International Union of Operating Engineers, Local 150

National Labor Relations Board - Board Decisions

Feb 12, 1959

122 N.L.R.B. 1374 (N.L.R.B. 1959)

1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sustained by the credited evidence . Accordingly, the Trial Examiner recommends
that the complaint be dismissed , in its entirety.
Upon the basis of the foregoing findings of fact , and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Safeway Stores, Inc., Laramie , Wyoming, is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Retail Clerks International Association , Local No. 187, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. The allegations of the complaint that Respondent had engaged in and was
engaging in unfair labor practices within the meaning of Section 8 (a)(1) and (3)
of the Act have not been sustained.
[Recommendations omitted from publication.]
International Union of Operating Engineers , Local 150, AFL-
CIO [Fluor Company, Ltd.] and Eugene Russell . Case No.
13-CB-428. February 12, 1959
DECISION AND ORDER
On January 24, 1957, Trial Examiner Arthur E. Reyman issued
his Intermediate Report in the above-entitled proceeding, a copy of
which is attached, finding that the Respondent had not engaged in
any of the unfair labor practices alleged in the complaint and recom-
mending that the complaint be dismissed in its entirety. Thereafter
the General Counsel filed exceptions to the Intermediate Report and
a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and brief, and the entire record
in this case. To the extent and for the reasons stated below the
Board finds merit in the General Counsel's exceptions. Otherwise
the Board adopts the findings, conclusions, and recommendations of
the Trial Examiner.
1. The Trial Examiner found that the record in this case was in-
sufficient to conclude that an unlawful hiring arrangement existed
between the Respondent Union and the Company. We disagree. In
April, 1955, the Fluor Company was engaged in a construction proj-
ect at Hammond, Indiana. Following its usual practice the Com-
pany first met with the local Building Trades Council and informed
the participating labor organizations of the number and type of
employees it would require. There was in effect at this time a con-
tract between the Respondent Union and the Calumet Division of
the State Chapter of the Associated General Contractors of Indiana
which provided, in pertinent detail, that the Union would furnish
122 NLRB No. 154.
INTERNATIONAL UNION OF OPERATING ENGINEERS , LOCAL 150 1375
to the employer members "only competent and experienced Engi-
neers, Oilers and Firemen." The Fluor Company was not a party
to this contract . However, Roy E. Oliver, business agent of the
Respondent Union , testified that the Company was furnished with
a copy of the contract and that it was generally understood that the
Company would abide by the working rules of the area . With re-
spect to the hiring of operating engineers , Emmett Smith , general
superintendent of the Company, testified that he called upon Oliver
in the latter part of June 1955, to furnish some employees of this
type. Smith testified further that the Company had asked the
Union for a copy of its working rules , that those working rules
provided for the hiring of a master mechanic when the number of
engineers exceeded 10, and that "we accepted the working rules."
The Union's working rules also included a provision from the con-
stitution of the International as follows : "Each member shall hire
none but those in good standing with a Union having jurisdiction
over the work to be done . . . ." When the number of operating engi-
neers had reached the number of 10 , Charles Press , a member of the
Respondent was appointed master mechanic . Press testified that he
was "boss over the men and the equipment ." When in need of new
employees he would receive an okay from Smith or the latter's
assistant to "call in and get one ." He would then call the union
hall and the men were sent out by the business agent. Although
Press testified that he merely "recommended the hiring ," the record
will not support a finding that any other official of the Company
actually hired operating engineers after the master mechanic was
appointed . In answer to a question from the Trial Examiner as to
who did the hiring for the Company, Press replied that it was Don
Wright, the chief timekeeper , who signed the men up. It appears
quite clear , however, that Wright had no discretion at all as to the
hiring of men, but performed only a ministerial duty in his capacity
as chief timekeeper . We therefore do not adopt the Trial Examiner's
statement that Press merely "recommended the hiring." The record
is quite clear that operating engineers at the Hammond project nor-
mally were hired only by referral from Oliver . In referring men
to jobs, Oliver testified that preference was given to members of the
union. One employee , Hooker, was hired by Press at the suggestion
of Smith, but with the specific approval of Oliver.
From the above it is apparent that the Company and the Respond-
ent had reached a meeting of the minds with respect to the hiring
of operating engineers . Such employees were to be hired exclusively
through the Respondent 's hiring hall and none but those referred or
approved by Oliver could be employed . The Union's control over
hiring was , in practice , enforced by the Company's acceptance of the
working rules which required Press, a union member , to hire none
1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but those operating engineers in good standing with the Respondent.
