering system.
Foreman Jackson testified that he made an error in ap-
plying the contractual ratio of foremen to operators. He
testified that, once the operators reach 14, "you get an
assistant foreman." Section 15(e) of the contract's work-
ing conditions, page 38, prescribes:
When as many as fourteen (14) or more Operating
Engineers are employed on any one job, an addi-
tional Foreman shall be required.
Jackson testified that he made a "tentative" agreement
with the job superintendent that he needed another fore-
man, so Jackson requested Curtis Roberts as an assistant
foreman. 72 Jackson testified that he requested Roberts
because the latter was a good crane operator and Jack-
son saw the need for a crane operator in a few days, and,
indeed, Roberts did work on a large crane.7
The testimony of Jackson and Jacka is quite clear that
the total number of operators reached 14 on December
1. This included Roberts and Lathan on the day shift,
Bill Sowder on the second or evening shift, and Perry
Dueitt on the third, or night, shift. From that point the
testimony is hopelessly confusing for any attempt to
match names to numbers on the second and third shifts
which supposedly had two operators each. Both Jackson
and Jacka gave the names of at least one other operator,
Bobby Loomis, who seemingly came to work after
Lathan. For example, Jacka described checking the
union book of Loomis the day Lathan was terminated. In
short, one could conclude that there was a total of 16,
not 14, operators on the job. However, as Jackson testi-
fied that there was some turnover, and in the absence of
more specific evidence, I shall proceed on the basis that
the addition of Dueitt to the third shift made 14 opera-
tors.
7 4
It appears that when Roberts showed up on December
1 to be an assistant foreman the contractor, J. W. Bate-
son Company, took the position that only the day-shift
operators could be counted under the contract in deter-
mining the ratio of foremen to operators. As Roberts and
Lathan increased the day shift's total to 12, it meant, at
the least, that Roberts would not be an assistant foremen
if the contractor's interpretation prevailed.
Business manager Renaud testified that Dick Lewis, a
representative of the AGC, contacted him on the matter
and that Renaud agreed with the AGC's interpreta-
tion.7 5 Renaud dispatched business agent Lester Dennis,
72 Although the work order form of December I shows only that
Roberts was requested as an operator (GC. Exh. 6-19), the referral slip
of December 1 discloses that Roberts was dispatched as "oper. Foreman"
(G.C. Exh. 10-15).
71 Although it would appear that Roberts was to be a working fore-
man rather than a walking foreman under this description, Johnson testi-
fied that an assistant foreman is a walking foreman.
74 Dueitt's referral slip reflects that he was referred on "request" at
11:40 a.m. (G.C. Exh. 10-16; Resp Exh. 12).
7a The basis (if this interpretation is not described in the record.
792
OPERATING ENGINEERS LOCAL UNION 450
who had geographical jurisdiction, and Johnson, Ren-
aud's assistant business manager, to the job to investigate
and resolve the matter. It is unclear exactly when
Renaud received the call, for he was out of town when
he had the telephone conversation with Lewis. In any
event, it was not until shortly after noon on December 3
that Johnson and Dennis arrived at the jobsite. They
conferred in the operators' change shack with Jackson
and Jacka.
Lathan had just emerged from the elevator pit 7 6 and
was walking to the change shack to pick up his thermos
bottle when Johnson and Dennis drove by on the way to
the shack. When Lathan walked in moments later, he ex-
changed no conversation with Johnson, Dennis, Jackson,
or Jacka. On leaving the shack, Lathan overheard some
of the group's conversation. Jackson was complaining
about the "cheap" New York contractor trying to
remove Curtis Roberts from the job as an operator fore-
man.
Jackson testified that the discussion in the change
shack by the Johnson-Dennis-Jackson-Jacka group cen-
tered on cutting back the work force to meet the AGC's
position on the foreman-operator ratio.7 7 According to
Jackson, names of operators on the job were not men-
tioned, and after Johnson and Dennis left it was Jackson
alone who made the decision to lay off Lathan. No one
had suggested that Lathan be selected. Jackson then
went to Lathan, informed him of his layoff, explained the
reason, and told him that Roberts was being retained in
order to operate a crane.'78 Lathan, Jackson testified, did
not protest, and even commented that he had worked for
Roberts and that he was a fine man. Jackson admitted
that Jacka might have been present, but testified that he
thought that he had called Lathan off to the side to give
him the word. Jacka testified that he was present when
Jackson informed Lathan of his layoff and that Lathan
did indeed protest.
As earlier discussed, when Lathan left the change
shack he met Jackson and complained to him that job
steward Jacka had no business telling him what to do
and asked whether Jackson or Jacka was running the
job. We know from Jacka's testimony that the steward
followed Lathan out of the shack and gave his own ver-
sion to Jackson. Lathan credibly testified that Jackson
told him that he was running the job, and that he was
going to have to lay Lathan off. Observing that he was
not the last operator on the job, Lathan asked why he
was being laid off.7 9 Jackson replied, "Joel, you need to
76 His job was tending the pumps removing water from an elevator
pit.
77 Jacka's testimony, a little more specific, was to the same effect. He
testified that the conference lasted about 15 to 30 minutes and that John-
son and Dennis said an operator had to be laid off. Johnson did not ad-
dress this in his testimony and Dennis did not testify.
78 Although Jackson's version on direct examination implied that he
notified Lathan immediately after the group meeting, on cross-examina-
tion he asserted that it was not until nearly 2 p.m. that he gave Lathan
the news.
79 Steward Jacka acknowledged that the standard practice in a work
force reduction is to select the last operator on the job, with an exception
for an operator needed to run a specialty crane. While it is clear that
Lathan was the last operator hired for the day shift. it is equally clear
that two others. Bill Sowder and Perry Dueitt, were hired after Lathan
even though they all reached the job on December I. Lathan could not
get your business with the Union straight." Jackson went
on to explain that the cutback resulted from having to
reduce the operator force by one because a second fore-
man was not justified under the contract, and that
Lathan could pick up his check about 2:45 p.m. and
leave early.
When asked at the trial whether he made any com-
ment to Jackson when the latter told him he needed to
get his business with the Union straight, Lathan gave a
rather unnatural answer of "No." However, in his pre-
trial affidavit of December 7, 1981, Lathan recorded the
matter differently.8 0 At pages 4-5 of this affidavit given
by Lathan a mere 4 days after the event, Lathan states
that, about 5 minutes after Johnson and Dennis left,
Jackson informed him that he was being laid off.8'
Lathan asserted that Jackson had 15 operators and why
was he picking on him. Jackson replied that Lathan was
the last man to be hired in. Lathan said that "Perry
DeWitt" was the last man hired on December 1, that he
had arrived about II p.m., and that he, as Lathan, was
assigned to tending the water pumps. According to
Lathan, "Jackson said I needed to get my business
straight with the Union. I told him he knew he wasn't
doing me right. He told me to pick up my check from
the time-keeper about 10 until 3 p.m."
In view of the foregoing corroborating contents of the
affidavit, I find that Jackson did remark that Lathan
should get his business straight with the Union, and I
further find that Lathan replied that Jackson knew he
was not doing Lathan right. Although Lathan's reply
falls short of a question of what his business with the
Union had to do with his layoff, or a protest that he
should not be punished because he had filed NLRB
charges, it can be expected that someone receiving news
of his layoff will not always have the presence of mind
to marshal all his legal arguments and advance them on
the spot. It is sufficient here, however, to note that
Lathan did respond that Jackson knew he was not acting
with justice toward Lathan. The relevance of this is that
it bears upon the resolution of credibility as to whether
Lathan's version of his conversation with Jackson is the
correct one. I find that it is.
Jacka admitted that he called Johnson that afternoon
and told him that Lathan had been laid off, and he ad-
mitted being at the internal union trial in September in
which Lathan was expelled from membership. The Gen-
eral Counsel argues that Jacka, in making his call to
recall the name of Dueitt at the trial, but testified that he did give Jack-
son the name of the last man hired. In his December 7, 1981, pretrial affi-
davit (Resp. Exh. 3), Lathan records at p. 5 that he did give the name of
"Perry DeWitt."
so Although Respondent used the affidavit (Resp. Exh. 3) to identify a
letter attached to it, the affidavit itself was offered and received without
limitation. It therefore constitutes substantive evidence
aS At the trial Lathan testified that his layoff occurred about 30 min-
utes after his first visit to the shack. On his second visit, he returned to
the shack to deposit his thermos bottle. In his pretrial affidavit, he places
the departure of Johnson and Dennis at or about 12:30 p.m He does not
say whether he was watching their departure from a distance. but that is
a likely possibility. Five minutes later he returned to the shack as stated
At the trial he placed their arrival at or about 12:30 p.m and their depar-
ture as 30 minutes later. It thus appears that Lathan was consistent re-
garding his time intervals although inconsistent as to the starting and
stopping times.
793
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Johnson, simply was reporting that the termination of
Lathan had been consummated as ordered by Johnson
that day at noon. He further argues, "The demeanor of
Jacka at the trial reveals that he had sufficient animus to
see that Master Mechanic Jackson carried out the wishes
of the officials of Respondent in getting rid of Lathan."
The obvious problem with these arguments is that there
is no direct evidence that Johnson ordered Jackson to
lay off Lathan or that Jacka saw to it that Jackson imple-
mented any such order.
Jackson admitted that it is the duty of only the fore-
man to give the final paycheck to an operator, and that
neither the steward nor the timekeeper is to do so. Con-
trary to the testimony of both Lathan and Jacka, Jackson
testified he gave Lathan his final paycheck. The General
Counsel argues that the very fact that Jackson did not
give Lathan his check, in view of his knowledge that
Jacka had asked to be taken off the clock at the time the
checks were ready, demonstrates "that Jackson wished
to wash his hands of the the termination and let Jacka be
responsible to carry out the direction of Respondent."
The General Counsel argues that Jackson's testimony
that he kept Roberts rather than Lathan because Roberts
was a good crane operator begs the question since the
last operator on the job was not Lathan but Dueitt.
Jackson testified that Lathan was the last to be hired
on the day shift. When asked why he did not lay off
Sowder or Dueitt from the evening or night shift, re-
spectively, and move Lathan to replace the one laid off,
Jackson, in a rather dissembling fashion, testified, "Well,
it is just not done that way." He stated that his prime
purpose was to keep all the good crane operators, that
he would have had to wait until the third shift to lay off
Dueitt, and that he was not certain of the sequence they
were referred from the hall, although he admitted that
Sowder and Dueitt arrived on the job after Lathan.8 2
In his brief, the General Counsel argues that no layoff
was needed,83 that there is not a scrap of evidence that
the contractor ordered the layoff of an operator, and that
the Union seized upon the opportunity to punish Lathan
for his protected activities by causing him to be terminat-
ed from a long-term job.
Conclusions
The General Counsel's articulation of his theory that
Respondent caused the contractor, through Jackson, to
select Lathan for layoff for unlawful reasons relies to
some extent on circumstance and inference. There is no
direct evidence that an agent of Local 450 urged the
contractor to lay off Lathan for any reason, much less
for the reason of his protected activities. The contractor
is not a respondent here, and the fact that Jackson select-
ed Lathan rather than Dueitt for layoff seemingly falls
short of an action chargeable to the Union. Even if I find
that Jackson chose Lathan rather than Sowder or Dueitt
in order to punish Lathan for his protected activities, it
must be noted that Jackson, as the contractor's foreman,
8Z There is no contention that Lathan was deficient in his work in any
respect.
8I The basis of this statement is not articulated. A layoff of one person
would be needed if Roberts was going to be retained as the 14th opera-
tor
is not alleged to be an agent of Local 450. Aside from a
res gestae theory, therefore, Respondent would not be
charged with Jackson's remark to Lathan about getting
his business straight with the Union in the absence of
Jackson's being an agent of both Respondent and the em-
ployer-contractor. 84
As earlier noted, the change shack conference broke
up about 12:30 or I p.m. Five minutes later Lathan re-
turned to deposit his thermos bottle, and was told by
Jacka to return to the elevator pit. Stepping outside,
Lathan met Jackson.
Jackson's remark to Lathan about straightening out his
business with the Union therefore occurred about 6 min-
utes or so after the conclusion of the conference in the
change shack. I deem Jackson's remark to be competent
evidence by being part of the res gestae under Rule
803(1) of the Federal Rules of Evidence. Rule 803 de-
clares a list of matters as not falling within the hearsay
exclusionary rule, including subsection (I) on "Present
sense impression. A statement describing or explaining an
event or condition made while the declarant was per-
ceiving the event or condition, or immediately thereafter."
(Emphasis supplied.) In any event, the Board has held
that "it is not bound to apply strictly the Federal Rules
of Evidence concerning hearsay." Rubber Workers Local
878 (Goodyear Tire & Rubber Co.), 255 NLRB 251, fn. 1
(1981), citing Alvin J. Bart & Co., 236 NLRB 242 (1978).
In the circumstances of this case, there is a great deal of
circumstantial evidence supporting the reliability of this
finding.
Johnson clearly harbored animus toward Lathan be-
cause of the latter's protected activities. 85 Johnson and
Dennis concededly went to the job at noon on Decem-
ber 3 to explain to Jackson and Jacka why there could
not be a second foreman. I do not credit Jackson and
Jacka in their testimony that no names were mentioned
in the conference as to who would be laid off, and I find
that in fact they did discuss that subject and Johnson
told Jackson it should be Lathan. Not only was the de-
meanor of Jackson and Jacka unpersuasive, but to say
that the group did not say who would get the ax strains
against the natural reaction of people. Having found the
testimony of Jackson and Jacka to be false, I am author-
ized to infer, and I do, that Lathan was selected out of
the customary layoff sequence,8 6 and at the demand of
.4 Such dual agency was found in Fruin-Colnonl Corp., 227 NLRB 59
(1976), enfd. 571 F.2d 1017 (8th Cir. 1978), although one distinguishing
factor there was that the union had authority under the local contract to
appoint foremen and general foremen. The Board recognizes that in the
building and construction industry individuals may be employed as rank-
and-file workers on one job and supervisors on the next. Plumbers Local
137 (Homes Construction), 207 NLRB 359 (1973). 1 find it unnecessary
here to reach the question of dual agency.
