Intl. Un. of Operating Engineers, AFL-CIO, Loc. 819

National Labor Relations Board - Board Decisions

Jun 25, 1970

183 N.L.R.B. 1124 (N.L.R.B. 1970)

1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Union of Operating Engineers , TRIAL EXAMINER'S DECISION
AFL-CIO, Local 819 (Holloway Construction
Co.) and Luther D. Kirby , an Individual. Case
1 6-CB-472
June 25, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On April 20, 1970, Trial Examiner Alba B. Mar-
tin issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions.
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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulinggs of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, and the
entire record in this case, and hereby adopts the
findings, conclusions,' and recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner,' and hereby
orders that the Respondent, International Union of
Operating Engineers, AFL-CIO, Local 819, Fort
Worth, Texas, its officers, agents, and representa-
tives, shall take the action set forth in the Trial Ex-
aminer's Recommended Order.
' These findings and conclusions are based, in part, upon the Trial Ex-
aminer's credibility determinations to which the Respondent excepts On
the basis of our careful review of the record , we conclude that the Tnal Ex-
aminer 's credibility resolutions are not contrary to the clear preponderance
of the relevant evidence , and we find no basis for distrurbing them Stan-
dard Dry Wall Products , Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3)
R In adopting the Trial Examiner 's proposed remedy, we do not make any
findings as to the effect on the amount of backpay due as the result of Kel-
ley's quitting on July 17 or Kirby's discharge on August 18, but leave the
determination of the effect of these events to the compliance stage of this
proceeding
' As corrected by an erratum on May 1, 1970, amending his order
STATEMENT OF THE PROCEEDING
ALBA B. MARTIN, Trial Examiner: This con-
solidated proceeding, with the General Counsel and
Respondent Union represented by counsel, was
heard before me in Forth Worth, Texas, on January
19, 1970.' The issues litigated were whether
Respondent Union violated Section 8(b)(2) of the
Act by causing or attempting to cause Holloway
Construction Company to discharge Luther D.
Kirby and James C. Kelley on July 7, 1969; and
whether Respondent Union warned prospective
employees that they would not be referred for jobs
unless they joined the Union, and threatened em-
ployees that the Union would cause their discharge
unless they joined the Union. After the hearing the
General Counsel and Respondent filed helpful
briefs which have been duly considered.
Upon the entire record and my observation of
the witnesses I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Holloway Construction Company (Holloway) is a
Michigan corporation with principal offices in
Michigan, engaged in the construction industry as
an earthmoving and underground construction con-
tractor. At the jobsite herein involved Holloway
does grading and drainage work at the new Dallas-
Forth Worth Regional Airport now being con-
structed between Dallas and Fort Worth. During
the 12 months prior to the issuance of the com-
plaint on November 26, 1969, a representative
period, Holloway performed services valued in ex-
cess of $50,000 outside of Michigan and purchased
and received at its various Michigan locations
equipment and supplies valued in excess of $50,000
from outside of Michigan. Respondent admitted
and I find that Holloway is now, and has been at all
times material herein, an employer engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act.
If. THE LABOR ORGANIZATION INVOLVED
Respondent Union, sometimes called the Local
and the Union, is the International Union of
Operating Engineers, AFL-CIO, Local 819, which
is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Contract
Respondent Union and Holloway are parties to a
collective-bargaining agreement which gives the
' The charge was filed by Luther D Kirby, an individual, on August 18,
1969
Y "The Act" refers to the National Labor Relations Act, as amended, 29
USC Sec 151,etseq
183 NLRB No. 114
INTL. UN. OF OPERATING ENGINEERS, AFL-CIO, LOC. 819
Union the first opportunity to fill vacancies, and
provides that selection of applicants for referral to
the jobs by the Union shall not be based on, or in
any way affected by, union membership . The wage
schedule for operating engineers has a miscellane-
ous classification which includes "compressors,
pumps , welders, light plants, generators, con-
veyers." After some original misunderstanding Hol-
loway and the Union consider "pumps" to mean
that vehicles with pumps , such as water wagons, are
under the Union 's jurisdiction and the contract.