Accordingly, we do not adopt, the Trial Examiner's finding that the
hiring arrangement in this case amounted to the fact that the
Company "'first called upon the various unions or crafts and their
representatives to furnish them with experienced help." We find
that the Company and the Respondent Union, in effect, agreed,
through the master mechanic, Press, as their agent, to engage in and
did engage in a hiring arrangement requiring all applicants for
employment to be referred exclusively by Respondent, with prefer-
ence for union members. By such conduct the Respondent Union
violated Section 8(b) (2) and (1) (A) of the Act.'
2. We agree with the Trial Examiner that Eugene Russell was
discharged for cause and that the discharge is not attributable to
the Respondent Union. The record shows a history of on-the-job
discord between Russell and Press on matters clearly unrelated to
union membership or the obligations of union membership. Russell,
a union member in good standing at all material times, was em-
ployed by the Company about July 17, 1955. During the following
months he and Press had several arguments, more fully detailed in
the Intermediate Report. The last argument involved Russell's by-
passing Press to speak to Phillips, equipment superintendent, to
secure a frost ball for the purpose of breaking slag. This occurred
on November 29 or 30. Press overheard Russell's conversation with
Phillips and admonished Russell about going over Press' head. A
heated argument ensued during the course of which Russell used
strong language directed against Press and Oliver. Press testified
that he told Russell "that I had to report it to Oliver." Press re-
ported the conversation to Oliver that evening. Oliver, according
to Press, said "Lay him off." Russell was laid off on December 1
by Press. Oliver's testimony comports substantially with that of
Press. The former testified that Press called in to tell Oliver that
Russell wouldn't take orders and "to keep peace and contentment on
the job, I told him [Press] the best thing to do was to send him
[Russell] in, we'd send him somewhere else." It thus appears that
the motivating reason for Russell's discharge was a disciplinary one;
he would not adhere to company rules and ignored the on-the-job
orders of Press, his immediate superior. Section 10(c) of the Act
forbids the reinstatement of any employee who has been discharged
for "cause." There is nothing in this record to suggest that Russell's
discharge for failure to obey orders was a pretext or, indeed, that
'Local Union No. $50, International Union of Operating Engineers, AFL-CIO, and
W. S. Chennault, Business Representative (Tellepsen Construction Company), 122 NLRB
564. For the procedures and standards necessary' to establish a lawful exclusive re-
ferral system see Mountain Pacific Chapter of the Associated General Contractors, etc.,
119 NLRB 883.
INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 150 1377
Press discharged him for any reason other than a disinclination to
supervise a recalcitrant subordinate. The fact that Press called
Oliver for advice in dealing with an undesirable employee 2 does not,
in our opinion, materially affect the conclusion that Russell was, in
fact, discharged for cause. Obviously, Oliver neither planned nor
initiated the steps leading to Russell's discharge. Accordingly, the
Respondent Union has not violated Section 8(b) (2) or (1) (A) of
the Act in connection with such discharge. Whatever influence
Oliver's suggestion to Press may have had, the suggestion, in any
event, was clearly made without regard to Russell's union member-
ship or obligations of union membership and could not therefore
be violative of the Act .3
THE REMEDY
Having found that the Respondent has violated the Act, we shall
order that the Respondent cease and desist therefrom and take cer-
tain affirmative action in order to effectuate the policies of the Act.
By its unlawful hiring arrangement with the Company granting
preference in employment to union members, and the exclusive right
of referral to Respondent, the Respondent unlawfully has caused the
Company to encourage union membership and to prefer union mem-
bers for employment, thereby inevitably coercing those employees to
pay union initiation fees and dues, and other moneys unlawfully
exacted from them. As part of the remedy, therefore, we shall order
the Respondent Union to refund to the Company's employees all
sums, including initiation fees and dues, exacted from them as the
price of their employment.' This remedy, is, we believe, appropriate
and necessary to expunge the coercive effect of the Respondent's
unfair labor practices.'
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
We do not, however , adopt the Trial Examiner ' s factual finding that Press telephoned
Oliver, told the latter that Russell had been instructed not to report for work again, and
requested Oliver to send a replacement . The record does not support this statement of
the facts.
3 International Longshoremen's and Warehousemen's Union, Local No. 10 , Independent;
and International Longshoremen's and Warehousemen 's Union, Independent (Pacific
Maritime Association ), 121 NLRB 938.
6 Respondent 's liability for the refund of such sums shall include the period beginning
6 months prior to the filing and service of the charges herein and shall extend to all such
moneys thereafter collected, exempting the period between the date of the Intermediate
Report and the date of the Order herein, as the Trial Examiner dismissed the complaint.
6 See, United Association of Journeymen & Apprentices of the United States and Canada,
Local $31, AFL-CIO (J. S. Brown-E. F. Olds Plumbing & Heating Corporation), 115
NLRB 594; Broderick Wood Products Company, 118 NLRB 38, affd. 43 LRRM 2123
(C.A. 10) ; Local Union No. 450, International Union of Operating Engineers , AFL-CIO,
and W. S. Chennault , Business Representative ( Tcllepsen Construction Company ), supra.