8R I do not overlook the fact that on April 28, 1981, Johnson wrote a
"To whom it may concern" letter, at Lathan's request, stating in part that
Lathan "has worked for various contractors on various pieces of equip-
ment, and has proved to be a dependable and reliable worker." Whatever
view might be taken of that letter in April 1981, by December 1981 many
intervening events had occurred.
86 The General Counsel showed that the customary layoff sequence
was the last person hired If this custom has an exception applicable
when there is more than one shift. so that the sequence is applied on a
shift basis, Respondent had the burden of going forward and producing
evidence of that exception. This it failed to do.
794
OPERATING ENGINEERS LOCAL UNION 450
Johnson, because of his protected activities of protesting
backdooring and filing NLRB charges against Respond-
ent. General Thermo, 250 NLRB 1260, 1262 (1980); Lou-
isiana Council No. 17, AFSCME, 250 NLRB 880, 886, fn.
38 (1980).
In light of the foregoing, and the entire record, I find
that as alleged in complaint paragraph 10(b) Respondent
violated Section 8(b)(2) of the Act by causing J. W. Ba-
teson Company, Inc., to terminate Lathan from the
Conoco job on December 3, 1981.
G. The Specific Referral Allegations of Paragraph 11
1. Introduction
Complaint paragraph I1, as amended before and at the
trial, contains 35 subparagraphs, (a) through (ff), alleging
that the many (some subparagraphs cover more than one
date or referral) referrals described were made in viola-
tion of Section 8(b)(1)(A) and (2) of the Act because
they are examples of Respondent's backdooring practice.
Some of these 35 subparagraphs are grouped for discus-
sion. 8 7
2. Law applicable to paragraph 11
a. In general
Reiterating a settled rule, the Board in Operating Engi-
neers Local 460 (Ford, Bacon & Davis Construction), 262
NLRB 50, 51 (1982), stated:
The Board has held that any departure from estab-
lished exclusive hiring hall procedures which results
in a denial of employment to an applicant falls
within that class of discrimination which inherently
encourages union membership, breaches the duty of
fair representation owed to all hiring hall users, and
violates Section 8(b)(1)(A) and (2), unless the union
demonstrates that its interference with employment
was pursuant to a valid union-security clause or was
necessary to the effective performance of its repre-
sentative function.
When, therefore, the General Counsel shows such a de-
parture he has made a prima facie case, and the burden
of going forward with rebuttal evidence shifts to Re-
spondent with the General Counsel retaining the overall
burden of persuasion. Sheet Metal Workers Local 20 (Em-
ployers Assn. of Sheet Metal Workers), 253 NLRB 166, fn.
1, 169, fn. 5 (1980). The extent to which any unjustified
departure resulted in a loss of earnings is a matter to be
resolved in the compliance stage.
The foregoing principles apply to complaint paragraph
I 11 generally, and they particularly govern the analysis
which must be made regarding the Union's testimonial
explanations that apparent departures from the rules
were in fact referrals where operators had been request-
ed by name or the like. In addition to the requested by
name situations. some of the referrals made the subject of
complaint paragraph II1 pertain to an appointment of
87 There are 32 lettered subparagraphs. but at the trial par. I l(q) was
divided into four separate allegaions and designated I l(q)(l) through (4)
as shown in G C. Exh I1.
stewards. As previously noted, the referral by request
and by appointment as steward are exceptions to the re-
quirement to refer by the numerical sequence of the o-w-
I. To the extent noted later herein, whether Respondent's
practice respecting the referral system and the steward
appointment system is unlawful wvill be considered in the
discussion of complaint paragraph 10(a). Therefore,
where a subparagraph of complaint paragraph 11 is dis-
missed because it involves a referral by request, or by ap-
pointment of the steward, the evidence relating to that
subparagraph will be evaluated in the consideration of
complaint paragraph 10(a) which contains the general al-
legation of backdooring. 8s
b. Respecting appointment of stewards
The collective-bargaining agreement's working condi-
tions state in section 20(i), page 43, that "ft]he steward
shall be the representative of the Union on the job." The
same subparagraph provides:
The Steward shall be appointed by the Business
Representative from the men on the job and he
shall be the last man to be laid off, provided that in
the opinion of management, he is qualified to do the
work available.
As most of the steward appointments under review here
involve initial manning of the jobs, and in light of the ex-
clusive hiring hall arrangements with the affected em-
ployers, it seems clear that Respondent possessed the
power to appoint stewards from among the operators re-
ferred from the union hall. Moreover, business agent
Johnson testified that ordinarily the first operator dis-
patched to a job is designated the steward. As the record
amply demonstrates, Respondent frequently appoints op-
erators as stewards without regard to their numerical
standing on the o-w-l. As Respondent argues, where
there is a steward preference clause in the context of an
exclusive hiring hall, such a procedure regarding stew-
ards is not tainted by a presumption of illegality absent a
showing that the steward selections were made for rea-
sons, such as nepotism, which are arbitrary, invidious, or
irrelevant to the Union's legitimate interest of assuring
effective administration of the contract. Teamsters Local
959 (Ocean Technology), 239 NLRB 1387, 1398 (1979).
The question under complaint paragraph II in the
steward situations is whether the General Counsel estab-
lished a prima facie case that any or all such appoint-
ments were invalid because of nepotism or other invidi-
ous reasons and whether Respondent rebutted any such
showings. Whether the steward appointment practice
constitutes backdooring because of a nepotistic "buddy"
system is a matter referred to in the discussion below of
paragraph 10(a) of the complaint.
8a As noted earlier in fn. 6. in the context of an exclusive hiring hall,
"backdooring" may be defined as a union giving unlawful preference to
one or more users of the hiring hall oser other unfalvored users who.
typically because they hold a higher standinig on an out-of-work list.
should be referred first
795
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The 35 specific allegations
In his brief, the General Counsel concedes that no evi-
dence was offered for complaint paragraphs 11(d), (e),
and (s), and in its brief Respondent moves that these sub-
paragraphs be dismissed. I shall grant Respondent's
motion and dismiss these three subparagraphs.
a. Paragraph 11(a)
Paragraph I (a), as amended, alleges that on February
2 and 16 Respondent dispatched members Lloyd Ri-
singer and Curtis Roberts to work for Babcock &
Wilcox Company (B & W herein) on a turnaround job at
the ARCO refinery when Lathan and Schubert were
higher on the o-w-l.
The evidence reflects that Risinger was dispatched to
the B & W job at ARCO on February 2 as the steward
(G.C. Exh. 10-1). Risinger discovered that it was not a
turnaround, but simply was a job unloading material. He
quit that job after about 2 weeks and returned to his
former job.8 9 The job superintendent asked Risinger if
he could get a qualified operator to replace him. Risinger
recommended Curtis Roberts. Presumably the superin-
tendent accepted the recommendation and asked Risinger
to request Roberts, for Risinger testified that he did call
and request Roberts.
On the o-w-l for February 2,90 Schubert appears in
place 43 and Lathan in 48. Risinger appears between 91
and 92.9'
The General Counsel argues that Risinger was selected
for referral out of sequence because he is "an official of
the Union functioning as a delegate for District One
since 1965 and that Respondent has shown no business or
compelling reason for choosing Risinger over any other
member to be sent out as steward. Additionally, Risinger
was the Vice-Chairman of the Local."
Risinger testified that for his delegate function he re-
ceives payment equivalent in amount to 40 hours at the
rate or an operator, or about $450.92 The delegate, John-
son testified, is an elected position representing the Dis-
trict on the executive board of the Union. The vice
chairman position appears to be an unpaid one.
The work order to Curtis Roberts on February 16
(G.C. Exh. 6-4) reflects that Risinger requested him for
the ARCO job on that date. The referral slip of such
date does not show a request (G.C. Exh. 10-2).93 The
89 Risinger's testimony is confirmed by the pension report which re-
flects that he worked 80 hours that month for B & W (G.C. Exh. 26-3;
Resp. Exh. 13).
90 In their briefs, the parties refer to the o-w-l of February 2. That list,
however, was not prepared until after the 8 a.m. rollcall on Monday,
February 2, and the dispatches are made an hour earlier. Risinger re-
ceived his referral slip for the 7 :30 a.m. shift (G.C. Exh. 10-1). The differ-
ence is immaterial, however, inasmuch as the relative standings are the
same whether the list of January 26 or that of February 2 is used.
91 Through an inadvertent oversight, the General Counsel asserts at p.
16 of his brief that Risinger does not appear on the February 2 o-w-l
92 The Union's LM-2 for the year ending June 30 reflects in schedule
10 that Risinger received $1,103 for his services as a delegate. No infor-
mation is given as to whether that covered more than I week. I note that
under art. XVIII, sec. 1, of Local 450's bylaws Risinger, as a member of
the executive board, is to be paid "at least one week's paid vacation per
year."
93 The pension report reflects that Roberts worked 64 hours for B &
W in February 1981 (G.C. Exh. 26-2; Resp. Exh. 13).
General Counsel points to a referral slip of February 16
which reflects that Roberts had initially been referred to
a job for Manhattan Construction Co. as the steward
there. The slip has "Void" written across its face (G.C.
Exh. 10-2). Johnson testified that Johnson apparently did
not want the steward position at the Manhattan job.
On the o-w-l for February 16, Schubert is shown as
32, Lathan as both 33.5 and 34.5,94 and Curtis Roberts in
position 109.
As the record reflects, the standard practice of Local
450 is to select or appoint a man to be steward when
hiring for a job is first occurring. The steward, therefore,
is the first operator sent to the job. The General Counsel
argues that Risinger remained on the B & W job at
ARCO only until Roberts came out, and Risinger was
therefore steward of himself and no one else.
"This is the type of procedure," the General Counsel
argues, "which allows the Union to select their favorites
and send them to a job over and above anyone on and
off the out-of-work list. When one looks at General
Counsel's Exhibit 26-3 [the pension report for Risinger],
it is readily apparent that Risinger had worked [2] full
weeks for 80 hours for Babcock & Wilcox in February
of that same year." The General Counsel argues further
that the voiding of the February 16 referral of Roberts
to Manhattan as steward demonstrates, in part, that Re-
spondent's recordkeeping "becomes suspect and it would
appear that both Risinger and Roberts were in fact dis-
patched from the hall in violation of the Union's rules."
I find that the evidence fails to reflect any deviation
from the referral rules as alleged in paragraph I 1(a) or as
litigated. Accordingly, I shall dismiss paragraph I l(a).
b. Paragraph 11(b)
As amended at the trial, complaint paragraph I l(b) al-
leges that on March 10 member Lloyd Risinger was sent
to work for Algernon-Blair at Champion Paper Compa-
ny even though Risinger's name was not on the o-w-l. In
fact Risinger signed the list in position 66 on the o-w-l
for March 9, 1981.95 Schubert is at 20 and Lathan ap-
pears at 21.
Business agent Bill Barker testified that he received
the Algernon-Blair call about midmorning. At that time
the only person at the hall was one traveler. When Ri-
singer walked in about then, Barker designated him as
the steward and referred him to the job. Although he
had never previously designated Risinger as a steward,
Barker testified that he felt comfortable in doing so be-
cause he had known Risinger for several years, knew of
his ability, and knew that Risinger had been steward on
other jobs with no problems. The work order (G.C. Exh.
6-7) and the referral slip (G.C. Exh. 10-33) reflect that
Risinger was dispatched as the steward.
94 His name appears both before and after 34 Johnson testified that
Lathan probably worked that Monday, his name was left off the list, and
when he returned on Tuesday the secretary restored his name but appar-
ently wrote it in at an incorrect position the first time.
9s The fact that Risinger's name was not one of the 65 typed names
indicates that he was not at the March 9 rollcall. When he did come in to
register on the o-w-l, he was the first to sign. The list eventually reached
sonime 92 names on the o-w-l that week. Of course, some were referred.
796
OPERATING ENGINEERS LOCAL UNION 450
In his testimony Risinger confirmed the manner of his
appointment as steward.9 6 Risinger was the only opera-
tor who worked for Algernon-Blair. Business agent
Barker testified that there were three or four operators
on the jobsite at the time working for a subcontractor.
Member Jim Flanary testified that operators for a sub-
contractor check in with the steward for the general
contractor if he is there. Johnson testified that if the sub-
contractor is on the job first then he, Johnson, puts a
steward with the subcontractor until the general contrac-
tor arrives. Johnson's practice is to maintain a steward
on the payroll of the general contractor because of a
clause in the contract relating to subcontracting, and as
far as he knows this is consistent with the policy of
Local 450. The implication of this combined testimony is
that Risinger did have other operators to represent in his
steward capacity.
As the record reflects, Risinger is over 60 years of
age, has been a member of Local 450 since 1946, and has
extensive experience in operating heavy equipment.
The referral and pension records disclose that Schu-
bert was employed for I day of work on March 11 for
one contractor and on March 13 he was referred to
Aztec Industries for a job which lasted several weeks.
Such records show that in March 1981 Lathan worked a
total of 122 hours for a series of contractors on jobs gen-
erally lasting I to 2 days.
The General Counsel argues that the fact Risinger's
name was added at position 66, showing that it was after
the rollcall, "gives strong indication that he was added
thereto after he was selected to be 'steward' because of
his personal and professional relationship with those indi-
viduals assigning the work in question." The evidence
does not show anything improper. Accordingly, I shall
dismiss paragraph I I(b).
c. Paragraph 11(c)
Paragraph 11(c) alleges that on March 12 Local 450,
"without announcing the job at Respondent's second
floor hiring hall facility," dispatched member Gerald
Cheeney, then number 45 on the o-w-l, to a job for H.
A. Lott, Inc., in the medical center in Houston at a time
when Lathan was 16 on the list. As the referral and pen-
sion records disclose, Lathan was dispatched on March
10 for, it turned out, 4 hours of work for Philips Crane.
