Int'l Union of Operating Engineers, Local 18

National Labor Relations Board - Board Decisions

Feb 4, 1964

145 N.L.R.B. 1492 (N.L.R.B. 1964)

1492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moreover , the National Labor Relations Act and the Board's Rules and Regula-
tions permit any party or person to initiate a charge . The charge initiated by the
California Association of Employers , although initiated on behalf of Russell, also
was filed because the Association regarded the contract , to which Russell was a
party , as affecting not only its own employer members , but Russell 's employees.
In summary , it is found that the facts established by this record warrant an
order requiring the Employer and the Union to cease maintaining a contract that
was entered into in violation of the Act .3
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth in section III, above , have a close,
intimate , and substantial relation to trade , traffic , and commerce among the several
States and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce,
CONCLUSIONS OF LAW
1. Respondent Russell is an employer engaged in commerce or in an activity
affecting commerce within the meaning of the Act.
2. Respondent Union is a labor organization within the meaning of the Act.
3. Respondent Russell , by executing the contract set forth above, on February 20,
1963, violated Section 8(a)(1), (2 ), and (3 ) of the Act, and the Union, by its
execution of the same contract , violated Section 8(b) (1) (A ) and 2) of the Act .4
[Recommended order omitted from publication.]
3 In the case at hand, Respondent Russell , because of severe economic pressure , executed
an agreement with Respondent Union. That he did so with great reluctance is fully sup-
ported by the evidence in the record . The facts in this case are readily distinguishable
from the situation presented in Lawrence Frederick et al., d /b/a Hollywood Ranch Market,
93 NLRB 1147 , where the employer and the union entered into an arrangement solely for
the purposes of having the Board assist one of the unions in its organizing efforts. In
that situation the Board held that It would be an abuse of its processes to assist a union
In its organizing campaign because it and the employer had, in effect , "rigged" the facts
upon which a charge was filed. Here , Russell invokes the processes of the Board to avoid
the effects of a contract entered into under duress. While economic pressure as a form
of duress is permitted to effect a binding agreement In the area of industrial relations, the
National Labor Relations Act does not countenance agreements made under duress by a
union when it is not the majority representative of the employees covered by such contract.
4It Is well established that a collective-bargaining agreement entered Into by an em-
ployer and a labor organization which does not represent a majority of employees in an
appropriate bargaining unit provides illegal assistance to the labor organization and re-
strains and coerces employees , thereby violating Section 8 ( a) (1) and ( 2) and Section
8(b) (1) (A ) of the Act . The Crossett Company, 140 NLRB 667.
Inasmuch as the contract on February 20, 1963, contained a union -security clause, and
the Union did not represent a majority at the time it was executed , and because Section
8(a) (3) by its terms requires a union majority status to effect a valid union -security
clause, It follows that the execution of this contract was a violation of Section 8(a)(3)
on the part of Russell , and of 8 ( b)(2) on the part of the Union . Robbie Shoe Corp.,
113 NLRB 314.
International Union of Operating Engineers , Local 18, AFL-CIO
[Frazier Davis Construction Co.] and Melvin M. Jackfert.
Case No. 8-CB-638. February 4, 196/.
DECISION AND ORDER
On October 7, 1963, Trial Examiner Thomas F. Maher issued his
Decision in the above-entitled proceeding, finding that the Respondent
had not engaged in the unfair labor practices alleged in the complaint
and recommending that the complaint be dismissed, as set forth in the
attached Trial Examiner's Decision. Thereafter, the General Counsel
145 NLRB No. 146.
INT'L UNION OF OPERATING ENGINEERS, LOCAL 18 1493
and the Charging Party filed exceptions to the Trial Examiner's De-
cision together with supporting briefs, and the Respondent filed a brief
in opposition to exceptions and briefs of the General Counsel and
Charging Party.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial Ex-
aminer's Decision, exceptions and briefs, and the entire record in this
ease, and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner with the additions and modifications herein-
after set forth.'