505395-59-vol. ] 22 88
1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Board hereby orders that the Respondent, International
Union of Operating Engineers, Local 150, AFL-CIO, its officers,
representatives, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Entering into, performing, maintaining, or otherwise giving
effect to any agreement, arrangement or understanding with Fluor
Company, Ltd., or any other employer within the meaning of the
Act, which conditions the hiring of applicants for employment upon
membership in the Respondent Union or clearance by the Respond-
ent Union, except to the extent that the requirement of clearance or
approval by a labor organization is lawfully imposed under the
conditions stated in Mountain Pacific Chapter of the Associated
General Contractors, supra.
(b) In any like or related manner restraining or coercing em-
ployees in the exercise of their rights guaranteed in Section 7 of the
Act, except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization as a condi-
tion of employment as authorized by Section 8(a) (3) of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Refund to all present and former employees of Fluor Com-
pany, Ltd., all sums, including all initiation fees and dues, which
they were illegally required to pay the Respondent Union in order
to secure employment with the said Company under the illegal hiring
arrangement between the Respondent Union and the Company, as
provided in the section herein entitled "The Remedy."
(b) Preserve and make available to the Board or its agents upon
request, for examination and copying, all records, reports, out-of-
work lists, and other documents, necessary to analyze the amounts
of moneys due and the rights of employment under the terms of
this Order.
(c) Post in the Respondent Union's business offices and meeting
halls copies of the notice attached hereto marked "Appendix." s
Copies of said notice, to be furnished by the Regional Director for
the Thirteenth Region, shall, after being duly signed by an author-
ized representative of the Respondent Union, be posted by said Re-
spondent Union immediately upon receipt thereof, and be maintained
by it for a period of 60 consecutive days thereafter in conspicuous
places, including all places where notices to members are customarily
posted. Reasonable steps shall be taken by the Respondent to insure
that the said notices are not altered, defaced, or covered by any
other material.
6 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
INTERNATIONAL UNION OF OPERATING ENGINEERS , LOCAL 150 1379
(d) Mail to the Regional Director for the Thirteenth Region
signed copies of the notice attached hereto marked "Appendix" for
posting at the offices of Fluor Company, Ltd., and project sites where
the said Company is engaged in business within the territorial
jurisdiction of the Respondent Union, in places where notices to the
Company's employees are customarily posted, the said Company
willing.
(e) Notify the Regional Director for the Thirteenth Region in
writing, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and hereby is dis-
missed insofar as it alleges that the Respondent violated Sections
8(b) (2) and (1) (A) in connection with the discharge of Eugene
Russell.
MEMBER RODGERS took no part in the consideration of the above
Decision and Order.
APPENDIX
NOTICE TO ALL MEMBERS OF INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL 150, AFL-CIO; TO ALL EMPLOYEES OF FLUOR
COMPANY LTD.; AND TO ALL APPLICANTS FOR EMPLOYMENT
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby give notice that:
WE WILL NOT enter into, perform, maintain, or otherwise give
effect to any agreement, arrangement or understanding with
Fluor Company, Ltd., or any other employer within the mean-
ing of the National Labor Relations Act, which conditions the
hiring of applicants for employment upon membership in our
organization or clearance by our organization, except to the
extent that the requirement of clearance or approval by a labor
organization is lawfully imposed under the conditions stated in
Mountain Pacific Chapter of the Associated General Contractors,
119 NLRB 883.
WE WILL NOT in any like or related manner restrain or coerce
employees in the exercise of their rights guaranteed in Section 7
of the National Labor Relations Act, except to the extent that
such rights may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment as
authorized by Section 8 (a) (3) of the Act.
WE WILL refund to all present and former employees of Fluor
Company, Ltd., all sums, including initiation fees and dues,
which they were illegally required to pay our organization in
1380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
order to secure employrrient with the said Company under the
illegal hiring arrangement between our Union and Fluor Com-
pany, Ltd.
INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL 150, AFL-CIO,
Labor Organization.
Dated--------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This is a proceeding under Section 10(b) of the National Labor Relations Act,
as amended.'