Lathan's place on the list was therefore "saved," for he
worked no more than 2 days. On March 13 he was re-
ferred to the McGregor Construction Company where
he worked 16 hours.
The pension record for Cheeney discloses that he
worked 121.50 hours for H. A. Lott, Inc., in March and
47 hours in April (G.C. Exh. 27-5). The work order card
(G.C. Exh. 6-8(a)) reflects that Cheeney was requested on
the Lott job by Buddy Goodwin at 7 a.m., although the
9, Risinger testified that on about 10 percent of his jobs he has been
designated and dispatched as steward and that the Algernon-Blair Job
was the last occasion of his being appointed to be a steward The pension
report reflects that Risinger worked on the Algernon-Blair job for 84 50
howrs in March, 193.50 hours in April, and 100 hours in May (G.C Exh
26-; Resp. Exh 15) While such a job, nearly 10 weeks. may not be
called "long-term." it certainly is more desirable than occasional jobs of I
to 2 days
referral slip (G.C. Exh. 10-3), signed by business agent
Lester Dennis, does not have "request" written on it. Al-
though Johnson was not the person who handled the re-
ferral and filled out the card, at the trial he identified
them and testified they reflected that Cheeney was re-
quested. Lester Dennis did not testify.
As we have seen, Schubert was number 20 on the o-w-
I and Lathan was number 21 as of Monday morning,
March 9, following the 8 a.m. rollcall (G.C. Exh. 8).
Cheeney, the exhibit reflects, was in position 61. Lathan
testified that Cheeney had not accepted a job "upstairs"
at the second floor job call the morning of March 12 and
that he saw Cheeney later downstairs receiving a union
dispatch slip between 7:30 and 8 a.m. Lathan testified
that he investigated the matter, learned that Cheeney had
gone to Lott's jobsite, and followed Cheeney there to
confirm the matter.
On brief the General Counsel argues, "The records,
therefore, in this instance establish clearly a case of back-
dooring in violation of the law. Sonny Johnson's testimo-
ny that Cheeney was called for by name should be dis-
counted in its entirety." I am unpersuaded by the Gener-
al Counsel's argument. While Local 450, to be prudent,
should endeavor to see that the referral slip, as well as
the work order, bears the word "request" or some word
so indicating, an occasional failure to achieve perfection
does not rise to the level of even a prima facie violation
of the Act. I shall dismiss paragraph 11(c) because
Cheeney was requested.
d. Paragraph I (1)
Complaint paragraph I l(f)97 alleges that during the
approximate period of May 8 to 29, 1981, Respondent
"dispatched Ed Willis and his son-in-law, a nonmember,
to the Bickerton Company at Morgan's Point, Texas de-
spite the fact that there were qualified individuals higher
on the out-of-work list which individuals were not given
an opportunity to select a job at the Bickerton Compa-
ny."
Reference has been made to this allegation earlier.
Lathan and Schubert testified concerning their visit to
the job as part of their investigating suspected backdoor-
ing.
Business agent Barker testified that the Bickerton firm
requested Ed Willis based on the fact Willis had worked
for it a couple of times in the past. The pension report
(G.C. Exh. 26-6) so records and the work history record
(G.C. Exh. 17-29) for Willis reflects one occasion in
1979. 1 find that Ed Willis was requested. The work
order of May 18 so indicates (G.C. Exh. 6-5), although
the referral slip (G.C. Exh. 10-4) of May 18, signed by
Barker or on his behalf, bears no notation indicating that
Willis was requested.98
97 A, noted at the beginning of this section. I have granted Respond-
ent's motion that pars. 11(d) and (e) be dismissed for lack of evidence.
"9 The General Counsel's argument on this subparagraph hinges, at
least in part. otn the assertion that the work order was not furnished at
the trial by the Union This is an inadvertent oversight. for the work
order is in evidence as GC. Exh 6-5 and shows that Willis was request-
ed
797
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Several days later, as shown by a work order dated
May 27, Ed Willis called requesting Roy Willis, and a re-
ferral slip of that date to Roy Willis (G.C. Exh. 10-5)
bears the notation "Request." The referral was signed by
Barker or by someone in his name. Barker testified that
Ed Willis and Roy Willis are brothers. Barker testified
further that he understood that a person referred to the
job as an oiler on permit is a son-in-law of Roy Willis.
Whether the man who was on permit is Michael F. Cook
shown on Bickerton's fringe report for May 1981 (Resp.
Exh. 18) is not clear. One Mike Cook is shown in posi-
tion 71 on the o-w-l for May 11, 1981. On the May 18
list he is shown as being referred on May 27.9 9 The
sheet of referral slips containing General Counsel's Ex-
hibit 10-5 reflects that on May 27 Mike Cook was re-
ferred to the Westheimer yard-a different job from
Bickerton's.
On the May II o-w-l Ed Willis is 69 and Roy Willis is
82. Neither name has a date after it to suggest that he
was referred, and both names are scratched, thereby indi-
cating that neither was present when that list was used
for the rollcall of Monday May 18. Neither is shown on
the May 18 o-w-l. Johnson testified that even a person
requested should be on the o-w-l to be referred. Howev-
er, Johnson testified that it is part of the "honor" system
that the operator receiving a referral be on the o-w-l and
that the business agents do not have time to check the o-
w-l to make sure the operator has signed or require him
to sign before the operator gets a referral slip on request.
As an example of how an oversight could occur, John-
son described the situation in which an operator has been
working for several days or weeks on one job which is
ending when he learns that his "buddy" is going to re-
quest him on a different job the next day. The following
morning the operator goes to the union hall to pick up
his referral slip under the "request" system, but he fails
to sign the o-w-l and the business agent (or office secre-
tary) fails to check the o-w-l. There is no evidence here
that Ed Willis had just come from another job before
taking the referral to Bickerton's.
Clearly the system failed here and there was a devi-
ation from the established referral rules in referring Ed
Willis and Roy Willis to the Bickerton job when neither
was registered on the o-w-l. No specific explanation was
offered by Respondent at the trial. Nevertheless, no one
was denied employment when Ed Willis was referred be-
cause he was sent by request. The same holds true for the
May 27 referral of Roy Willis, for Roy was requested by
his brother, Ed Willis.
Ed Willis was not shown to be the foreman on the
project, nor was it demonstrated that he was carrying
out a request of Bickerton's management. Although busi-
ness agent Barker testified that Ed Willis told him he
was being paid foreman's wages to advise supervision
where to obtain equipment and supplies, it does not
appear that Bickerton designated Willis to be foreman.
Under section 15(a) of the contract's working rules, a
contractor is not required to appoint a foreman until
there are at least four operators on the job. Barker testi-
99 Johnson testified, and the parties stipulated, that a new list was not
prepared for the Memorial Day holiday of May 25 and that the prior list,
added to, was called that week.
fied that nothing prevents a contractor from paying an
operator more than the contract requires, and, while
Local 450 "does not condone it," the Union apparently
takes no action when such occurs.
I attach no significance to the extra pay Ed Willis was
receiving because the nature of the extra money is dis-
puted, and by hearsay evidence at that. The version of
Lathan and Schubert is that Ed Willis told them the
extra money he was receiving was, in effect, to compen-
sate him for operating extra equipment so as to avoid
hiring one or two additional operators-in contravention
of the contract. I make no findings regarding this collat-
eral dispute.
Although Roy Willis was requested by his brother,
and there is no sufficient explanation of how Ed Willis
came to be the one requesting Roy Willis, the fact re-
mains that both were requested. Whether the request
system is structured along unlawful lines is a matter for
later consideration. I therefore shall dismiss paragraph
I (f).
e. Paragraphs 11(g) and (k)
I shall treat complaint paragraphs I I(g) and (k) jointly.
In paragraph 11(g) the General Counsel alleges that on
or about July 6 Respondent dropped Lathan to the
bottom of the o-w-l "after he had been on a job for por-
tions of three successive days, even though Respondent
had earlier permitted member Dennis Kemper to work
on a job in Sugarland, Texas, for approximately two
weeks without losing his standing on the out-of-work
list."
Complaint paragraph I1(k) alleges that on or about
July 8 Respondent "maintained Clyde Green as number
7 on the out-of-work list even though Green had been
working for the Bickerton Company at Morgan's Point
for the two weeks prior thereto."
On Tuesday, June 23, Lathan was referred to work for
a contractor named Spaw-Glass at Interstate 10 and Ella
Boulevard (G.C. Exh. 17-12). He testified that he
worked the first day, was rained out the second day (al-
though he either worked 4 hours or received 4 hours'
pay), worked the third day, and was rained out the
fourth day, although again he worked 4 hours. On the
morning of the fourth day, which would have been
Friday, June 26, Lathan went to the hall and discovered
that his name, typed at position 43 on the o-w-l of June
23, had been scratched. The date of June 23 appears
beside his name, as does the notation "worked 2 1/2
days."'0 0° ° Lathan's name also appears in handwriting at
number 74 followed by the notation "(Saved R.L.J.)."
This obscure notation, unexplained at the trial, evidently
did not mean that Lathan's place at 43 was to be saved,
for Lathan's name is typed at position 63 on the very
next o-w-l of June 29.1° ' By Monday, July 6, Lathan
had moved up to number 53.
"'O Under the referral rules, the operator loses his place on the o-s-l
once he works over 2 days.
'01 From which he was referred on July 2. As the date is marked
through, it means that the job lasted no more than 2 days. Lathan's work
history record discloses that on July 2 he w.as referrcd to work fol the
('Corfillued
798
OPERATING ENGINEERS LOCAL UNION 450
Lathan asked Johnson why his name had been taken
off the list since he had not worked 3 days. Johnson re-
plied: "Well, you are watching us, so we are going to
watch you." Lathan said that the Union was letting
other people ride the list when they were working, and
he named Clyde Green as an example.
Green, Lathan told Johnson, had "vacation" by his
name on the o-w-l yet he was working for Bickerton
Iron Works at Morgan's Point.'0 2 Questions to Lathan
about the o-w-I of June 15 showing Clyde Green's name
appear irrelevant, for it is clear from the o-w-l and
Green's work history card (G.C. Exh. 17-7) that he was
referred for no more than I or 2 days on June 10 and
again on June 26. On Monday, June 29, Green was re-
ferred on request (of Ed Willis) to Bickerton Iron Works
at Barbour's Cut-not Morgan's Point-as the work
order (G.C. Exh. 6-10) and referral slip (G.C. Exh. 10-7)
show.
On the o-w-l for the week of June 29, Green's name
appears at position 8 followed by three notations. The
first seems to be a date which is blotted out. The second
notation, appearing above the blotted out date, is the
date of "6-29." The third notation reads "vacation 2
weeks." Lathan is 63 on this list. On the o-w-l for July 6,
the typed name of Green has been scratched. Under the
scratch one can read the word "(Vacation.)" Beginning
on June 29, and for 140 hours thereafter, or about 3.5
weeks, Green worked for Bickerton Iron Works, and his
name should not have been typed on the o-w-l of July 6
with the notation of "vacation."
Business agents Barker and Johnson conceded that a
mistake was made in maintaining Green on the list as
being on vacation and that he should have been
scratched. Barker admitted that Lathan called this fact to
his attention on July 6. Barker had just returned from a
2-week vacation. After checking on the matter, he
scratched through Green's name.
The evidence shows nothing more than an oversight
regarding Green by Respondent's agent and secretaries-
accompanied by Green's failure to notify the Local that
his name should be scratched.
Lathan's pretrial affidavit of July 6 (Resp. Exh. 4) re-
veals what complaint paragraph I I(g) no doubt is actual-
ly based on. At page 16-17 Lathan records:
I last worked on 6/30 for 8 hrs. and 7/1 and 2 for 4
hrs. each because we were rained out. Today I was
dropped to the bottom of the list. I had been #42
when I went to the Spaw-Glass job at Ella & 610.
At first I questioned Sonny about being dropped to
the bottom of the list. He said that they were
watching me just like I was watching them. I re-
minded him that Dennis Kemper had worked at
Sugar Land for about 2 weeks and didn't lost his
Spaw-Glass firm at 1400 Allen Parkway-a location different from Inter-
state 10 and Ella. The work order card and referral slip issued to Lathan
for this assignment are not in evidence
102 Lathan could not recall the circumstances when he complained to
Johnson about Dennis Kemper, and was uncertain whether it was
Kemper or Green he mentioned on this occasion to Johnson. In any
event, the evidence offered in support of the "on or about July 6" allega-
tion is that based upon the conversation of June 26 with Johnson.
standing on the list. Sonny didn't deny it and they
do it all the time.
Neither the trial nor pretrial mention of Lathan being
dropped to the bottom of the list makes sense. The trial
version possibly could be a reference to the o-w-l of
June 22 where his typed name at 43 is scratched and
written in at 74 with Johnson's "saved" notation. If so,
the timing does not match that of the pretrial affidavit of
July 6 which describes an event occurring that very day
concerning one Dennis Kemper. If the affidavit version
is correct, it fails to accord with the o-w-l of either June
29 or July 6, for Lathan's typed name is not scratched
from either list and it is not written in among the hand-
written names on either list.
I conclude that the evidence, as presented, is insuffi-
cient to support paragraph 11(g), and I shall dismiss it.
Respecting paragraph I 1(k) the General Counsel
argues on brief:
The gist of the violation is the fact that, as set forth
in the argument above under subparagraph (g), the
Union was making a special effort to watch Lathan
because he had filed charges with the Board and
was apparently making no effort to police the hiring
hall procedures insofar as anyone else [was] con-
cerned. We submit, therefore, that the Union, under
the circumstances, was culpable for permitting
Green to remain on the list after he had been dis-
patched by them to Bickerton and it is no defense
to assert that Green was merely trying to pull a fast
one.