B. The Hire and Discharge of Kirby and Kelley on
July 7, 1969
On or about Wednesday , July 2, 1969, Kirby and
Kelley applied to William Foster, Holloway 's grade
superintendent at the project, for jobs running
scrapers , bulldozers , or rollers. Foster told them
that in order to work as operators they would have
to talk to the Union 's job steward . They then ap-
plied to the Union 's steward , Paul Wager.
Kirby, who impressed me as a credible witness,
crediby testified that Wager told them that to be
hired as operators they would have to join the
Union and that under contract with Holloway the
Union operated a hiring hall which they would have
to be hired through . Wager showed them the docu-
ments they would have to sign to join the Local and
said they had to sign them before they could go to
work as operators . Wager took their names, ad-
dresses, and telephone numbers.
As a witness Wager denied telling Kirby he would
have to join the Union to get a job as an operator.
Wager testified , "All I remember mentioned was
the job was union and we go from there, and
Luther took it up that he knew all about it, he had
been in unions before , and that was the end of it
right there ." Wager added that Kirby realized it was
a union job and he would have to do that (join the
Union ). Upon his entire testimony and by his
demeanor I found Wager not as credible a witness
as Kirby and I credit the latter's testimony as set
forth above.
On the morning of Monday , July 7, Superinten-
dent Foster hired four persons to run water wagons.
The latter sprayed water on roads and wherever
needed for compaction . These four were Kirby and
Kelley and also Darrell Applegate and one Wilson,
who separately from Kirby and Kelley had applied
to Foster the previous week and were put to work
on Monday. Foster hired these four without any-
body 's first clearing the matter with Wager or any
other steward . Foster was then under the impres-
sion that the job of operating the wager wagon was
not within the Union 's jurisdiction or under the
contract.
On Tuesday morning, July 8 , Wager met Ap-
plegate and Wilson in the parking lot as they drove
up to go to work . According to the credited
testimony of Applegate , a credible witness, Wager
told them they would have to join the Union in
1125
order to keep on working . Applegate replied that
Mr. Foster had told him that he didn 't have to join
the Union and that he was not going to do so.
Wager then "called Foster over" and Wager and
Foster had an argument, which ended with Foster's
agreement that "we would have to join the union."
Wager and Foster then talked with Applegate and
Wilson again , Wager saying they would have to join
to keep working . Applegate then agreed to join,
and he did so that afternoon. Wager gave him the
cards to sign, one a temporary and showing he was
"in the union " and that he "could work under the
union until I got my [union dues] book ." The other
card was to authorize the Company to deduct Ap-
plegate 's initiation fee from his wages . Applegate
continued working only 2 weeks and quit because
"it was too far a drive " from his home . The record
is silent as to whether Wilson joined the Union, but
Applegate testified on January 19, 1970, that he
thought Wilson was still working on the job.
Most of Applegate 's testimony was undenied by
Wager . Wager testified that on Tuesday morning
Applegate " come to me and talked to me about
Luther getting his name and address , and other
than that, that's about the only conversation I had
with him ." Wager added that Applegate asked him
what he would have to do to join the Union, "and
when he talked about it , he signed up." Foster had
no specific recollection of his conversations with
Applegate on this occasion , and did not deny them.
As Applegate was a credible witness and Wager
did not impress me as such and was an unconvinc-
ing witness, and upon all the evidence , I credit Ap-
plegate 's testimony as set forth above.
Wager had disposed of Kirby and Kelley earlier.