On the basis of a charge filed on December 21, 1955, by Eugene Russell, in
which Russell alleged that the International Union of Operating Engineers, Local
150, AFL-CIO, "by its agents, Wesley Press, Master Mechanic and Arthur Nelson,
Job Steward, discharged Eugene Russell, an employee of Fluor Company, Ltd., for
reasons other than the failure to pay dues, in violation of Section 8(b)(2) of the
National Labor Relations Act" the General Counsel of the National Labor Rela-
tions Board, by the Regional Director for the Thirteenth Region, on November 15,
1956, issued a complaint alleging that the acts of the Respondent Union as set
forth in the complaint constitute unfair labor practices affecting commerce within
the meaning of Section 8(b)(1)(A), (b)(2) and Section 2(6) and (7) of the Act .2
In substance, the complaint charges that while the Company was engaged in
the operation of its business of construction, engineering, and manufacturing, it
maintained with the Union through its officers and agents an unlawful hiring ar-
rangement which provided, among other things, that as a condition of obtaining
and retaining employment with the Company its employees become members and
be members of the Union or to have obtained referrals from the Union; that the
alleged illegal hiring agreement is and has been in effect at all times since July 15,
1955, and has been enforced by the Company in its dealings with its employees,
prospective employees and with the Union; and that the Union through certain
of its officers and agents attempted to cause and did cause and continues to cause
the Company, while in the operation of its business to discriminate against Russell
by discharging or laying him off on or about November 30, 1955, in violation of
Section 8(a)(3) of the Act. It further is alleged in the complaint that the Union
attempted to and did cause and is causing the Company to discriminate against its
employees in violation of Section 8(a)(3) of the Act and did thereby engage in and
is thereby engaging in unfair labor practices within the meaning of Section 8(b)(2)
of the Act.
The Union filed a timely answer to the complaint, in which it denies the
substantive allegations of violations of the Act by it and says further that the
complaint was not issued until more than 10 months after the charge was made
and filed.
On the issues drawn by the complaint and the answer, this case came on to be
heard before the duly designated Trial Examiner, pursuant to notice, on December
18, 1956, at Chicago, Illinois. At the hearing the General Counsel and the Union
were represented by counsel, and participated in the hearing. Full opportunity was
afforded each party to be heard, to introduce evidence relevant to the issues, to
argue orally upon the record, and to file proposed findings of fact and conclusions
of law, and to file briefs. A motion made to dismiss the complaint on the ground
1 61 Stat. 136 ; 29 U.S.C. Supp. I, Sec. 151 et seq., herein called the Act.
2 The National Labor Relations Board may be hereinafter referred to as the Board ; the
General Counsel of the National Labor Relations Board or his counsel as the General
Counsel ; the International Union of Operating Engineers , Local 150, AFL-CIO, may be
referred to as the Union or Local 150; and Fluor Company, Ltd., may be referred to as
the Company or the Employer.
INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 150 1381
that the complaint has not been proved , made at end of the case presented by the
General Counsel and renewed at the close of the hearing, is disposed of by the
recommendation of the Trial Examiner , stated below.
Upon the entire record in this case , from his observation of the witnesses, and
upon careful consideration , the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE FLUOR COMPANY, LTD.
The Fluor Company, Ltd., is and at all times herein mentioned has been, a cor-
poration duly organized under and existing by virtue of the laws of the State of
California, maintaining its principal office in Los Angeles, and plant facilities in
Paola, Kansas; New York, New York; Philadelphia, Pennsylvania; Chicago, Illinois;
Houston, Texas; and Toronto, Canada, where it is, and at all times material herein
has been, engaged in the business of construction, engineering, and manufacturing.
The Company, in the course, conduct, and operation of its business, causes and at
all times material herein, has caused large quantities of raw materials used by it in
the operation of its business to be purchased and transported in interstate com-
merce to its plants in the States of California, Texas, New York, Illinois, from and
through various States of the United States. During the calendar year 1955, a
period representative of the times material to the issues in this case, the value of
raw materials purchased by the Company for use in its said business shipped to its
places of business in California, Texas, New York, and Illinois, from points outside
of these States approximated more than $1,000,000. During the year 1955, the
Company caused large quantities of its finished products valued annually in excess
of $1,000,000 to be sold, shipped, and transported in interstate commerce from its
plants in California, Texas, New York, and Illinois, into and through various States
of the United States, and also rendered services in excess of $10,000,000 in various
States of the United States other than the State of California.
The Company is and at all times referred to herein, has been engaged in com-
merce and affects and has affected commerce within the meaning of Section 2(6)
and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
International Union of Operating Engineers , Local 150, AFL-CIO, the Respon-
dent herein, is and at all times referred to herein , has been a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNLAWFUL LABOR PRACTICES
After the Company entered into a contract with Calumet Nitrogen Products
Company for work involving the construction of an ammonia nitrate plant at Ham-
mond, Indiana, Emmett Smith, general superintendent, met with his superior, the
manager of construction for the Company, and the Company's personnel manager
at Hammond and shortly thereafter a meeting was held between these three com-
pany representatives and representatives of the labor organizations of the vicinity,3
this meeting taking place during the middle of April 1955. At the meeting the
company representatives informed the union representatives that the Company was
about to engage in a $12,000,000 building construction job, and that it would need
a number of skilled craftsmen to meet its labor needs on the job. After that meet-
ing, and when construction began, company representatives got in touch with vari-
ous business agents of the locals and arranged that the locals furnish them with
skilled and experienced men to go to work on the job. Among those who con-
ferred with company representatives was Roy E. Oliver, business agent of Local
150, Operating Engineers, who agreed that he could furnish the required number of
operating engineers to start to work on the job when needed.