This argument relies to a large extent on the testimony
of Lathan that Johnson said, "[W]e are going to watch
you." Lathan's uncontradicted testimony regarding John-
son's "we are going to watch you" remark, if credited,
would be relevant on the issue of Respondent's animus
and motivation toward Lathan. Lathan's demeanor was
not unpersuasive on the matter, and it could well be that
at some point in that general time frame Johnson did
make such a statement. However, due process would
seem to require more accuracy in the corroborating facts
than we have here. Especially is this so where the evi-
dence departs more than a little from the facts alleged in
the complaint. Under all the circumstances, I find that
the testimony of Lathan attributing the "we are going to
watch you" remark to Johnson, although uncontradicted
by Johnson at the trial, is rendered unreliable by positive
discrepancies in the contextual facts. I therefore shall not
rely upon this remark in assessing Respondent's motiva-
tion toward Lathan.
There is no evidence that Green "pulled a fast one" by
deliberately failing to remind the Local to scratch his
name. And certainly there is no evidence that he sought
to cheat by returning to the hall after 3 days of work
and securing another referral based on the high standing
which should have been scratched on the third day.
Under all the circumstances, I also shall dismiss para-
graph 11(k) on the basis that the deviation regarding
Green was credibly explained as a mistake by Respond-
ent. Respondent's mistake, not evidencing a pattern of
799
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
negligence, does not rise to a violation of the Act even if
Lathan or others had lost employment by virtue of
Green's name remaining on the o-w-I. In any event, it
has not been shown that this oversight caused anyone to
be denied a referral.
f. Paragraphs 11(h) and (i)
Paragraphs 11(h) and (i) will be treated jointly. The
General Counsel alleges in complaint paragraph I11(h)
that on or about June 22 Respondent permitted members
Lloyd Risinger and Curtis Roberts to maintain their
standing on the o-w-l "even though they failed to show
up for roll call and Roberts was actually working for an
employer through the hiring hall at that time."
In paragraph 11(i) it is alleged that on or about July 6
Respondent permitted members Risinger and Roberts to
remain on the o-w-l "even though they were not present
for roll call and at a time when Curtis Roberts was
working for the American Bridge Company at the
United States Steel mill in Bayton, Texas."
Lathan testified that, as he recalled, on the two succes-
sive rollcalls the Mondays of June 22 and July 6 (of
course June 29 was an intervening Monday) neither Ri-
singer nor Roberts answered when his name was called,
yet his name was not removed. Lathan protested to busi-
ness agent Barker, and told him that Roberts was being
permitted to ride the o-w-l even while working for
American Bridge. Barker said he would look into Lath-
an's allegation. Lathan later observed that Roberts' name
had been scratched, but he was uncertain whether Ri-
singer's name had been marked off. Neither Barker, Ri-
singer, nor Roberts addressed the foregoing subject in
their testimony.
We should recall that the list actually used at the
Monday rollcall is that from the previous week. On the
June 15 o-w-l, Lathan is at place 52, Risinger at 56, and
Roberts at 70. This general sequence was carried for-
ward to the June 22 list where Lathan is shown at 43,
Risinger at 47, and Roberts at 57.
None of the three is shown on the June 15 list as
having been referred, but the June 22 o-w-l bears the no-
tations of "6-23" and "worked 2 1/2 days" previously
discussed regarding Lathan. Risinger's name has the date
of June 23 after it and a line is drawn through both the
name and the date-indicating that he worked more than
2 days on the job he was referred to on June 23 and was
therefore marked off the list.'03 Roberts' name is marked
through-indicating that he did not answer at rollcall.
The mark-out can also indicate that he worked more
than 2 days if, by mistake, a referral date has not been
placed after his name.
Notwithstanding the fact that Roberts' name was
marked through on the June 22 list, he did not lose his
standing on the o-w-l, for he appears in position 46 on
the list of June 29. Risinger's name appropriately does
not appear on the June 29 o-w-l. The date of June 29 is
entered after Roberts' name on the June 29 list and his
'0:1 The work order (G.C. Exh. 6-9) and the referral slip (G.C. Exh.
10-6) reflect that Risinger was requested to the Four Seasons Hotel job.
Risinger testified that James Robinson, the foreman, requested him HIis
pension report (G.C. Exh. 26-23) confirms his testimony that he worked
for about 10 months on that job.
typed name at position 46 is scratched, indicating that he
worked more than 2 days on his June 29 referral.' 0 4 As
earlier noted, Lathan, at position 63 on the June 29 o-w-
1, received a referral for I or 2 days on July 2 to a Spaw-
Glass job. Therefore, if Respondent improperly carried
Roberts' standing to the June 29 list, it worked to the
disadvantage of Lathan and other employees.
On the July 6 o-w-l Lathan appears at position 53, but
Risinger's name is not shown. While Roberts' name is
not one of those typed, he did sign the list at position 88.
He could have signed as late as Friday, July 10. Thereaf-
ter, a line was drawn through his name. Normally the
85.50 hours would represent 2 weeks of work, for the
contract discourages overtime work except where neces-
sary. 0
While not all of Lathan's testimony or description is
supported by the evidence, the record shows that, after
scratching Roberts from the June 22 list for (apparently)
failure to answer the rollcall, Respondent typed his name
in position 46 on the June 29 o-w-l even though Roberts
had not signed at the bottom of the June 22 list. It was
improper for Local 450 to carry Roberts' name onto the
June 29 list, even maintaining his standing, in the absence
of a legitimate basis for doing so.10 6 Respondent offered
no explanation. Accordingly, I find that Local 450 vio-
lated Section 8(b)(l)(A) and (2) of the Act by this devi-
ation from the established hiring hall rules as alleged in
complaint paragraph 11(h) respecting Roberts. Whether
Lathan is entitled to any backpay, and the amount of
such, shall be determined in the compliance stage. 07
I shall dismiss paragraph I I(i). While there is no expla-
nation about how Roberts would have been in a position
to sign the o-w-l, or have his name written in, while he
was working for American Bridge, there is no showing
that the appearance of his name at position 88 on the o-
w-l of July 6 worked to the detriment of any other oper-
ator that week, for only four others signed in after
him. 108
g. Paragraph 11(j)
Complaint paragraph 11 (j) alleges that on or about
July 8 Respondent, "without announcing the job at Re-
"04 I find that the referral was to the American Bridge Division of
U.S. Steel in accordance with his work history card (G.C. Exh. 17-23)
and his pension report (G.C. Exh 26-2) as well as the o-w-l notation. Al-
though the months were sliced off the work history card in the photoco-
pying process, the remaining date of "29-81," in conjunction with the
pensionl report showing that Roberts worked 85.50 hours for American
Bridge in July plus Lathan's testimony, supports this findingg The pension
reports frequently record hours as falling in the next month when the re-
ferral is at the end of the previous month The work order and referral
slip were not offered in evidence. Thus, if they reflect that Roberts was
requested, the record evidence does not show it
I0s Sec. 20(x) of the working rules, p. 47, provides, "Where unusual
circumstances demand overtime, such overtime will be kept at a mini-
mum"
106 There is no testimony that Roberts' position was "saved" because
he had car trouble or some other recognized excuse.
107 The compliance investigation should obtain and review all the
medical and insurance records in determining whether Lathan in fact was
available for work
'°O On the o-w-l for July 13, he is typed in at position 85 and was
referred on July 20. A total of 105 names are typed or signed on the July
13 list, and several of those appearing after Roberts did not obtain refer-
rals.
800
OPERATING ENGINEERS OCA. UNION 450
spondent's second floor hiring hall facility, dispatched a
member named Rigsby to a job for Manhattan Construc-
tion Company in the 18000 block of Memorial Drive in
Houston, Texas even though Rigsby was number 55 on
the out-of-work list and Charging Party Joel Lathan was
number 53 on the list." The o-w-l referred to is that for
July 6 and the position numbers are as alleged.
At page 19 of his brief the General Counsel acknowl-
edges the referral records disclose that H. D. Rigsby was
requested for the job to which he was referred on July 8,
and he concedes that he is "unable to sustain the burden
to show that Rigsby was not requested specifically for
the job and therefore the evidence is insufficient to
reveal that the Union did other than follow its standard
operating procedures."
Lathan was not referred that week. He testified that
on July 8 he observed "Tom" Rigsby, following the up-
stairs job call, come out of the back room with a dispatch
slip in his hand. It is not clear that "Tom" Rigsby is H.
D. Rigsby. While the two may well be the same, I shall
dismiss this paragraph, and I shall not consider the evi-
dence here in discussing the request system under para-
graph 10(a).
h. Paragraph 11(1)
In paragraph 11(1), the General Counsel alleges that on
or about July 23 Respondent backdoored Curtis Roberts,
then number 88 on the o-w-l, "to a job at the Weber
Drilling Company on the H. C. Beck Company job
across from the Four Seasons Hotel in downtown Hous-
ton, Texas," at a time when Lathan was 52 on the list.
Lathan testified that a little before the 7 a.m. job call
on Thursday, July 23, he observed Curtis Roberts obtain-
ing a dispatch (referral) slip at the dispatcher's desk.
Lathan's name is written in at position 35.5 on the July
20 o-w-l, and Roberts' name is typed at place 46.0 ° 9 The
date of July 20 appears after Roberts' name, and then a
line has been drawn through both-indicating that Rob-
erts worked more than 2 days. Johnson testified that
Roberts was referred on July 20 to work for Weber
Drilling Company, a company which has changed its
name to Three D Drilling, Inc.
The General Counsel's various arguments on this alle-
gation are misplaced apparently because of certain inad-
vertent oversights. He thus contends, at page 20 of his
brief, that the July 20 o-w-l does not contain Roberts'
name. Yet it does, at position 46.110 While the General
Counsel appears to contend that Respondent offered no
explanation for its referring Roberts ahead of Lathan, 1
o09 The numbers set forth in the complaint allegation almost conform
to the positions shown on the o-w-l of July 6 where Lathan's name is
typed as number 53 and Roberts' is written at position 88. Lathan moved
up to 44 and Roberts to 85 on the July 13 list.
10 Inadvertent oversights such as these make it easier to appreciate
the task facing Local 450. Occasional mistakes by the Union are bound to
occur when processing so many people and in attempting to keep the
various records cross-checked for accuracy.
I i i The referral and pension records show that Lathan was referred to
a series of I-day jobs that week, but that his first referral was not made
until July 22, whereas Roberts was referred on Monday, July 20
in fact Johnson testified that he designated Roberts as
the job steward. Johnson did not modify this testimony
when the General Counsel showed him the referral book
(G.C. Exh. 7-3) containing a carbon copy of the referral
slip. If the slip did not support Johnson's testimony, pre-
sumably the General Counsel would have offered the
document as an exhibit.
Based on the foregoing, I shall dismiss paragraph 11(1).
i. Paragraphs 11(m) and (a)
By paragraph 11(m) the General Counsel alleges that
during the week of July 13 Respondent "allowed
member Mike Tolopka to work for three days at a job
for Miner-Dederick Construction Corp. at the 5000 block
of Richmond in Houston, Texas, without removing his
name from the out-of-work list."
Treated with the foregoing allegation is paragraph
11(o) in which the General Counsel alleges that on or
about July 24 Respondent "dispatched member Mike To-
lopka, Jr. to a job for H. A. Lott, Inc., on Westheimer
Street in Houston, Texas, at a time when Tolopka should
have been on the bottom of the out-of-work list because
he had just worked four days for the Miner-Dederick
Construction Corp. at the 5000 block of Richmond."
Paragraph I I(m) involves another request and I would
dismiss the allegation without further ado but for one de-
ficiency. Number 50 on the July 13 o-w-l, Mike Tolopka,
Jr.,'' 2 was referred on July 14 to Miner-Dederick. He
worked there 3 days and his name, contrary to the alle-
gation in paragraph I I(m), was marked out, as Johnson
testified. When he was referred on Friday, July 17, it
was by the request of Buddy Goodwin as shown by the
work order (G.C. Exh. 6-1!), the referral slip (G.C. Exh.
10-8), and Johnson's testimony. Johnson identified Buddy
Goodwin as Lott's general foreman.
The date of July 24 alleged in paragraph 11(o) is in-
correct, and in support of this allegation the General
Counsel relies on the evidence pertaining to the July 17
referral described above.
The one deficiency I mentioned earlier is the fact that
Tolopka did not sign in at the bottom of the July 13 o-
w-l the morning of July 17 before accepting the dispatch
from business agent Barker reflecting that Tolopka was
requested on the H. A. Lott job for the 7 a.m. shift that
day. This appears to be another oversight situation. At
the same time, the effect of such oversights on those op-
erators waiting hopefully at the upstairs job call must be
considered, particularly as referral by request and by
steward appointment is not announced upstairs-a pro-
cess which can only breed suspicion, distrust, and dissen-
sion. "3 The problems are compounded where, as here,
the operator referred is not even registered on the o-w-l.
As described elsewhere herein, Johnson testified that
an operator who has been working over 2 days and
I I His name is correctly spelled as shown. There in only one Tolopka
involved in the evidence, Mike Tolopka. Jr.. notwithstanding that the
complaint erroneously names his father who, Johnson testified, is also a
member of Local 450
i": Lathan testified that "quite a few members" watch through the ve-
netian blinds covering the dispatcher's window and observe the business
agents giving out dispatch slips in the morning before the 7 a.m. job call.
801
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whose job is ending may be informed by a friend that
the friend will request the operator the next day. 14 The
operator goes to the union hall the next morning to pick
up his "request" referral slip.
Johnson testified that the operator is expected to sign
the o-w-l when he comes in under the "honor" system,
"and if I had to check for every man . . . and make sure
that he signed it, that is the only thing I would have time
to do. I couldn't answer the phone or nothing else." At
another point Johnson testified:
But we have much more important jobs to do than
to police that out-of-work list. We have grievance
procedures; we have problems on jobs; we have
safety problems on jobs. We can't just sit there and
police that out-of-work list. That is why we try to
ask our members, you know, to be honest with us,
tell us what is going on with this out-of-work list.
Johnson further testified that other than Mondays
"there is only one business agent in that office in the
mornings as a rule. The rest of them are out on their
jobs."