The complaint herein alleged that the Respondent violated Section
8(b) (2) and (1) (A) of the Act by its removal of Melvin M. Jackfert
from its exclusive hiring hall referral list for a period of about 21/2
months because of his activities on behalf of a dissident group in op-
position to Respondent. The Trial Examiner found that Jackfert
was not denied the use of the hiring hall for unlawful discriminatory
reasons and therefore recommended dismissal of the complaint. We
predicate our dismissal of the complaint herein on the fact that the
articles of the applicable contract under which the exclusive hiring
hall referral system operated provided for arbitration of grievances
arising out of its operation; 2 Jackfert invoked the arbitration proc-
esses ; an arbitration hearing was held at which Jackfert appeared and
was represented by counsel ; and on October 16, 1962, the arbitration
board issued its ruling finding that Jackfert did violate the 24-hour
rule and postponing his reregistration to November 1, 1962. Insofar
as can be gathered from the record in this case, the proceedings appear
' In their respective briefs in support of their exceptions , the General Counsel and the
Charging Party contend that Respondent 's action herein barring Jackfert from registering
in its hiring hall referral system for a period of approximately 2l months was arbitrary
and punitive and in violation of Section 8(b) (1) (A). This issue was not alleged in the
complaint nor litigated at the hearing However , in view of the result we reach here, we
find it unnecessary to pass on this contention.
2 The material provisions read as follows:
When an applicant is actually employed , he shall notify the Union's office at which
he is registered within twenty-four hours Failure to do so is an imposition upon
those registered and not employed , and, therefore , such applicant will be barred from
re-registering unless and until he has made application to the Board of Review and
Arbitration , provided for in Section 6 of this Article , and shows good cause for his
failure to give such notice
Any registrant or any Employer who may feel aggrieved by the operation of this
referral system shall have the right to file his grievance in writing within ten (10)
days after the occurrence of the event concerning which he complains with a Board
of Review and Arbitration , consisting of one representative of the Union , one repre-
sentative of the Employer , and an imparial third member to be selected by agreement
of the Union and the Employer , and the decision of this Board shall be final and
binding on all parties.
1494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to have been fair and regular, all parties had agreed to be bound, and
the decision of the arbitration board is not clearly repugnant to the
purposes and policies of the Act. In these circumstances we believe
that the desirable objective of encouraging the voluntary settlement
of labor disputes will best be served by our recognition of the arbitra-
tors' award.3 Accordingly, we find that the Respondent in acting
pursuant to the provisions of the contract did not violate the Act when
it conditionally barred Jackfert from reregistering in its exclusive
hiring hall referral system. Wire shall therefore dismiss the complaint
in its entirety.
[The Board dismissed the complaint.]
MEMBER FANNING, concurring :
I adopt the Trial Examiner's findings, conclusions, and
recommendations.
Spielberg Manufacturing Company, 112 NLRB 1080.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge and amendments thereto filed on August 14, 16, and 28, and No-
vember 5, 1962, respectively, the Regional Director for the Eighth Region of the
National Labor Relations Board, herein called the Board, issued a complaint and an
amendment thereto on May 23 and June 13, 1963, respectively, on behalf of the
General Counsel of the Board against International Union of Operating Engineers,
Local 18, AFL-CIO, Respondent herein, and referred to as the Union, alleging
violations of Section 8(b)(1)(A) and (2) of the National Labor Relations Act, as
amended (29 U S C. Sec 151 et seq ), herein called the Act Thereafter during the
course of the hearing of this matter the complaint was further amended. In its duly
filed answer and amendments thereto Respondent, while admitting certain allega-
tions of the complaint, denied the commission of any unfair labor practice
Pursuant to notice a hearing was held before Trial Examiner Thomas F. Maher
in Cleveland, Ohio, on July 1 and 2, 1963. All parties were represented and afforded
full opportunity to be heard, to present oral argument, and to file briefs with me.
Briefs were filed by Respondent and the Charging Party on August 19, 1963.