At noontime on Monday , July 7, after seeing them
driving the water wagons that morning , both to
them and to Superintendent Foster , Wager chal-
lenged their right to do so. He gave two alleged
reasons. He said that they had not come to him first
and that he had others on his referral list who
should have had those jobs . To Kirby he referred to
these others as "niggers " and "black boys" and said
that if they "started runnning in ahead of them"
there would be "hell a popping." The additional al-
leged reason was that the Union hadn 't "hired"
them and operators of water wagons were within
the Union's jurisdiction ; and Wager showed Foster
a letter to that effect . Foster testified he then
checked the accuracy of this conclusion with "Hol-
loway 's office " people and learned it to be correct.
Foster then discharged Kirby and Kelley telling
them , according to Foster 's testimony , that if
Wager had men lined up for the job unbeknownst
to Foster , he didn 't see "any alternative but to pay"
them off , " as we do have a contract with the
Operating Engineers to furnish our men out there."
On cross-examination Kirby credibly testified:
I do know for a fact that Mr. Foster wouldn't
put us back to work until we ... signed up with
the Union.... before we went to that union
hall, Mr . Foster tried to talk Mr. Wager into
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
letting us stay on that job and he would not,
because we was not a union member. Then,
Mr. Foster told Kelley and myself, once we got
this straightened up and got that card signed,
to come back and he would put us to work.
C. Kirby Joins Union and Is Rehired
Following their noon discharge, in the afternoon
Kirby and Kelley went to the Union's office, where
they were referred to Clifton English, the business
agent for the airport project. They then went to En-
glish's trailer home and talked to him. Kirby
credibly testified that English told them they would
have to join the Union before they could go to
work on the airport project, and that "Bill Foster
had no more right hiring us" than Kirby's wife had.
English told them he wouldn't deny them the right
to work provided they joined the Union. Then they
arranged to meet at the union office the following
morning.
At the union office on July 8 Kirby and Kelley
signed two documents or cards for English, one
relating to membership until their union "book" ar-
rived, the other authorizing the checkoff of $42.50
per week from wages until the initiation fee of $170
was paid.
On the witness stand English denied that he told
Kirby and Kelley they would have to join the Union
to work out there. He quoted Kirby as stating at the
beginning that he was familiar with the Union and
that he would like to become a member; that he
needed to go to work "real bad." English testified
he told them that the Company had to have
qualified men and that whether they became mem-
bers of the Union had nothing to do with it.
After signing up for the Local the two applicants
returned to the airport and Wager put their names
on the referral list.
Between July 8 and 14 they applied to the
steward for a job every day at 6 a.m. and 4 p.m. but
there were no openings. On July 14 they were given
laborers' jobs. On July 16 Wager recommended
Kirby for, and Kirby was given, a job as a scraper
operator, which job Kirby held until August 18,
when he was discharged following an accident he
had with the scraper. Kelley quit on July 17.
D. Conclusions
The record showed that Kirby3 considered him-
self greatly in need of a job at this time. He worked
6 hours on July 7 and then had no work until July
14, when he accepted a laborer's job at laborer's
pay. As has been seen, English testified that Kirby
told him on July 7 that he badly neded a job. This
means of course that Kirby greatly needed some in-
come, some money. This was confirmed by his re-
porting to the jobsite and applying for a job at 6
a.m. and 4 p.m. every day for several days despite
lack of success. If he had not been in great need it
is doubtful if Kirby, a qualified operating engineer,
would have accepted a laborer's job. Under these
circumstances it seems highly doubtful to me that
Kirby would have voluntarily sought to join the
Union and have some of his badly needed money
checked off to the Union. It seems highly unlikely
to me that he would have joined the Union and
agreed to have $170 checked off for initiation fee
at the rate of $42.50 per week unless he felt under
considerable compulsion to do so. Upon these facts
and considerations I find that the compulsion was
present and that it came from Wager and English.
This was consistent with Wager's compulsion upon
Applegate the following day. Upon the preponde-
rance of the credible evidence in the record con-
sidered as a whole, and despite the contract, I con-
clude and find that, as alleged in the complaint,
Respondent through Wager and English warned
prospective employees that they would not be
referred for jobs unless and until they joined the
Union, and threatened employees that Respondent
would cause their discharge unless they joined the
Union; Respondent thereby violating Section
8(b)(1)(A) of the Act.