The secretary who does dispatching, Eddie Carter, ar-
rives about 7 a.m. Between 6 and 7 a.m., Johnson testi-
fied, the business agent on duty takes the work orders
and dispatches (issues referral slips) to the operators on
request who wish to leave early in order to beat the
Houston traffic. With possibly a few exceptions, the re-
quests are distributed downstairs and are not called out
upstairs on the second floor where the 7 a.m. calls are
handled because Johnson, as he testified, does not define
a request as a job order.
In evaluating this allegation, it should be noted that
Lathan described Tolopka as a member who normally
receives his jobs at the upstairs job calls. This is a factor
supporting a finding of good-faith oversight.
Under the applicable law set forth in the quotation
from Operating Engineers Local 406 (Ford, Bacon & Davis
Construction), 262 NLRB 50, respondent must show that
"any departure from established exclusive hiring hall
procedures which results in a denial of employment to an
applicant . . . was necessary to the effective perform-
ance of its representative function." As Tolopka was re-
ferred on request, there was no denial of employment to
Lathan or any other operator, and Tolopka's failure to
sign at the bottom of the July 13 o-w-l before accepting
the referral appears to be but a good-faith oversight. I
therefore shall dismiss paragraphs I (m) and (o).
j. Paragraph 11(n)
Paragraph 11(n) alleges that on or about July 24 Re-
spondent "permitted Bill Wheelis to remain on the out-
of-work list, even though he had worked for three days
for the McGregor Construction Company at a job on
Weslayan at U.S. Highway 59."
Wheelis was referred twice the week of July 20 when
he was number 18 on the o-w-l. As he worked only 2
days from his July 20 referral his place was saved and he
was referred on Wednesday, July 22, to work for
i 14 Johnson testified that the operators appear to do a lot of telephon-
ing at night but that such is not considered "soliciting" a job.
McGregor as alleged. As the pension report does not list
that referral (G.C. Exh. 26-10), the exhibits do not show
the hours or days Wheelis worked on the job. However,
Johnson testified that Wheelis worked the 3 days of
Wednesday through Friday. There is no dispute that his
name should have been marked off the o-w-l of July 20.
It was not. Consequently, he was carried over to the
new o-w-l of July 27 in position 15. There are 59 typed
names on that list, with Lathan being number 30, and an
additional 21 signed names, making a total of 80. If
Wheelis had gone to the bottom of the o-w-l on Friday
afternoon or Monday morning, it is obvious that he
would have been far below Lathan and others on the
July 20 o-w-l.
How did Wheelis' name not get marked off the July
20 list? The only explanation appears in the testimony of
Johnson who gave seemingly contradictory versions. In
one version he explained that Wheelis later advised him
that he had telephoned Eddie Carter, the dispatcher, on
Friday afternoon (July 24) telling her that he was
through with his job and to put him back on the list.
Carter, in this explanation, understood Wheelis to say
that he had worked only 2 days, so she "saved" his
place. 15
In his other explanation, Johnson asserted that this is
an example of where Wheelis, as some others have done,
beat the system by lying to and cheating his brother-
members. The implication in this position is that Wheelis
deliberately told Carter that he had worked only 2 days
when he in fact had worked 3 days. The later version
seems more logical, for there is no evidence that Whee-
lis, in accepting a referral the next week from position
15, announced that there must be some mistake in that he
had lost his standing on the o-w-l of July 20 by working
the 3 days of Wednesday through Friday. Instead, he
took a referral on July 30 from position 15 while many
below him were never referred that week. 16
In his brief the General Counsel contends that Re-
spondent cannot escape responsibility for the violation
by blaming Wheelis. For its part, Respondent does blame
Wheelis, and contends that Lathan's testimonial descrip-
tion of Wheelis as a friend of his disproves the general
allegations of Lathan and Schubert "that the Union af-
forded preferential treatment to the friends and relatives
of the Business Agent." 117
In evaluating this allegation, I note Lathan's testimony
that Wheelis receives his jobs upstairs. Furthermore, I
find that the failure to mark through Wheelis' name on
Friday, July 24, did not result from any improper action
by Local 450. Accordingly, I shall dismiss paragraph
1 l(n).
I" The July 20 o-w-l shows the typed name of Wheelis not marked
out, reflects that the two referral dates of July 20 and 22 are scratched.
and has "(Saved)" after the marked out dates.
"6 It is not clear why he waited until Thursday to accept a job. Even
Lathan was referred earlier that week to a series of short jobs. Neverthe-
less. we must recall that an operator does not have to accept a job.
Wheelis could have been out of the hall most of the week following the
Monday rollcall. Such an inquiry is immaterial in ally event.
I" Although Lathan did testify that Wheelis is a friend, he also ac-
cused Wheelis again of riding the o-w-l, while working. even as Lathan
testified. Indirectly, of course, Lathan was accusing l.ocal 45(0 of permit
ting Wheelis to ride the o-w-l. This additional matter Xwas not litigaled
802
OPERATING ENGINEERS LOCAL UNION 450
k. Paragraph I (p)
Paragraph I I(p) alleges that on or about July 27 or 28
Respondent, "without announcing the job at the Re-
spondent's second floor hiring hall facility, dispatched
member Dick Moore, whose name was near the bottom
of the out-of-work list," at a time when Lathan was
"considerably higher than Moore on the list."
There are 59 typed names on the o-w-l of July 27.
Lathan is shown as 30 and Moore as 36. Both were re-
ferred on July 27. Lathan was referred to a series of
short jobs that week, whereas Moore's job lasted longer
than 2 days because his name is marked off the list. Al-
though the work order card for Moore is not in evi-
dence, the referral slip is (G.C. Exh. 10-24), and it re-
flects that Moore was referred at 7:35 a.m. on "Request"
to C.M.G. at Texas and Milam Streets. The dispatch slip
is signed by Lester Dennis. Moore's work history record
(G.C. Exh. 17-16) reflects that he was referred to C.M.A.
at Texas and Milam Streets. As neither this contractor,
nor that for his August 17 referral, is shown on Moore's
pension report (G.C. Exh. 26-11), it may be that the
hours he worked for these contractors were not report-
ed.118 The 128 hours shown for July and the 95.50 hours
reported for August are for contractor number 203
which, according to the pension report for June 1981, is
Turner Construction Co.
There is virtually no other evidence on this allegation.
Lathan merely testified that on July 27 he observed
Moore's name near the bottom of the list, and that he did
not recall whether Moore's name had been marked off
later. Although there is no direct evidence that Respond-
ent failed to announce the specific job upstairs that
Moore received at C.M.A. (or C.M.G.), I infer, and find,
that it was not announced upstairs. This is based on
Johnson's testimony that requests are not announced up-
stairs. Lathan's referral slip reflects that he was not dis-
patched on July 27 until 9:30 a.m. (G.C. Exh. 10-25), and
that was to a i-day job, for the o-w-l reflects that he was
referred again on July 28, and a third time on August 3.
The pension report also discloses that the first job was
for 8 hours.
Relying on the fact that R. W. "Dick" Moore is John-
son's brother-in-law, 19 the General Counsel argues,
"Though certainly not conclusive, this type of disparity
in the length of job assignments reflects on the ability of
the Union to control a member's wages by sending him
to either long term or short term jobs."
Contending that no evidence was submitted in support
of this averment, Respondent moves that the allegation
be dismissed.
Although Moore is Johnson's brother-in-law, the evi-
dence reflects that Moore was requested. In accordance
with the Union's normal procedure involving any re-
quest, it dispatched Moore without reference to his
standing on the o-w-l. I therefore shall dismiss paragraph
I l(p).
"i It also is possible that hours worked for a suhcontractor are ,ome-
times listed under the general contractor's name
' 9 Johnson testified that his sister is married to Dick Moore
I. Paragraph 11(q)
Noted earlier is the fact that at the trial complaint
paragraph I I(q) was divided into four subsections (G.C.
Exh. 11).
In paragraph I l(q)(l) the General Counsel alleges that
on or about July 27, 1981, Respondent dispatched
member M. F. "Buddy" Moseley to the Miner-Dederick
Co. "without announcing the job at Respondent's second
floor hiring hall facility." The work order itself (G.C.
Exh. 6-16) shows that Moseley was referred to be an
oiler for I day. His pension report shows he worked 8
hours for Miner-Dederick in July (G.C. Exh. 26-12).
Lloyd Risinger and James Robinson testified that
oilers are the apprenticeship classification. Under article
VII of the contract, apprentices receive less pay than op-.
erating engineers, as do oilers. It is not clear from the
collective-bargaining agreement that oilers and appren-
tices are one and the same, for they are referred to inde-
pendently in that document.' 20
As we have seen, Lathan was in position 30 on the o-
w-l of July 27. M. F. Moseley was at 54. Moseley was
referred three times that week, and Lathan twice. John-
son testified that the oilers are called from a separate list,
and the referral lists (G.C. Exh. 8) so reflect. This lends
support to a finding that the oilers do receive less pay
than operators.
The General Counsel's theory on this allegation is un-
clear, and I shall dismiss paragraph I l(q)(l).
Paragraphs I l(q)(2), (3), and (4) will be treated togeth-
er to some extent. In all these subparagraphs the General
Counsel alleges that on or about July 28 Respondent dis-
patched three different members to jobs "without an-
nouncing the job at Respondent's second floor hiring hall
facility." Paragraph l1(qX2 ) alleges that M. F. "Buddy"
Moseley was dispatched to Turner Construction Compa-
ny; l1(q)( 3) alleges that Dea:l Jacka went to the J. W.
Bateson job; and I l(q)(4) asserts that Curtis Roberts was
sent to a B. B. Weber job.
Lathan testified that about this time he observed Mose-
ley, Jacka, and Glen Wolcik coming from the back of the
(first floor) dispatch office before 7 a.m. with referral
slips in their hands.' 2' Lathan asked dispatcher Carter
about the matter and she told him that Jacka had been
requested at J. W. Bateson,' 22 and Wolcik had been re-
12o Also, under the wage article, light equipment operators earn a
lower rate than do heavy equipment operators Lathan frequently oper-
ates light equipment. However. A. Frank Goodwin testified that, by
virtue of a certain arrangement on grouping of equipment, a light equip-
ment operator draws the same pay as a heavy equipment operator
"' The referral slips, identified momentarily. bear the notations that
they were issued between 7: 10 and 7 15 a m.
122 Both the %work order card (GC. Exh. 6-34) and the dispatch slip
(G C Fxh 10-25) reseal that Jacka was requested Johnson testified that
John Ellis. ',hovnl as making the request. was not a member of Local 450
and apparently was part of Bateson's management
803
DECISIONS OF NATIONAL I.ABOR RELATIONS BOARD
quested at Weber Drilling,"2 3 but he could not recall
what she said about Moseley. 124
It appears that Lathan worked as much as, or even
more than, either Moseley or Wolcik that week. Jacka is
a different matter. His work at J. W. Bateson at Dairy
Ashford Road and Interstate 10 in Houston is the
Conoco jobsite that Lathan was referred to in December
where Jacka was steward. Jacka testified that he was the
first operator on the Conoco job and that he was the
designated steward.
I shall dismiss subparagraphs I l(q)(2) and (3) because
Moseley and Jacka were requested. Respecting I l(q)(4),
there is no explanation in the record of how Curtis Rob-
erts, while the job steward, requested an operator. Rob-
erts gave no explanation when he testified. Actually,
Roberts denied that he was the steward on the job,
saying that another man was the steward.' 25 There is no
evidence that Roberts was the foreman, or that he was
calling on behalf of the foreman or on behalf of a
member of management. While that fact may indicate a
discrepancy of some kind, the evidence adduced in sup-
port of the allegations litigated fails to establish that
Lathan or any operator was improperly denied employ-
ment through the actions of Local 450. Accordingly, I
shall dismiss paragraph I l(q) in its entirety.
m. Paragraph 11(r)
As amended at the trial, paragraph 11(r) alleges that
on or about July 14, "without announcing the job at the
Respondent's second floor hiring hall facility," Respond-
ent "dispatched member Fred Tillery to a job for the H.
C. Beck Company at San Felipe and Loop 610 in Hous-
ton, Texas, at a time when Tillery was lower on the out-
of-work list than was charging party Joel Lathan."
On the July 13 o-w-l, Lathan appears at position 44
and F. R. Tillery at 90. As the list reflects, Lathan was
referred to jobs on July 14,126 16, and 17, and F. R. Til-
lery was referred on July 14. Lathan was unable to recall
the details pertaining to this allegation. 27"?
The work order card (G.C. Exh. 6-14) for Tillery's job
reflects that the call was not received from the H.C.B.
representative until 8 a.m. on July 14. 28 Tillery was dis-
123 The work order card (G C. Exh. 6-35) discloses that Curtis Rob-
erts requested Wolcik on the Weber job for I day, and the referral slip
shows that Wolcik was requested (G C. Exh. 10-25). Johnson testified
that Roberts had been referred to the same job on July 20 as the steward
Roberts, however, denied that he was the steward on that job. Complaint
par. I l(q)(4) erroneously has Roberts rather than Wolcik as the operator
referred on July 28.
124 The work order reflects that a Turner Construction Co. represent-
ative requested "Buddy" Moseley for a I-day job (G.C. Exh. 6-33), al-
though the referral slip fails to reflect that Moseley was requested (G C.
Exh. 10-25). Johnson testified that "Buddy" is the nickname of M. F. Mo-
seley.
125 As earlier noted, sec. 20(v), p. 47. of the contract provides that
stewards "shall exercise no supervisory functions."
'28 Although the o-w-l shows July 14, the referral slip in evidence re-
flects July 15 (G.C. Exh. 10-10).
127 That fact is noted simply as part of the summary. As I stated at the
hearing, it is unlikely that any witness could recall all the referral dates.
jobs, standing sequences, and similar items involved in the many allega-
tions.
a28 Johnson testified that H.C.B. is the new name of H. C Beck Corm-
pany.
patched at 8:35 a.m. according to the referral slip (G.C.