Upon consideration of the entire recoid in this case, including the briefs submitted,
and upon my observation of each of the witnesses appearing before me and my
study and consideration of the testimony given by each, I make the following:
FINDINGS OF FACT
1. THE NATURE OF RESPONDENT'S OPERATIONS
International Union of Operating Engineers, Local 18, AFL-CIO, is, by its own
admission, a labor organization within the meaning of Section 2(5) of the Act with
its principal office in Cleveland. Ohio, where it maintains in behalf of its members
contractual relations with the Building Trades Employers' Association. By virtue of
this relationship and by specific collective-bargaining agreements with this Associa-
tion and with Excavating and Paving Contractors Association, General Contractors
Association, and the Labor Relations Division of the Ohio Contractors Association,
Respondent maintains exclusive hiring halls from which it refers, by means of a
referral list, individuals to employment with individual employer members of the
foregoing employer associations. It is further agreed that the members of the fore-
going Building Trades Employers' Association have, by reason of an agreement
among themselves, constituted the Association as a single employer, and that the
members, during the course and conduct of their business operations, purchased and
caused to be transported and delivered to their places of business located within the
State of Ohio goods and materials in excess of $50,000, which goods and materials
are transported to said places of business directly from States of the United States
INT'L UNION OF OPERATING ENGINEERS, LOCAL 18 1495
other than the State of Ohio . Upon the foregoing , therefore , I conclude and find that
the aforesaid Association is an employer engaged in interstate commerce within the
meaning of Section 2(6) of the Act and that Respondent's operations accordingly
affect commerce within the meaning of Section 2 (7) of the Act.
II. THE ISSUE
The substantiality of evidence that the Union's enforcement of its hiring hall rules
was motivated by discriminatory intent.
III. THE ALLEGED UNFAIR LABOR PRACTICES
By virtue of its several collective-bargaining agreements Respondent, as previously
noted, maintained an exclusive hiring hall and referral system for employment in the
Clevelend area for the primary benefit of its members and the employing contractors
covered by the agreement. Melvin Jackfert, a member of the Respondent and an
active participant in efforts to unseat its incumbent officials, was removed from
the referral lists of the Respondent's hiring hall for a period of 21/2 months, thus
forming the basis for this proceeding. It is Respondent's contention that Jackfert's
removal was occasioned by his conceded failure to abide by the hiring hall rules.
General Counsel, on the other hand, alleges that Respondent's action was motivated
by Jackfert's activities in behalf of the opposition group within the union organiza-
tion, a well-recognized form of concerted activity protected by the statute.' And
because this is so a more detailed consideration of the facts and circumstances is re-
quired to properly assess the state of mind motivaiting Respondent's apparently proper
action.
A. The referral system
The hiring hall and referral system in question operates pursuant to the following
procedure set forth in article III of the current agreement between Respondent and
the Building Trades Employers' Association, being also article III, sec. 2(D) et seq.
of the Excavating and Paving Contractors Association (usually referred to simply as
section 2(D)):
D. When an applicant is actually employed, he shall notify the Union's office
at which he is registered within twenty-four hours. Failure to do so is an im-
position upon those registered and not employed, and, therefore, such applicant
will be barred from re-registering unless and until he has made application to
the Board of Review and Arbitration, provided for in Section 6 of this Article,
and shows good cause for his failure to give such notice
E. When an ,applicant becomes regularly employed for a period of not less
than twelve (12) working days, his name shall be removed from the register.
Such applicant must re-register when he is again available for employment. If
an applicant is employed for less than twelve (12) working days, he shall be
restored to his previous position on the register when such employment
terminates.
F. Applicants must notify the Union office in which they are registered by
telephone or letter or telegram, or in person, of their continued availability for
employment, within thirty (30) days after the date of last registration or re-
registration, in order to maintain their places on the (registers.
It is estimated that under this arrangement 10,000 referrals are made annually out of
the northern Ohio area office, being District I of Local 18, and that of this number
500 or 600 are nonmembers. When an applicant for employment registers and there-
after reregisters he does so by completing a registration or referral card on which he
sets forth, among other things, the work for which he is qualified, the names of his
previous employers, and his last date of employment Because of distances involved
reregistrations may be, and frequently are, accomplished by telephone with the office
clerical staff filling out the card for the registrants 2 On the basis of information
thus supplied the applicant is assigned his appropriate priority on the referral list and
is referred to an available job by the working staff when his name is reached. When,
as a result of such a referral, the applicant is employed he must, as required by the
rules, so notify the referral office within 24 hours. subject to the penalty of being
barred from reregistering upon his failure to give such timely notice.
'Local 138, International Union of Operating Engineers (A. Cestone Co ), 118 NLRB
669, enfd 254 F 2d 958 (,CA. 2).