In causing Foster to discharge Kirby and Kelley,
Wager talked about preferment for others on his
referral list and about water wagon operators com-
ing under the contract. But the entire record
sustains the conclusion, which I reach, that these
were but pretextual reasons Wager seized upon,
and that the real reason was because he found them
working without having joined the Union. A few
days before Wager had told them that to be hired
as operators they would have to join the Union and
he had shown them the documents to be filled out;
and now here they were operating machines
without having filled out the documents for him or
joined the Union insofar as he knew. In the argu-
ment that ensued Superintendent Foster took the
side of the employees and tried to persuade Wager
to let them continue working, but Wager would not
permit it because they had not joined the Union.
Sensing that membership was the key to their
returning, and not just going to Wager first to
comply with the hiring hall provision, Superinten-
dent Foster then advised Kirby and Kelley to sign
up for the Union and then to come back and he
would put them to work.
That lack of membership rather than the bypass
of the referral system was what motivated Wager to
cause their discharge was further indicated by
Wager's statement to Applegate and Wilson the fol-
lowing day. They also had bypassed Wager when
Foster put them to work on the water wagons; but
on Tuesday Wager said nothing about that and in-
sisted only that they had to join the Union if they
were to continue working. Applegate did so and
' Kelley was not called to testify
INTL. UN. OF OPERATING ENGINEERS , AFL-CIO, LOC. 819
continued working although he was never referred
by the Union.
Wager's suggestion from the witness stand that
Applegate was retained although he had not been
referred by the Union because there was a shortage
of available operators that day is not credited.
When Kirby and Kelley went to the jobsite that
morning from the union hall, at about 11 o'clock,
Wager told them he had 20 or 30 names on his
referral list.
Upon the above facts and considerations and the
preponderance of the credible testimony in the en-
tire record, I conclude and find that, despite the
contract, Respondent Union, through Wager, dis-
criminatorily caused the Company to discharge
Kirby and Kelley on July 7, 1969, because they had
not joined the Union and to encourage membership
in the Union, Respondent thereby violating Section
8(b)(2) and (1)(A) of the Act.'
THE REMEDY
To remedy the unfair labor practices found
above Respondent Union will be required to cease
and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
Respondent Union having caused the discrimina-
tory discharge of Luther D. Kirby and James C.
Kelley, it is recommended that Respondet Union
notify Holloway Construction Company, in writing,
that it has no objection to the employment of Kirby
and Kelley as operating engineers by that Com-
pany, without prejudice to their seniority or other
rights and privileges. It is further recommended
that Respondent make whole Kirby and Kelley for
any lack of pay they may have suffered by reason of
its causing the discrimination against them, by pay-
ing to them an amount equal to that which they
would have earned, but for Respondent's unlawful
conduct, from July 7, 1969, the date of the dis-
crimination, until the date Holloway Construction
Company receives Respondent's letter that Respon-
dent has no objection to that Company's employ-
ment of Kirby and Kelley, less the net earnings of
each during said period (Crossett Lumber Company,
8 NLRB 440, 497-8), said backpay to be computed
on a quarterly basis in the manner established by
the Board in F. W. Woolworth Company, 90 N LRB
289. The backpay obligation of Respondent shall
include the payment of interest at the rate of 6 per-
cent to be computed in the manner set forth in Isis
Plumbing & Heating Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact
and the entire record in the case, I hereby make the
following:
CONCLUSIONS OF LAW
1. Holloway Construction Company is engaged
1127
in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. International Union of Operating Engineers,
AFL-CIO, Local 819, is a labor organization within
the meaning of Section 2(5) of the Act.
3. By warning prospective employees that they
would not be referred for jobs unless and until they
joined the Union, and by threatening employees
that Respondent would cause their discharge unless
they joined the Union, Respondent Union
restrained and coerced employees in the exercise of
the rights guaranteed in Section 7 of the Act, and
thereby violated Section 8(b)(1)(A).