Exh. 10-11). Thus, this job could not have been an-
nounced at the 7 a.m. job call on July 14 because Re-
spondent did not yet have the order. There is no evi-
dence concerning how the job order was filled, and busi-
ness agent Lester Dennis, who signed the referral slip,
possibly went looking for someone in the hall. Lathan
did not testify that he was present at the hall between 8
and 8:35 a.m. on July 14. Accordingly, I shall dismiss
paragraph 1 l(r). 12 9
n. Paragraph 11(t)
Paragraph I (t) alleges that on or about November 20,
1981, Respondent bypassed Schubert "who was No. 17"
on the o-w-l and dispatched Dick Moore and William
Moore "to the J.A. Jones job at Post Oak and West Ala-
bama in Houston, Texas at a time when neither of the
Moores was on the out-of-work list."
On the November 16 o-w-I Schubert is written in at
position 58, W. M. Moore is written in at 60 and again at
83, and Dick Moore is written in at 71.'30 Schubert's
name has no referral date and is not marked through,
and the same is true for W. M. Moore's name at position
83. However, W. M. Moore at 60 and Dick Moore at 71
are lined through with no referral dates.
Lathan testified that he was referred on November 20
to anl overtime job involving a concrete pour at the J. A.
Jones project, and that he worked with William Moore
on the job.t'" Lathan testified that the job William
Moore took was not called out at the 7 a.m. job call
when Lathan claimed his own job. The referral slip to
W. M. Moore, showing that he was requested for refer-
ral to Baker Concrete, is dated November 19 (G.C. Exh.
10-13). However, the job or work order card, showing
that W. M. Moore was requested, is not dated until No-
vember 20 (G.C. Exh. 6-17).'32 Moore's work history
record reflects that he was referred to Baker Concrete
on November 20 (G.C. Exh. 17-15). It therefore appears
that the date of November 19 was inscribed rather than
November 20 by virtue of an inadvertent oversight.
The November 20 work order card (G.C. Exh. 6-18)
and referral slip (G.C. Exh. 10-14) of the same date to
Dick Moore reflect that he was sent to the same jobsite
on request by Pat Cook of Hercules Concrete Pumping
Company as a foreman. Johnson testified that Cook, an
assistant to the owner of Hercules, is not a member of
Local 450.
Schubert testified that, pursuant to a telephone call
from Lathan, he went to the jobsite where he met Wil-
I"' It will be recalled that I have granted Respondent's motion to dis-
miss par. I I(s) for lack of evidence.
30o There are 56 typed names, with Lathan being number 15. His name
is not scratched and there is no referral date after his name. In fact. as we
shall see. Lathan was referred on November 20 to the job in question.
':" ILathan's work history record shows that he wsas referred to Baker
Concrete Co. on November 20, 1981 ((iC. Exh. 17-12) The job order
card and referral slip for Lathan to this job are not in evidence.
:12 Johnson testified that "Tiody," who called in the request for W. M.
M(oore, is a member of Local 450, and Johnson was uncertain whether
Tody was the steward or the foreman but he was one or the other. As
the job fell under the territorial jurisdiction of Lester Dennis, Johnson
%vas testifying from information gathered in his investigation of the alle-
gatioln
804
OPERATING ENGINEERS LOCAL UNION 450
liam Moore and saw Dick Moore working on the job. 3 3
Schubert testified that he did not get a job on November
20. The o-w-l for that week, with no date shown after
his name, and his work history record (G.C. Exh. 17-25)
confirm the fact that Schubert was not referred that
week to any job.
This allegation, therefore, is simply another one in-
volving requests. Based upon Local 450's procedure of
not announcing jobs upstairs for which requests have
been made, as confirmed by Lathan's testimony regard-
ing the November 20 job call, I find that the two re-
quests-jobs involved here were not announced upstairs,
and that they in fact were claimed downstairs. 134
According, I shall dismiss paragraph 1(t).
o. Paragraph 11(u)
Paragraph 11(u) alleges that on or about December I
Respondent dispatched Curtis Roberts to J. W. Bateson
Company at Interstate 10 and Eldridge in Houston when
Roberts was number 90 on the o-w-l, "thereby bypassing
others with greater seniority on the list."
The November 30 o-w-l has 78 typed names. Hand-
written names bring the total for that week to 105.'35
Lathan first appears at position 14, with the date of "12-
1" and "Save" after his name with his name and the no-
tations being marked out.'336 Schubert appears at posi-
tion 39 with no referral date after his name, and his name
remains unscratched-indicating that he was not referred
that week.
Curtis Roberts appears as number 71 with the date of
"12-1" after his name and both thereafter scratched.
Lathan's handwritten name, apparently inscribed on his
return from the Conoco jobsite, is at position 97.'13
The pertinent work order of December I reflects that
M. L. Jackson requested Roberts for an operator position
(G.C. Exh. 6-19). We know that Jackson was the opera-
tor foreman on the job. This leads back to the matter of
Jackson believing that with 14 operators on three shifts
he was entitled to an assistant foreman. Roberts was to
be the assistant foreman, and his December I referral
slip, signed by Lester Dennis, reflects that he was dis-
patched as an operator foreman (G.C. Exh. 10-15).138
13' Lathan testified that he did not think the two Moore's are related.
"s4 All jobs are dispatched downstairs. The difference is that jobs not
on request must be claimed at the 7 a.m. upstairs job call, whereas the
job orders on requests are distributed downstairs and the requested opera-
tor walks the job order over to the dispatcher's desk and secures his re-
ferral slip, frequently before 7 a.m., if the operator wants to beat the
Houston traffic rush.
1't When the signing process involves an operator who has been on a
job over 2 days but less than a full week, it means that the 105 total, as
here in the case of Lathan, contains the same individual twice.
t36 We know from the earlier discussion of complaint par. IO(b), alleg-
ing that Respondent unlawfully caused Lathan to be terminated from the
Conoco job, that Lathan was referred to work for the J. W. Bateson
Company at the Conoco jobsite on Tuesday, December 1, 1981. and that
he was terminated from the job on his third day there, Thursday, Decem-
ber 3, 1981.
L37 The reference in the complaint allegation to number 90 is an inad-
vertent error.
"Is The General Counsel argues that the different job descriptions on
the work order and referral slip, plus the position standing on the o-w-l,
prove that "the Union violated 8(bXIXA) and (2) of the Act by dispatch-
ing Curtis Roberts on December 1, 1981."
Jackson also testified that he rquested Roberts because
he knew that Roberts was a good crane operator and
that Jackson could see that within a few days he would
need a crane operator. Jackson and Dean Jacka testified
that Roberts worked a few days on the job Lathan was
terminated from,'3 9 and then Jackson assigned Roberts
to operate a 150-ton' 4 0 crane with a boom of 230 feet.
Lathan testified that because of his head injury in Febru-
ary 1981, resulting in some dizziness and loss of equilibri-
um when he looks up, he has avoided jobs on cranes
having long booms such as this one.
As Curtis Roberts was referred on request, I shall dis-
miss this allegation.
p. Paragraphs I1(v) and (w)
Paragraphs 11(v) and (w) shall be considered together.
Paragraph 11(v) alleges that on or about January 21,
1982, Respondent "referred C.J. Wilson and W.R. Bur-
nett to a shut-down job being performed by Babcock &
Wilcox for Arco Refining at a lime when Charging
Party Lathan was No. 40 and Charging Party Schubert
was No. 25 on the out-of-work list and Burnett was
lower in standing."
The position numbers alleged are not quite accurate.
The January 17, 1982,14' o-w-l has 76 typed names, with
signed names bringing the total to 92 or more (some are
interlined). C. J. Wilson is number 22, Schubert is 25, W.
R. Burnett is at 38, and Lathan is in place 49. Wilson is
marked through with no date. Schubert has "Save" after
his name. Burnett, with no date, is marked through, and
Lathan's name, as with Schubert's unmarked one, has
"Saved" noted after it.
Paragraph 11(w) alleges that after January 21, 1982,
Respondent referred additional operators, including
"Dale H. Oldham," to the B & W job at ARCO when
"all or most of whom were of lower standing" on the o-
w-l than either Lathan or Schubert. The "Dale H.
Oldham" apparently is a reference to Doyle Oldham
who is 92, or the ultimate position, on the January 17
list.
The evidence discloses that on January 11, 1982, Bur-
nett was referred to B & W at ARCO as the steward
(G.C. Exh. 10-17). There is no explanation for the pres-
ence of his name on the January 17 o-w-l. Indeed, John-
son testified, and the work order card (G.C. Exh. 6-21)
reflects, that it was Burnett who called on January 25 re-
questing C. J. Wilson on the B & W job at ARCO.
Wilson was referred on this request (G.C. Exh. 10-18).
On January 27, 1982, Doyle Oldham was referred
from position 65 on the o-w-l of January 25. The work
l"9 Presumably Jackson knew, as Johnson testified, that an assistant
foreman is a walking foreman. Jackson's full intentions on this were not
fully developed at the hearing, and Jackson perhaps actually planned for
Roberts to operate a crane despite the fact he could or would be a walk-
ing foreman The record is not entirely clear as to what Roberts did on
the job before Lathan's termination, but he apparently served as a walk-
ing foreman. Dean Jacka. the job steward, testified that Roberts came out
as the assistant foreman, and that when Roberts took over Lathan's job
he left the position of "walking assistant foreman."
'14 The tonnage refers to the lifting capacity. Jackson testified.
141 As January 17, 1982, was a Sunday. the typist obviously should
have used the date of January 18. 1982. To avoid confusion, however. I
shall use the date of January 17 1982.
805
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
order card shows that he was requested by C. J. Wilson
on that date at the B & W job (G.C. Exh. 6-22), and the
referral slip shows that he was dispatched by request to
that job (G.C. Exh. 10-19). Johnson testified that Wilson
was the operator foreman when he made the request.
The General Counsel describes the requests and refer-
ral sequence here as a "bootstrapping" technique where-
by Respondent manned the job through its handpicked
steward. Thus, "by doing by indirection that which it
would be precluded from doing by direction," Respond-
ent is "in violation of the Act." To the extent the "hand-
picked" contention is an argument that Respondent's
steward appointment system is inherently discriminatory
because it enables the Union to man jobs on the basis of
nepotism or other arbitrary considerations, I find later
herein that such a broad attack was neither alleged in the
complaint nor litigated at the hearing. The General
Counsel has not shown that the requests here, even that
by the steward, violate the established referral proce-
dures. Moreover, I note that Wilson actually was higher
on the January 17, 1982, o-w-l than either Lathan or
Schubert, Burnett had been on the job since January 11
as the steward, and Oldham was requested by Wilson. I
shall dismiss paragraph 11(v). I also shall dismiss para-
graph I 1(w) to the extent I do not find merit in that alle-
gation in the discussion which follows.
q. Paragraphs 11(w) and (x)
Bearing on allegations in paragraphs 11(w) and (x) is
Lathan's testimony that about mid-January 1982 he went
to business agent Barker and volunteered for picket duty
at Houston Export and Crating Company. He testified
that he already had served picket duty of I week there
some 3 to 4 weeks earlier, and that on this occasion in
January 1982 he walked picket for the 3 days of Wednes-
day-Friday.' 4 2 Local 450, Lathan explained at the trial,
has a standing rule whereby anyone who walks picket is
placed at the top of the o-w-l for I week. Rule 6 of the
referral rules, quoted earlier, recites:
6. If a member agreed to walk a picket line, his
name was placed at the top of the list.
The picket list, Lathan testified, is a separate document
from the regular out-of-work list.
The following Monday Lathan noticed that his name
was not read from the picket list at the 7 a.m. job call.
Afterwards he went to Barker and asked him what had
happened to the picket list. Barker replied, "Well, we
took it down." Lathan inquired whether the Union had
removed the list in order to keep him from going on the
B & W shutdown job.'43 Barker denied the assertion,
saying simply that as the picketing was over the picket
list had been taken down. Persisting in his effort, Lathan
removed the referral rules'4 4 from the bulletin board
142 Presumably these were the dates of January 13, 14, and 15, 1982,
for Lathan's work history card and pension report reflect that he was not
working at this time. He was number 60 on the January 11, 1982, o-w-I,
49 on the January 17, 1982, list, and 40 on the January 25 list
143 Lathan testified that on shutdown jobs operators work 60 hours a
week rather than 40. In short, an operator is paid 20 hours at the over-
time rate.
144 In his testimony, Lathan erroneously called them the bylaws.
and showed them (rule 6) to Barker. Barker responded
that Local 450 could take the picket list down at any
time the business agents chose to do so. That apparently
ended the conversation. Business agent Barker did not
address the foregoing during his own testimony.
There is one operator, Ronnie Daniel, who was re-
ferred on January 27 whose name does not appear on the
o-w-l of January 25, 1982. On that list Lathan is 40 and
Schubert is 23. It appears that Lathan and Schubert were
referred on January 28 for I or 2 days to the Lefco yard.
Schubert was referred on February 1 to D. L. Ryan
where he worked for 74 hours. The referral records do
not disclose that Daniel was requested (G.C. Exhs. 6-23,
10-19, and 17-4), and there is no testimony that he was
requested. His pension report reflects that he worked
189.50 hours for B & W in February (G.C. Exh. 26-25).
After 120 hours at Self Pay he returned to B & W where
he worked 228 hours in March and, by the closing date
of the exhibit, another 156 hours in April. It is possible,
even likely, that Daniel's return to B & W was based on
the fact he was referred there on January 27, 1982-
when he was not even on the o-w-l but at a time when
Schubert and Lathan were. The referral of Daniel rather
than Schubert or Lathan, in the absence of a legitimate
reason, violated Section 8(b)(1)(A) and (2) of the Act as
alleged in paragraph 11(w).
Respondent referred several operators to the B & W
job on February 1, 1982, with only a couple being re-
quested. Lathan was not sent there despite his standing at
position 35 on the regular o-w-l of February 1. The
others, however, held a higher standing than Lathan.