2 By his own admission a number of Jackfert 's reregistratlons were accomplished in this
manner.
1496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Frequently registrants in the referral system secure employment by their own
efforts and independent of the referral machinery, usually by visiting at a jobsite.
In such cases-and the instant situation provides an apt example-the usual reporting
rule obtains; namely, that within 24 hours of his employment he must so notify the
office, subject to penalty for his failure to do S0.3 According to Respondent's Busi-
ness Agent Frank Roviscane, whom I credit, the rule requiring the notification upon
independent procurement of employment has been violated by only two member-
participants of the referral system. One of these, Melvin Jackfert, provides the
theme for this proceeding.
B. Sequence of events
1. Jackfert's union activity
The opposition movement in Local 18 does not appear to have been either mini-
mal or isolated,4 nor was Melvin Jackfert a mere vocal spectator. Thus by his own
admission he has, during the past 5 years, initiated several actions within the Union
itself and has filed numerous lawsuits in the State and Federal courts and unfair
labor practice charges before the Board, all directed to the objective of unseating
union officials whose most recent tenure of office has been assured by a member-
ship vote of 2,700 to 1,700 in June 1962.5 In 1960 he initiated charges with the
Union against the local officers, alleging misapplication of funds. He thereafter
filed suit in Federal court for the removal of Local Vice President Stevens under
applicable provisions of the Landrum-Griffith Act, and subsequently filed a libel
suit against Stevens and other Local 18 officials in the Ohio Court of Common
Pleas. Both actions have since been dismissed, the libel suit being retained
against the named officers as individuals. Earlier, in 1958, he filed charges with
the Board against the Union in Case No. 8-CB-329 which were thereafter dis-
missed. Again in 1961 he filed charges against the Union in Case No. 8-CB-492,
which were also dismissed. Finally, in addition to the instant proceedings in which
Jackfert actively participated through counsel as Charging Party, the subject matter
here involved was likewise the subject first of an unsuccessful injunction proceed-
ing in the Federal district court and thereafter in a companion lawsuit wherein the
complaint has since been dismissed.6
2. Jackfert's employment activity
Records submitted as joint exhibits at the hearing reveal that for a 5-year period
ending in August 1962, Melvin Jackfert was employed with a degree of constancy
that was, by his own admission, "an amazing record" in the heavy construction
field. Thus he was referred to and worked at jobs varying in duration from 2
month (a job with General Excavating in 1959) to 15 months (a job with Hunkin-
Conkey in 1960-61), and accepted numerous short-term referrals (1 to 10 days)
throughout the period?
3 The foregoing is a synthesis of the credited explanation of the operation of the referral
system given by Frank Roviscane, business agent of District 1 of the Respondent.
4 See Local Union No. 18, International Union of Operating Engineers, AFL-CIO (Earl
D. Creager, Inc.), 141 NLRB 512
5 The results of this election were noted in Local 18 et al ., supra.
6Jaekfert v. Local Union No's 18-A, 18-B, and 18-C, International Union of Operating
Engineers, et al., Civil 62-722, U.S D C., Northern District of Ohio, Eastern Division
7 The following was his recorded work history between 1958 and 1962:
June 19, 1958, to May 22, 1959_________________________ Hunkin-Conkey.
May 26, 1959, to May 28, 1959_________________________ Tag Construction.
June 1, 1959, to August 7, 1959________________________ General Excavating.
August 31, 1959, to September 1, 1959__________________ Boyas.
September 14, 1959, to September 15, 1959_______________ National Engineering.
September 16, 1959, to December 15, 1959________________ Norton Construction
April 11, 1960, to April 12, 1960________________________ Schirmer-Peterson
April 14, 1960, to April 23, 1960________________________ Austin Co.
August 1, 1960, to November 1, 1961____________________ Hunkin-Conkey.
November 7, 1961, to November 17, 1961________________ Commercial Contracting.
November 20, 1961, to January 4, 1962________________ __ Hunkin-Conkey
May or June 1962 to July 25, 1962_____________________ Schirmer-Schneider
December 10, 1962, to December 11, 1962________________ Gallo
December 20, 1962, to December 28, 1962________________ Flint Wrecking
February 7, 1963, to April 8, 1963______________________ Commercial Construction.