Smith testified that it was common and accepted practice for his Company, when
it entered a new territory for the fulfillment of contract obligations, to get in touch
with the labor organizations in the area with a view toward acquiring men to work
on any particular job.
After August 3, 1955, there was a contract, in the form of a collective-bargaining
agreement, in effect between the Calumet Division of the State Chapter of the Asso-
ciated General Contractors of Indiana and the Hoisting and Portable Engineers,
3 This seems to have been the Building Trades Council, comprised of representatives of
the local crafts and building trades unions In the vicinity.
1382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union No. 150, International Union of Operating Engineers, the Respondent
herein, which provided in part that the agreement was intended
to establish wages, terms, conditions and benefits of employment for the mem-
bers of the [Union] who shall be employed by the Employer members of the
[Association], for the purpose of (a) preventing strikes, lockouts and stoppage
of work by reason of differences or controversies between such Employers and
Employees to which this agreement applies; (b) providing and securing a suffi-
ciency of skilled mechanics from membership of the [Union] for the Employers
who are members of the [Association]; (c) so far as possible providing con-
tinuous employment for the members of the [Union] and keeping building costs
as low, stable and certain as possible, consistent with fair wages and conditions
and benefits of employment and the advancement of labor and management in
skill and productivity; and in consideration of the mutual promises hereinafter
contained, the parties hereto agree as follows:
Article I
Witnesseth: This Agreement applies to all work under the jurisdiction of the
Engineers of the International Union of Operating Engineers and performed
by members of this craft; Section 1. Under the following terms and condi-
tions of the party of the second part agrees to furnish to the party of the first
part or its employer members only competent and experienced Engineers,
Oilers and Firemen....
This agreement (dated August 3, 1955) renewed a similar agreement in effect
prior thereto. The agreement defines rates of pay, overtime rates, and other terms
and conditions of employment. The agreement contains a saving clause providing
in substance that should any provision of the agreement be found contrary to or be
held in violation of the Labor Management Relations Act of 1947 that such provi-
sion shall be void and of no force or effect; the other provisions of the contract,
however, to stand. The Association in the agreement recognized the Union as the
exclusive bargaining representative of all employees covered by the agreement.
The Company was not nor did it ever become a party signatory to the agreement
between the Association and the Union. It is contended by the General Counsel,
however, that the Company did to all intents and purposes adopt the provisions of
the contract and the working rules of the Union, and thereby entered into an un-
lawful hiring arrangement which provided, among other things, that as a condition
of obtaining and retaining employment with the Company the employees of the
Fluor Company become members and be members of the Union or must have
obtained referrals from the Union.
In the latter part of June 1955, it became necessary for the first time for the
Company to hire operating engineers . Smith called Oliver, the business agent, and
Oliver sent him the number of men required at that time. The same procedure was
followed by Smith in connection with the first hiring of employees other than oper-
ating engineers; he testified that the Company had, among their own employees, a
man in nearly every craft who would tell him the number of men they needed, and
then with his approval the craft foreman would get in touch with the business agent
of the appropriate local union and request that men be sent out to the job. Smith
said that when his Company first comes into a territory they usually ask for the
working rules and that he thought so far as the Hammond project was concerned
it was "in the working rules" that when the number of operating engineers exceeded
10, a master mechanic was to be hired, and that the Company accepted the working
rules in this respect. Accordingly, when the number of operating engineers at the
Hammond project exceeded 10, he appointed a master mechanic who in effect be-
came the foreman or the immediate supervisor of the other operating engineers,
with the right to recommend hiring and firing. The master mechanic appointed
or hired by Smith at the Hammond job was one Charles Weston Press, who had
been hired earlier as a crane operator. Press had been sent to the job by Oliver,
the business agent of Local 150, and was hired by Smith.4 Previously, Press had
been told by Oliver that the Company needed a crane operator at the job-site and
asked Press if he was interested. Press had worked at the job-site at mucking for
another company, knew it would be a good job, and for that reason reported to
Smith, who put him to work. Under the union working rules, observed by the
Company, it was customary, when the number of operating engineers on a project
`At the peak of the construction, the number of employees employed at ithe Hammond
project was approximately 575. The construction work was still in progress at the time
of the hearing of this case before the Trial Examiner.
INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 150 1383
reached 10 or more, that a master mechanic be placed in charge of the activities
of the operating engineers. Some 15 days after Press began work, the number of
operating engineers reached 10 and Smith at that time made Press master mechanic.
As the Company brought in new equipment, and its activities required more men
for cranes and bulldozers, buckets and other equipment, Press would notify Smith
or Smith's assistant, Monroe, that he needed a man and he would be authorized
by Smith or Monroe to "call in and get one." It was Press' practice to call Oliver,
who would supply a man, who reported to Don Wright, the timekeeper, and then
to Press, who would put him to work. Other than to inform Oliver that the Com-
pany needed another man, Press had nothing to do with the hiring of the particular
man except to pass upon his fitness for the job; in his words, "I recommended the
hiring."
In the line of company authority, with respect to the operating engineers em-
ployed by the Company on the Hammond project, it was first Smith, the general
superintendent and his assistant superintendent, Monroe, then Phillips, superin-
tendent of maintenance, who was directly over Press, the master mechanic.
Oliver, called as a witness by the General Counsel, testified concerning both the
hiring practices at the Hammond project of the Company and the general practice
of hiring by members of the industry in the Calumet Division comprising Lake
County and some other 12 counties in and near the Chicago area. With respect
to the hiring of Press, he said that at the request of Smith for a man he had sent
Press to work as a crane operator and that later Smith and his assistant designated
Press as master mechanic, which gave Press the primary duty of hiring and firing
operating engineers and supervising their work. Concerning the hiring of Eugene
Russell, Oliver testified in effect that Russell called him to find out if a job was
available, that Oliver told him that there was a job open at Hammond, and for him
to report for work; that Russell reported and was put to work under Press, the
master mechanic. Concerning practice in the heavy construction industry in gen-
eral, Oliver said that it has been the general practice that when an employer comes
in to work on a project they come to the Unions "to get their employees," and
that the practice provides an assurance by the Union that the employers get good
men. Oliver said it also was general practice, when union men were not available
to be sent out on a job or jobs, that he would send out nonunion men whose names
were known to him and that after these men were sent out and had worked a period
of about 30 days he would attempt to "sign them in" as members of the Union if
their work had been satisfactory. It is implicit in the testimony of Oliver that
when he received requests for men from the Company or from other employers
he would send out a union man before he would send out a nonunion man if a
union man was then available. He testified further that he had never taken the
position with anyone that a man could not get work unless he was a member of
the Union, and that he had never attempted to induce any employer to discharge
a nonunion man if the employer considered the man competent and had not asked
Oliver to supply him with another man.5 Further, according to Oliver, when a
master mechanic called Oliver with respect to the discharge of a man, it was not
to obtain Oliver's permission to discharge the man, but to inform Oliver of the
discharge so that he would know the reason therefor and thus would not have to
bring a grievance or put the Union to the making of a complaint concerning the
discharge. In an ordinary case, Oliver would tell the master mechanic that the
best thing to do would be to send the man into the business office and then, Oliver
said, he would try to find another job for that mans
Before being employed by the Company, Russell worked on a construction job
for a contractor (Sumner-Solit), and was discharged by the master mechanic in
charge of the operating engineer crew for insubordination. The master mechanic
there, Lloyd Carver, testified at the hearing herein. He said in effect that after
Russell had refused to carry out his instructions and had damaged some expensive
machinery, he fired Russell; that after he fired Russell he called Oliver and asked
5It appears that one operating engineer , Hooker, was hired by Press at the suggestion
of Smith. Smith said that Hooker had followed the Company from job to job over the
country and that be had spoken to Press and asked Press to put Hooker to work if an
opportunity opened. Oliver said that when Hooker was hired, Press advised him over
the telephone and Oliver gave that hiring the "okay."
O According to Oliver, Local 150 has a membership of about 800 members. He also
maintains a list of men, nonunion men, who leave their names with him in the event jobs
open up in the area. If no union member is available he will notify a man whose name
is on his list, if qualified, that a particular job is open and suggest that the man apply
for the job.
1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Oliver to send a replacement out for Russell on that job. It was after this episode
that Russell was employed by the Fluor Company as a crane operator, under the
direct supervision of Press. The facts are clear that Russell, before, during, and
after the time of his employment with the Company, had never obtained a job
without first asking Oliver, as business agent for the Union, whether or not work
was available. Nor is there any question that during these times Russell was a
member in good standing, with dues fully paid.
After Russell was put to work on the Hammond project after being sent out by
Oliver, put on the payroll by Wright, and reporting to Press, and during the course
of his employment between sometime in the month of July and until November
30, 1955, he demonstrated traits of insubordination which apparently hurt Press.