Thus, Gary Popham was 5, Kenneth Putnam was 10,
Homer Pierce was 20.5, and L. W. Hinsley was 22.
From the list of Monday, February 15, 1982, the General
Counsel proved that W. D. Davis and A. W. Norris
were referred to the B & W job whereas neither Lathan
nor Schubert was referred there. Yet Davis at 23 and
Norris at 64 were higher than Schubert at 65 and Lathan
at 7 9.i45
In paragraph I1(x) the General Counsel alleges that
Respondent violated the Act by abolishing the picket list
"on or about February 8, 1982," which list would have
accorded preference in referrals to Lathan and others.
The problem with this allegation is that it varies signifi-
cantly from the evidence. Lathan testified about picket-
ing in mid-January. The referrals of Popham, Putnam,
Pierce, Hinsley, Davis, and Norris (none of whom was
requested) occurred in February. Under the picket list
rule, Lathan would have gone to the top of the January
17 o-w-l for I week only. By removing the picket list on
or after January 25, Barker acted properly. Accordingly,
I shall dismiss paragraph I(x). t 46
4, As is obvious, "higher" and "lower" are just the reverse of the
numbers. To have a "high" standing on the o-w-l is to be near the top of
the list with a low number. High standing, as Lathan explained, "doesn't
pay any of your bills," and is useful only as a means of obtaining a long-
term job.
i"" There is no picket list in evidence for the week beginning Monday,
January 11, 1982, or the weeks thereafter. There is a picket list attached
to the o-w-I of December 21, 1981, but Lathan's name is not included
among the 17 operators listed. Two names have the date of "1-4" after
Continued
806
OPERATING ENGINEERS LOCAL UNION 450
r. Paragraphs 11(y) and (z)
Paragraphs I1(y) and (z) are related. The former al-
leges that on or about February 10, 1982, Respondent re-
ferred Jim Flanary to T & R Contractors, Inc., at the
Linbeck jobsite at Louisiana and Pease Streets in Hous-
ton, Texas, when Flanary "was two names below Charg-
ing Party Lathan on the out-of-work list."
Paragraph Il(z) alleges that on or about February 15,
1982, Respondent maintained Jim Flanary's name on the
o-w-l "even though he had been dispatched to the job
for T & R Contractors, Inc., on February 10, 1982, and
worked a sufficient number of days thereafter to require
his name to be removed from the said list in accordance
with the standard operating procedures of Respondent's
hiring hall."
The o-w-l of February 8, 1982, shows Lathan at posi-
tion 28 with his name lined out followed by the date of
"2-10." His work history card and the previous o-w-I re-
flect that he was referred on Monday, February 8, also.
Flanary is in position 45 with a line drawn through his
name. On February 10 Lathan was referred to the same
T & R Contractors job (G.C. Exh. 17-12) to which Flan-
ary had been referred the day before (G.C. Exhs. 6-36
and 10-26).
At the trial Johnson credibly explained, as earlier
noted, the context in which Flanary was referred to the
job by request after Johnson had recommended Flanary
to the contractor's representative.
The General Counsel argues that there is no evidence
establishing Flanary to be any better at operating the
equipment on the job than was Lathan,' 47 "and the se-
lection of Flanary was thus an arbitrary one in violation
of the hiring hall procedures and contrary to the Act."
Lathan testified that he observed the equipment Flan-
ary was operating and that he, Lathan, could operate it
and also the 75-S.
Aside from the question of whether a business agent
may recommend one operator over another, it appears
from Lathan's work history card and his pension report
that he worked 2 days for Miner-Turner beginning Feb-
ruary 8, 1982. Thus, he was working on February 9
when Flanary was referred to the job in question. As
Lathan was not out of work at the time Flanary was re-
ferred by Ty Bloodworth, Local 450's president who
also serves as a business agent, I shall dismiss paragraph
I (y).
Despite the extensive testimony covering paragraph
I l(z), the crux of the matter is simply that Flanary's
name was not marked off the o-w-l of February 8, 1982,
until Barker did so as he was calling the 8 a.m. roll on
Monday, February 15, when he observed it there, yet
Lathan's name was marked off before rollcall when Flan-
them, and it therefore appears that the list was used in early January 1982
as well as mid-December 1981. In the absence of testimony by Barker
contradicting Lathan, I find that the absence of Lathan's name from the
picket list in evidence and the absence of a mid-January 1982 picket list
do not establish that no such picket list ever existed or that Lathan never
served picket duty in either December 1981 or January 1982. I have
credited Lathan's testimony that he did so serve.
i47 Johnson testified that the contractor explained that he wanted an
operator who could operate the new tractor, known as a 75-S, on a slope.
It is undisputed that the 75-S was not on the job and regular equipment
was used,
ary told Barker that Lathan had worked over 2 days the
previous week. Barker admitted that he scratched Lath-
an's name from position 28 and entered it (at number
102) at the bottom.
Lathan testified that he had complained to Barker
about Flanary's name after Lathan discovered that his
own name had been scratched. He further testified that
Flanary's name was not marked off the list until after
rollcall, and that his displeasure goes to the disparate
manner in which the situation was handled.
I credit Barker on this issue and I shall dismiss para-
graph ll(z).
s. Paragraph 11(aa)
Paragraph Il(aa) alleges that on or about March 29,
1982, Respondent referred Dick Moore to work for
Gotell Foundation Company in Houston when Lathan
was 52 on the o-w-l "and Moore was No. 80 or lower on
that list."
Aside from the fact that Moore was requested on the
job in question (G.C. Exh. 6-37), the allegation does not
match the evidence, for Moore was number 70 on the o-
w-l of March 22 whereas Lathan was 104. s I shall dis-
miss this paragraph.
t. Paragraph 11(bb)
As amended at the trial, paragraph 1 l(bb) alleges that
on or about March 22, 1982, Respondent "referred
Charles Haak to the Chicago Bridge and Iron Company
job at Crown Refinery at a time when Charging Party
Lathan was No. 70 on the out-of-work list and Haak was
not even registered on the said list." At 7 a.m. on
Monday, March 22, 1982, Charles Haak was referred to
C.B.&I. at the Crown refinery (G.C. Exhs. 6-38 and 10-
27). The referral date appears after his name on the
March 15 o-w-l and his name is marked out at position
7 6 .149 Lathan is number 44 on that list, and his name
also is marked out with his last referral date shown to be
March 15.
The General Counsel argues that "there is no evidence
that Lathan was not available for the job on March 22,
which was preferentially afforded to Haak." But there is
such evidence. Lathan's work history card (G.C. Exh.
17-12) reflects that he was referred on March 16 to
Ebasco and his pension report (G.C. Exh. 6-4) discloses
that in March 1982 he worked 109.75 hours for Ebasco
Services, Inc. Lathan is shown at number 104 on the
March 22, 1982, o-w-l, which could indicate that he
started to work at Ebasco on Tuesday, March 16, and
worked the rest of that week and most of the next before
completing his job there and signing the March 22 list at
number 104. That list has 79 typed names and handwrit-
ten names bring the total to 115.' 5°
148 The relative positions are substantially the same even if the March
29 list is used where Moore is 63 and 70 and Lathan is 113.
149 As the referral was made before the rollcall of March 22, the
March 15 list is the correct one.
'10 It appears that frequently the handwritten names are not the signa-
tures of the operator but instead are the handwriting of the dispatcher or
other secretary at Local 450.
807
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As it appears that Lathan was working for Ebasco
when Haak was referred to C.B.&I., I shall dismiss this
allegation.
u. Paragraph lI(cc)
Paragraph I I(cc) alleges that on or about April 5,
1982, Respondent "referred Grant Miller to a job, the
name and location of which are presently unknown to
the Regional Director but well known to Respondent, at
a time when Miller was No. 80 or below on the out-of-
work list and Charging Party Lathan was No. 75 on the
said list."
The General Counsel concedes that Miller was re-
quested for this job and that "there would be no viola-
tion of the hiring hall procedure even though Lathan
was high on the out-of-work list at the time." While I
shall dismiss this allegation, I do so not on the basis that
a request was involved, but on the basis that, while
Lathan is shown in position 72, Miller appears at position
67.5. There is no evidence that his name, so interlined
between typed names, is not properly there. As Miller
held a higher standing on the list, he appropriately was
referred ahead of Lathan. I therefore shall dismiss para-
graph lI(cc).
v. Paragraph 11(dd)
Paragraph 11(dd) alleges that on or about April 19,
1982, Respondent "dispatched John Alexander, who was
No. 92 on the out-of-work list, and Ed Rohrback who
was No. 94 thereon, at a time when Charging Party
Lathan was No. 62 on the said list."
The o-w-l of April 12, 1982, reflects that Lathan is 51,
Alexander 91, and Rohrback number 92. Alexander was
requested on his job. However, the referral records do
not reflect that Rohrback was requested (G.C. Exhs. 6-
21 and 10-32). Rohrback was referred on April 15, 1982.
His pension record (G.C. Exh. 26-27) shows that in April
he apparently worked on two different jobs for Turner
Construction Company, at one for 85.50 hours and at the
second for 22.50 hours. The evidence shows that Lathan
was available and qualified for referral on April 15 to the
job Rohrback received.
Respondent offered no justification for this bypassing
of Lathan. Accordingly, I find that Respondent violated
Section 8(b)(1)(A) and (2) in bypassing Lathan on April
15, 1982. The backpay, if any, due Lathan shall be deter-
mined in the compliance stage. The allegation is dis-
missed as to Alexander.
w. Paragraphs 11(ee) and (f.9
Paragraph 1l(ee) alleges that on or about April 21,
1982, Respondent "unlawfully solicited Martin Rodri-
quez of Timmins Equipment Company to write a letter
requesting that Charging Party Lathan not be referred to
Timmins' job at the Houston Oil Show even though nei-
ther Respondent nor Timmins Equipment Company had
just cause to deny employment to Charging Party
Lathan."
Paragraph I (ff) is closely related to the foregoing al-
legation and in this final subsection of paragraph 11 the
General Counsel alleges that on or about April 22, 1982,
Respondent, "by its agent Lester Dennis, refused to send
Charging Party Lathan to the Houston Oil Show job for
Timmins Equipment Company on the basis of the letter
referred to in subparagraph (ee), immediately above."
Business agent Johnson testified that on either June 19
or 20 he received a letter from Timmins Equipment
Company stating that at the customer's request the
Union should not refer either Lathan or Billy Wheelis to
the Offshore Technology Show. Dated April 19, 1982,
the letter reads as follow (G.C. Exh. 13):
TO: International Operating Engineers - Local 450
As per our recent conversation with our custom-
er we request that the following operators not be
assigned to work the "OTC" Show for various
reasons.
Thank You,
/s/ Martin Rodriquez
Martin Rodriquez
Timmins Equipment Company
Billy Wheelis
Joel Lathran [sic]
Johnson testified that a day or two before he received
the letter Rodriquez telephoned him. They have known
each other several years. In the telephone conversation
they discussed, among other things, the request not to
send Lathan and Wheelis. Johnson testified that the
grounds for the request not to send Wheelis involved a
lawsuit steming from a man injured on the job by Whee-
lis the year before. Johnson, however, had no firsthand
knowledge regarding the complaint involving Lathan.
Rodriquez did not identify the customer, and Johnson
testified that he did not ask for any details nor did he in-
vestigate the complaint of the customer of Rodriquez.
Johnson testified that the customer probably was Sulli-
van Transfer Company. Johnson testified that he has not
had time to investigate the allegations submitted by Ro-
driquez.
After receiving the foregoing letter, Johnson called
Timmins and told a receptionist, in Rodriquez' absence,
that if Rodriquez wanted him to honor the request he
would have to get the correct information. This per-
tained to the fact that Lathan's name was misspelled. A
second letter, dated April 22, 1982, was sent addressed to
Local 450 over the name of Rodriquez, but unsigned.
The text of the message reads (G.C. Exh. 14a):
As per our recent conversation with our Customer.
We request the following not be assigned to work
the "OTC SHOW." "For various reasons." Jack
Lathan and Bill Wheelis.
While the second letter corrected the spelling of the
name of Wheelis and the surname of Lathan, it mis-
spelled Lathan's given name.
Lathan testified that on April 22, 1982, he was in the
hiring hall when a job was called out for the Offshore
Technology Conference (OTC herein). A driver position
was available and Lathan bid on it, but business agent
Lester Dennis said that he could not go. When Lathan
808
OPERATING ENGINEERS LOCAL UNION 450
asked why Dennis replied that the Union had a letter
downstairs stating that they did not want Lathan out
there that year. Lathan replied that the Union should dis-
patch him anyway and let the employer tell Lathan that
he was not wanted. Dennis repeated his statement and
Lathan said that he was asking as a member of the Union
on the out-of-work list to be dispatched and to let the
employer give him the reason. Dennis, according to
Lathan's undisputed testimony, "got up in my face" and
said, "[G]oddamnit I said you ain't going. You under-
stand that?" Lathan presented no further argument, but
he did request to see the letter. Dennis agreed to show it
to him and they went downstairs. Dennis obtained the
key to Johnson's office from dispatcher Eddie Carter,
went to Johnson's office, and returned with the letter.
Dennis held the letter while Lathan read it. According
to Lathan, the date was September 21. After examining
General Counsel's Exhibits 13 and 14a, Lathan testified
that neither is the one Dennis showed him. Lathan again
asked for a copy but was refused. Lathan testified that
the letter he read was on the same stationary as General
Counsel's Exhibit 13, the letter dated April 19, 1982, in
evidence, and was about the same length with Lathan's
name being the only operator mentioned. Lathan testified
that he read the letter carefully, and he did not see the
name of Billy Wheelis in the letter. 15
Lathan testified that he had worked as a driver for
Timmins at the OTC Show 2 years earlier, as well as at
some equipment shows in years past. The only criticism
he ever received was at one of the equipment shows, not
the OTC Show, when he was operating a 75-ton P & H
Crane. He had a front-end man from Texas City and two
union ironworkers. They sat there all morning without
seeing anyone to give them directions. About 11:30 a.m.
the two ironworkers left for lunch and about 20 minutes
later Lathan and his front-end man left. Rodriquez criti-
cized Lathan for leaving early. After Rodriquez made
that criticism he said nothing further.