4. By causing and attempting to cause Holloway
Construction Company to discharge Luther D.
Kirby and James C. Kelley discriminatorily on
July 7, 1969, Respondent Union violated Section
8(b)(2) and (1)(A) of the Act.
5. The aforesaid labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law, and upon the preponder-
ance of the evidence in the entire record con-
sidered as a whole , I recommend that International
Union of Operating Engineers , AFL-CIO, Local
819, its officers , agents , representatives, successors,
and assigns , shall:
1. Cease and desist from:
(a) Causing , or attempting to cause, Holloway
Construction Company to discharge Luther D. Kir-
by, James C . Kelley, or any other employee,
because such employee is not a member of Respon-
dent Union.
(b) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which I
find will effectuate the policies of the Act:
(a) Notify Holloway Construction Company that
Respondent Union has no objection to the employ-
ment of Luther D. Kirby and James C . Kelley
without regard to their membership or nonmember-
ship in Respondent Union ; and make Kirby and
Kelley whole , in the manner prescribed in the sec-
tion herein entitled "The Remedy," for any loss of
earnings suffered by reason of causing the dis-
crimination against them.
(b) Post at Respondent Local No. 819's office,
hiring hall, and meeting hall, and at any office at
the jobsite where it conducts its hiring hall, and, the
Company being willing , in the Company 's office at
the jobsite, copies of the attached notice marked
4 Cf Local Union No 369, IBEW, AFL-CIO, and George F Node, its
agent , 143 N LRB 1297 , enfd 341 F 2d 470 (C A 6)
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"Appendix."' Copies of said notice, on forms pro-
vided by the Regional Director for Region 16, after
being duly signed by an authorized representative,
shall be posted by said Respondent immediately
upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous
places, including all places where notices to em-
ployees and prospective employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent Union to insure that said notices are not al-
tered, defaced, or covered by any other material.
(c) Mail to the Regional Director for Region 16
signed copies of the attached notice marked "Ap-
pendix" for posting by Holloway Construction
Company, if said Company is willing to do so. Co-
pies of said notice, to be furnished by the Regional
Director, shall, after being duly signed by an
authorized representative of Respondent, be
forthwith returned to the Regional Director for
posting.
(d) Notify the Regional Director for Region 16,
in writing, within 20 days from the date of the
receipt of this Decision, what steps the Respondent
has taken to comply herewith.'
5 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations, and Recommended Order
herein shall, as provided in Section 102 48 of the Rules and Regula-
tions, be adopted by the Board and become its findings, conclusions,
and order, and all objections thereto shall be deemed waived for all
purposes In the event that the Board's Order is enforced by a Judgment
of a United States Court of Appeals, the words in the notice reading
"Posted by Order of the National Labor Relations Board" shall be
changed to read "Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations
Board "
6 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT cause or attempt to cause Hol-
loway Construction Company to discharge
Luther D. Kirby and James C. Kelley, or any
other employee, because such employee is not
a member of Respondent Local 819.
WE WILL NOT warn propsective employees
that they will not be referred for jobs unless
and until they join Local 819.
WE WILL NOT threaten employees that Local
819 will cause their discharge unless they join
Local 819.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of
the rights guaranteed in Section 7 of the Act.
WE WILL make whole Luther D. Kirby and
James C. Kelley for any loss of pay they may
have suffered as a result of our causing their
discriminatory discharge.
WE WILL notify, in writing, Holloway Con-
struction Company that we have no objection
to the employment of Luther D. Kirby and
James C. Kelley by that Company as
operating engineers without regard to their
membership or nonmembership in Local 819.
INTERNATIONAL UNION OF
OPERATING ENGINEERS,
AFL-CIO, LOCAL 819
(Labor Organization)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, 8A24 Federal Office Building, 819
Taylor Street, Fort Worth, Texas 76102, Telephone
817-334-2921.