In ordinary course, an employee under the supervision of Press was supposed
to tell him as master mechanic, his needs with respect to equipment. Russell by-
passed Press to speak to Phillips, superintendent in charge of equipment concerning
his needs for new equipment on the job on which he (Russell) was working. The
day before Russell was discharged, he had left his job and approached Phillips with
respect to the replacement of a bucket on the crane which he was operating. He
told Phillips that he thought that the use of a frost ball would be a more efficient
method to accomplish the demolition or breaking of slag than the bucket which he
claimed was damaged and which he was then using. Press was present at this
time, and overheard Russell's conversation with Phillips. He admonished Russell,
and told him that any request for equipment should go through him rather than
Russell go directly to Phillips. A heated discussion ensued, during the course of
which Russell, admittedly, used vile language directed expressly toward Press and
Oliver. According to Press, and it seems to be uncontradicted upon the record,
Russell ignored his orders, prior to the episode of November 29, that his needs for
equipment be stated to him rather than to Phillips. Other incidents brought on
hard feelings between Press and Russell through Russell's tendency to ignore orders
issued by Press. As example, Russell brought his car into the plant area against
company rules; then another time a water pump failed at a time when Russell was
on duty at night and Russell, ignoring orders, failed to call Press at his home so
that Press would be able to get a crew together to fix a pump to keep an excavation
dry. In substance, the testimony of Press and the testimony of Russell show that
they did not get along together on the job, mainly because Russell refused to follow
the orders given to him by Press. Early on the day before Russell was fired, Smith,
being cognizant of the friction between Press and Russell, called Oliver on the
telephone and informed him of the difficulty and asked Oliver to come out to the
job-site to discuss the matter. Oliver, Press, and Phillips, after discussion, agreed
that the "chain of employment," so far as Press' crew was concerned, started with
Press at the bottom and that there should be no further bypassing of Press by
Russell or any other crew member to Phillips, Smith, or any other company repre-
sentative in connection with requests for equipment.
On November 30, at about 3:45 p.m., Press informed Russell that he was to be
replaced by a "top-card" man, and instructed Russell to call for his paycheck.
Smith testified that he was informed by Monroe, about 4 o'clock, that Russell had
been discharged. After talking to Russell, Press telephoned Oliver, told him that
Russell had been instructed not to report for work again, and requested that Oliver
send him a replacement. Russell was advised by Oliver that he (Oliver), could
send Russell to another job. which Russell refused.
Russell's testimony is to the effect, as to the request made by him to Phillips for
a frost ball, that he and his oiler, Hooker, on the day before his discharge left
their work to see if they could find a new bucket or clam to replace the one they
were using on their crane; that in the presence of Press, Russell told Phillips that
he thought a frost ball would do the job, that Phillips thought that was a wonderful
idea, that Press told him (Russell) to look around to see if he could not find an-
other bucket; that Press, after Russell returned and was talking to Phillips about
the use of a frost ball, told Russell that he should take such matters up with Press
and not with Phillips, and that at that time heated words were exchanged and
strong language used by Russell.
In substance, then, it appears in the testimony from all witnesses regarding the
discharge of Russell, that he was discharged at the instance of Press because of
his refusal to take orders from Press-in essence, Russell was discharged for in-
subordination. As noted above, at the time of his discharge, Russell was a dues
paying member of Local 150 in good standing.
INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 150 1385
Concluding Findings
Oliver testified ". . it is a general understanding there that any of these large
contractors coming in that way will abide by the working rules of the area they
are working at." Implicit in another statement of Oliver to the effect that after 30
days of employment by an employer of a nonunion man he will "sign them up"
is a possible inference that should a man not sign up with the Union, the Union
will not send him to another job. That situation has not been proved by the in-
stant case. Russell was a member in good standing when he was hired and when
he was fired as an employee of the Company.
The Trial Examiner cannot find, as alleged in the complaint, that an unlawful
hiring arrangement, providing, among other things, that as a condition of obtaining
and retaining employment with the Fluor Company the employees of the Fluor
Company become members and be members of the Respondent Union or have
obtained referrals from the Respondent Union. The proof here does not go that
far. Clearly apparent are these facts: The Company, before starting actual con-
struction work at the Hammond project communicated with representatives of the
various crafts. It was the Company's desire to employ skilled craftsmen for work
on that project; the several unions, including Local 150, undertook to supply men
as needed from their membership to exert their best efforts to promote stable labor
relations during the course of the construction process at this job-site. There is
no proof in the record that the Union in any way demanded that only members
of the Union, and none other than union members, be employed by the Company.
The Company, in approaching the labor market, adopted the usual practice
among large general contractors in the industry, of going to the first usual and
reliable source of labor supply for employees needed.? Here, the General Counsel
failed to prove an unlawful hiring arrangement, as he alleged, by failing to prove
that the Company would hire none other than members of Local 150 for work as
an operating engineer.