On cross-examination Lathan testified that he tried to
telephone Rodriquez after reading the letter Dennis
showed him, but was unable to reach him. He wanted to
find out why Rodriquez had waited 2 years to send the
letter if he was so displeased. Lathan testified that he did
not work at the OTC in 1981 because he was working
on the Four Seasons Hotel job in May 1981 when the
OTC job is usually held.
Lathan testified that he told Rodriquez at the time the
latter criticized him for leaving early that there was
nothing the operators could do once the ironworkers
left. On this occasion the operators were taking down
the equipment for the OTC Show which had just been
completed. Rodriquez made no remark about Lathan
working or not working for the company in the future.
The front-end man was from the Texas City district.
Although I credit Lathan's testimony as set forth
above, it appears that there is some factual basis, howev-
er slight, to support the letter presented to Johnson, and,
in the absence of any evidence indicating that Johnson
solicited the letter, I shall dismiss complaint paragraphs
I I(ee) and (ff).
"I While I credit Lathan concerning this matter. it seems clear that
even the letter he read requested that Local 450 not refer him.
H. The General Backdooring Allegation in Paragraph
10(a)
Paragraph 10(a) of the complaint reads as follows:
Commencing on or about January 1, 1981, and con-
tinuing to date, Respondent, pursuant to the em-
ployment agreement, arrangement, understanding or
practice, and in the operation of its exclusive hiring
hall, as described above in paragraphs 7 and 9, has
maintained a practice known as "backdooring,"
whereby certain members of Respondent were, and
are, accorded preference in referral to jobs over
other members and nonmembers, even though such
unfavored members and unfavored nonmembers
have an earlier registration on the out-of-work list.
Although one could argue that the foregoing allega-
tion is broad enough to encompass the theory that Re-
spondent's request and steward appointment systems vio-
lated Section 8(b)(1)(A) and (2) of the Act because they
are nepotistic,' 52 the General Counsel makes no specific
argument in this respect. Moreover, as the concept was
not sufficiently litigated at the hearing, it cannot be said
that Respondent was ever put on notice that its basic op-
eration of these two systems was under attack or that
Respondent impliedly consented to trial of the issue by
fully litigating it. I therefore shall make no findings on
this matter.
However, Respondent's failure to announce "upstairs"
that orders have been filled by request and by designa-
tion of stewards has been raised as an unlawful departure
from the established hiring hall rules, this matter has
been sufficiently alleged and litigated, and I shall make
findings as to that practice. As to this matter, I find that
Respondent's admitted practice of failing to announce at
the daily 7 a.m. job calls which jobs have been filled by
requests and steward appointments deviates from the es-
tablished rules of the exclusive hiring hall and constitutes
a violation of Section 8(b)(1)(A) and (2) of the Act.
Respondent's justification for this practice, that the re-
quests are not job orders and that stewards may be ap-
pointed, without announcement, because they are repre-
sentatives of the Union, are unavailing. Johnson's defini-
tion of the requests as not being job orders self-destructs
on the very job order forms on which Local 450 marks
"request" by the operator's name. As for the steward ap-
12 For example, at one point business agent Johnson conceded that
the requests frequently are based upon an operator foreman calling for
his "buddy." In fairness, however, it should be noted that Johnson also
testified that operators are requested because they have done good work
in the past and are therefore requested because of their reputation for
quality and dependability. And Lathan admitted that he had been re-
quested on about 5 percent of his jobs and that such requests were based
upon the fact that he had done good work in the past for the contractors.
Lathan testified that he would have no complaint about the request
system if it were managed fairly. As to the instant concept of a nepotic
superstructure. the question arises as to which came first. experience-
goodwork or the friendship. In other words. did the request system come
into being by friends requesting friends and relatives so that eventually
the friends and relatives became skilled and thereafter were requested be-
cause of their experience and skill? If so. then it all began because friends
requested friends and relatives and not because of the experience and skill
factor. Under the posture of this case, however, that question is not pre-
sented for resolution here
809
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pointments, the issue of Respondent's right to designate
its representatives is not in issue. What is in issue is the
question of whether the failure to announce their ap-
pointments significantly deviates from the objective
hiring hall standards. Clearly the answer is in the affirm-
ative.
As earlier noted, any deviation from established refer-
ral rules "which results in a denial of employment to an
applicant falls within that class of discrimination which
inherently encourages union membership, breaches the
duty of fair representation owed to all hiring hall users,
and violates Section 8(b)(1)(A) and (2), unless the union
demonstrates that its interference with employment was
pursuant to a valid union-security clause or was neces-
sary to the effective performance of its representative
function." Operating Engineers Local 406 (Ford, Bacon &
Davis Construction), 262 NLRB at 51.
With some exceptions, whether employment was
denied returns to the nature of the request system. But
the question of whether specific employment was denied
is but one possibly inquiry. Board Decisions also estab-
lish the principle that a union must operate its exclusive
hiring hall on objective standards. Laborers Local 394
(Building Contractors of N.J.), 247 NLRB 97, fn. 2 (1980).
The request and steward appointment systems, even if
presumed to be objective standards, must be utilized as
part of the established referral rules. In practice this
means that requests and steward appointments must be
announced "upstairs" at the second floor hiring hall
when the daily 7 a.m. job call is made. Not only does the
private distribution of job orders downstairs for requests
and steward appointments breed suspicion, distrust, and
dissension, it creates conditions which enable business
agents, if they are so minded, to abuse the statutory
rights of employees by issuing referrals out of sequence
with the established out-of-work list.
Indeed, in this very case I have found that Respond-
ent, even without reference to motivation, violated the
Act in bypassing Charging Party Lathan in some of the
alleged instances of "backdooring." Accordingly, I find
that Respondent has violated Section 8(b)(1)(A) and (2)
of the Act by failing to announce at the daily second
floor job call which jobs have been filled by requests and
steward appointments and the names of the operators so
requested and appointed.
CONCLUSIONS OF LAW
1. Houston Chapter, Associated General Contractors
of America, Inc. (AGC), and Construction Employers'
Association of Texas (CEA) are Texas corporations rep-
resenting their members in respect to negotiating and po-
licing collective-bargaining agreements, labor relations,
and related matters.
2. Certain members of the AGC and CEA are employ-
ers engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
3. International Union of Operating Engineers, AFL-
CIO, Local Union 450, is a labor organization within the
meaning of Section 2(5) of the Act.
4. At all relevant times Local 450 and various employ-
er-members of the AGC and CEA have had an exclusive
hiring hall arrangement and practice whereby such em-
ployers hire their employees engaged as operating engi-
neers through the exclusive hiring hall operated by
Local 450.
5. Respondent has violated Section 8(b)(1)(A) of the
Act (a) by business agent R. L. "Sonny" Johnson's May
25, 1981, threatening to remove Charging Party Joel
Lathan from a job if he filed charges with the Board, (b)
by Johnson's July 9, 1981, instructing Charging Party
Joel Lathan to cease his protected activity or end up
dead, (c) by Local 450's filing internal union charges
against Charging Parties Joel Lathan and Larry Schubert
in July 1981, subjecting Lathan and Schubert to trial,
fining each the sum of $1,000, and expelling them from
membership in Local 450 on September 24, 1981, be-
cause Lathan and Schubert had engaged in the protected
concerted activity of investigating potential backdooring,
because they had discussed filing charges with the Board
over such perceived backdooring, and because they filed
such charges with the Board on June 8, 1981, and (d) by
Job Steward Dean Jacka's December 3, 1981, assault and
battery of Charging Party Joel Lathan.
6. Respondent has violated Section 8(b)(1)(A) and (2)
of the Act since on or about January 1, 1981, (a) by fail-
ing to announce at its daily 7 a.m. job calls at its second
floor hiring hall which jobs have been filled by requests
and steward appointments and the names of the opera-
tors so requested and appointed, (b) by certain instances
of deviation from the sequential referral from out-of-
work lists, as alleged in complaint paragraphs 11(h), (w),
and (dd), and (c) by causing the December 3, 1981, dis-
charge of Joel Lathan from the employment of J. W. Ba-
teson Company, Inc., at the Conoco job in Houston,
Texas.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom and to take affirma-
tive action designed to effectuate the policies of the Act.
I have found that Respondent unlawfully bypassed
Charging Parties Joel Lathan and Larry Schubert in re-
ferral to certain jobs, and I have further found that Re-
spondent has acted unlawfully in failing to announce
which jobs have been filled by requests or steward ap-
pointments. To remedy these violations of the Act, it is
recommended that Lathan and Schubert be made whole
for any loss of earnings they may have suffered by
reason of the discrimination against them.'53 Backpay
shall be computed in the manner set forth in F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest thereon as
prescribed in Florida Steel Corp., 231 NLRB 651
(1977).'54
As the internal union charges and trial, fines, and ex-
pulsion from membership in Local 450 were unlawful, I
shall recommend that Respondent be ordered to declare
153 To the extent consistent with the findings I have made, and with
Board law, the compliance investigation vwill consider Lathal's physical
ability in relation to work available in the make-whole determination.
154 See, generally, Isis Plumbing Co., 138 NLRB 716 (1962).
810
OPERATING ENGINEERS LOCAL UNION 450
each proceeding a nullity, to expunge from its records all
references to such proceedings, and to notify Lathan and
Schubert in writing that it has done so. Because it does
not appear that either Lathan or Schubert has paid the
fine assessed him, there is no reason to order that such
money be reimbursed, with interest.
Because of the publicity within Local 450 of the inter-
nal union charges and trials of Lathan and Schubert, I
shall recommend that Respondent be ordered to read the
notice to employees and members, attached to this Deci-
sion, at a regular membership meeting as part of its com-
pliance with the Order I recommend
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following:
ORDER'l
The Respondent. International Union of Operating En-
gineers, AFL-CIO, Local Union 450, Houston, Texas, its
officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Coercing or restraining employees, members, job
applicants, or registrants by threatening to remove them
from jobs if they file charges with the National Labor
Relations Board, by threatening them with death if they
do not cease their protected activity of investigating per-
ceived backdooring, and by committing assault and bat-
tery upon any individual who engages in protected activ-
ity.
(b) Operating its exclusive hiring hall and referral
system in a discriminatory manner by failing to announce
at the 7 a.m. job calls at its second floor hiring hall facili-
ty which job orders have been filled by request and by
appointment of stewards and the names of the operators
so requested and appointed, and by failing to follow the
sequential referral of registrants from the out-of-work list
without such deviation being necessary to the effective
performance of its representative function and also with-
out the reason for any such deviation being announced at
the pertinent 7 a.m. job call.
(c) Bringing internal union charges against members
and subjecting them to trial, fines, and expulsion from
membership in the Union because such members engage
in the protected concerted activity of investigating po-
tential backdooring, because they discuss filing charges
with the National Labor Relations Board over such per-
ceived backdooring, or because they in fact file such
charges with the Board.
(d) Causing or attempting to cause employers to dis-
criminate against Joel Lathan, Larry Schubert, or any
other employees, members, job applicants, or registrants
by discriminatorily failing and refusing to refer them to
various employer-members of the AGC and CEA pursu-
ant to the operation of its exclusive hiring hall and refer-
ral system.
'5" In the event no exceptions are filed as provided by Sec 102.46 of
the Rule, and Regulations of the Nalional ahbor Relaiions Board. the
Findings, conclusions. and recommended Order herein shall, as provided
in Sec 10(2 4 of the Rules and Regulations, be adopted by the Board and
become Its findings. conclusions, and Order, and all objections Ihereto
shall hbe deemed waived for ill purposes.
(e) Causing J. W. Bateson Company, Inc., or any other
employer. to discharge Joel Lathan or any other employ-
ees, members, job applicants, or registrants because they
have engaged in protected concerted activity including,
but not limited to, filing charges with the National Labor
Relations Board against Respondent.
(f) In any like or related manner restraining or coerc-
ing employees, members, job applicants, or registrants in
the exercise of their rights guaranteed by Section 7 of
the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Make Joel Lathan and Larry Schubert whole for
any loss of earnings and benefits they may have suffered
by reason of Respondent's unlawful operation of its
hiring hall and the December 3, 1981, termination of Joel
Lathan from the employment of J. W. Bateson Compa-
ny, Inc.
(b) Declare the July 9, 1981, internal union charges
and the September 24, 1981, internal union trials, fines,
and membership expulsion of Joel Lathan and Larry
Schubert to be nullities, expunge from its records all ref-
erences to such charges, trials, fines, and expulsions, and
notify Lathan and Schubert in writing that it has done
so.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
hiring and referral records of hiring hall users, including
work order cards, referral books, out-of-work lists, stew-
ard reports, pension and benefit reports, work history
records, and other documents necessary to analyze and
compute the amount of backpay due Joel Lathan and
Larry Schubert under the terms of this Order.
(d) Post at its first floor business office and second
floor hiring hall copies of the attached notice marked
"Appendix."' 5 Copies of said notice, on forms provided
by the Regional Director for Region 23, after having
been duly signed and dated by Respondent's authorized
representative, shall be posted by Respondent immediate-
ly upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to members and employ-
ees are customarily posted. Reasonable steps shall be
taken by Respondent to ensure that said notices are not
altered, defaced, or covered by any other material.
(e) Sign and return to said Regional Director sufficient
copies of the attached notice marked "Appendix" for
posting by employer-members of the AGC and CEA, if
said employers are willing, in conspicuous places, includ-
ing all places where notices to their employees are cus-
tomarily posted.
(f) Read the attached notice to employees and mem-
bers to all members attending a regular membership
meeting as part of the compliance with this Order.
,6e In the event that this Order is enforced by a Judgment of a United
Slates Court of Appeals. the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board"
811
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(g) Notify the Regional Director for Region 23, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint is dis-
missed except for the specific violations found.
812