This case is dissimilar from N.L.R.B. v. Construction Specialities Co., 208 F.
2d 170, 173 (C.A. 10) where was found there was a "tacit arrangement" under
which "the employer was required to hire only members referred by the Union";
the conclusion of the court in that case is inapplicable here. There the Board had
properly concluded that the Union and its agent, by enforcing "the tacit arrange-
ment" had violated Section 8 (b) (1) (A) and (2) of the Act.8
There is nothing in the Act, so far as this Trial Examiner can find, which would
prevent the Company from recognizing Local 150 as the representative of those
of its employees engaged and hired to perform the work under the jurisdiction of
the Union. Nor can the Trial Examiner find anything wrong to be found within
the established fact that the Company, when it undertook to fulfill its contract
obligations, first called upon the various unions or crafts and their representatives
to furnish them with experienced help. It is a matter of common knowledge that
in the heavy construction industry, it is traditional that the general contractor many
times will first seek out the most available source of labor supply, i.e., the craft
union in the particular area.
The absence of a showing by the General Counsel that the acceptance by the
Company of the Union as representative of the employees engaged by it as oper-
ating engineers agreed to employ only members of the Union, and the absence of
a showing that the acceptance of the Company of the conditions of the agreement
in effect between the Calumet Division of the State Chapter of the General Con.
tractors Association of America, contained any provision which would prevent
nonunion members from hire by the Company, impels the Trial Examiner to find
that there is the lack of proof to sustain the allegations of violations of the Act
by the Union in any respect.
7 Haber, Industrial Relations in the Building Industry (Harvard University Press,
1930), pp. 254, 256; U.S. Department of Labor, Bureau of Labor Statistics, Employers'
Association and Collective Bargaining, Part II: The Machinery and Processes for Asso-
ciation Bargaining (Preliminary Draft, 1947), p. 73; American Federation of Labor, The
Closed Shop and Union Security : Economic Brief of the American Federation of Labor.
footnote p. 39, 1947; Haber and Levinson, Labor Relations and Productivity in the
Building Trades, pp. 244-245, 1956; Rosenthal, Labor Board Jurisdiction Over the Build-
ing and Construction Industry, Labor Law Journal (C.C.H.), January 1952, pp. 7-12.
8 N.L.R.B. v. Biscuit and Cracker Workers Local No. 405, 222 F. 2d 573 (C.A. 2), enfg.
109 NLRB 985, relied upon by the General Counsel, is inapposite.
1386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the facts related above in connection with the discharge of
Russell , the Trial Examiner expressly finds that Russell was discharged for cause
and that no remedy is available to him under the Act by reason of his discharge
from the employment of the Company.
Upon the basis of the findings of fact, and upon the entire record in the case,
the Trial Examiner makes the following:
CONCLUSIONS of LAW
1. The operations of Fluor Company, Ltd. constitute trade, traffic , and commerce
among the several States , within the meaning of Section 2(6) of the Act.
2. International Union of Operating Engineers, Local 150, AFL-CIO, is a labor
organization within the meaning of Section 2 (5) of the Act.
3. The Respondent, International Union of Operating Engineers , Local 150,
AFL-CIO, has not engaged in unfair labor practices within the meaning of Section
2(b) (1) (A) or (b) (2) of the Act, as alleged.
(Recommendations omitted from publication.]
H. W. Lay & Company, Inc. and Truck Drivers and Helpers
Local Union No. 728, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Peti-
tioner. Case No. 10-RC-4035. February 12, 1959
DECISION AND CERTIFICATION OF REPRESENTATIVES
Pursuant to a stipulation for certification upon consent election,
an election was conducted on January 4, 1958, under the direction
and supervision of the Regional Director for the Tenth Region,
among certain employees in an agreed-upon unit. At the close of
the election, the parties were furnished a tally of ballots which
showed that there were approximately 12 elegible voters, that 7 cast
votes for the Petitioner, and that 5 cast votes against the Petitioner.
There were no void or challenged ballots.
Thereafter, the Employer timely filed objections to conduct af-
fecting the results of the election. In accordance with the Rules and
Regulations of the Board, the Regional Director investigated the
objections and on March 3, 1958, issued and duly served upon the
parties his report on objections, in which lie recommended that the
objections be overruled. Thereafter, the Employer timely filed
exceptions to the Regional Director's report. On April 15, 1958, the
Board issued an order directing hearing with respect to the Em-
ployer's objection No. 2, which alleged an offer of financial assistance
to an employee in exchange for his vote for the Petitioner. The
Board stated that this issue "may best be resolved by a hearing" and
ordered that a hearing be held before a hearing officer who should
prepare and serve upon the parties a report containing resolutions of
the credibility of witnesses, findings of fact, and recommendations to
the Board as to the disposition of this issue.
122 NLRB No. 162.