April 17, 1963, to April 20, 1963_______________________ Flint Wrecking
June 17, 1963, to ----------------------------------- Commercial Construction.
INT'L UNION OF OPERATING ENGINEERS, LOCAL 18 1497
He received annual compensation during this period averaging over $6,000,
excepting only 1962 when he had an unexplained period of employment for the
early part of the year.8
During the course of his employment 'and his association with the referral system
Jackfert evidenced two varieties of opposition to it: first, he had voiced objection
to the referral by the Union's exclusive hiring hall of operating engineers who are
not union members, albeit this is the only manner in which an exclusive hiring hall
may legally operate; 9 and secondly, and of direct significance to this proceeding,
he admitted to having failed on three occasions since November 1961 to abide by
the reporting rule to which he subscribed as he registered for employment through
the referral system.io
Specifically Jackfert sought and obtained employment from Commerical Con-
tracting on November 7, 1961, and Hunkin-Conkey on November 20, 1961, and
in neither instance did he report the fact to the hiring hall office within 24 hours,
or indeed at all, as required by section 2(D) of the hiring hall agreement to which
he, as an applicant for employment, became a party by registering and thereafter
reregistering for work. Although in each instance Jackfert's violation of the report-
ing rule was not on his registration card no punitive action was taken by the
Respondent. There was, however, a spate of complaints from members of the
Local which came to the attention of Buisness Agent Roviscane through the other
business agents of the Local." Upon the termination of his employment on
January 4, 1962, Jackfert thereafter reregistered with the hiring hall periodically
as required by the rules, and continued in registered status until August 15, 1962.
In this respect it appears that on several occasions he reregistered by telephone
and that he made no registration efforts after March 1962. Despite this, however,
the Respondent's officials continued his registration in full force and effect 12
On or about May 1, 1962, Jackfert, through his own efforts, obtained a job with
Schirmer-Schneider, a member of the Building Trades Employers' Association 13
8 Earnings by year were •
1959-a figure unavailable (worked full time)
1960-$6,364
1961-$7,511
1962-$2,187
With respect to the unexplained employment during the period between January 4 and
May or June 1962 it is to be noted that this was the preelection period during which
Jackfert testified he was active in behalf of the insurgent group as cochairman of its elec-
tion committee It is suggested that this might well account for his failure to work during
that period. In any event there is no suggestion that he was prevented from doing so
0 Local 357, International Brotherhood of Teamsters etc, v N L R.B (Los Angeles-
Seattle Motor Express), 365 U S 667.
10 The registration card which an applicant for referral signs bears an acknowledgment
that the applicant has read the referral policy as contained in the collective-bargaining
agreement (supra) and that he agrees to comply with it
11 The credited testimony of Roviscane
'- The interpretation of Jackfert's registration status comports with General Counsel's
theory of the case wherein lie states on the record: "It is my contention that Air
Ja'ekfert always was in the referral system up to and including the 15th or the 13th, what-
ever it was, of August when he was removed
"I said he could have been removed but he wasn't My contention is here, that he is in
the system I have never contended anything else during the whole handling of the case"
Counsel for Charging Party Jackfert contends, on the other hand, that not having re-
registered for the period either by telephone or in person he was not in the referral system
and therefore was not subject to union discipline. To the extent that this theory conflicts
with General Counsel's I reject it, for it was within his domain to so formulate the coin-
plaint and its prosecution " Piasecki Aircraft Corp v. N L R B , 280 F 2d 575, 588 (C A 3).
18 Jackfert's starting date is a subject of contradictory testimony but it is not significant
to the issues herein. The ensuing account of his difficulties is based upon the credited testi-
mony of the Respondent's 'business agent, Roviscane, and its president, John Possehl, and
of John Hall, executive manager of the Employer Association Having observed Jackfert
as a witness and studied his testimony I do not credit it except only insofar as it con-
stitutes an admission against his interests herein, or is corroborated by the testimony of
other witnesse' Jackfert impressed nee as a belligerent, evasive witness whose testimony
on numerous points I found to be self-contradictory, and in one instance, at least, contrary
to an earlier sworn statement. Illustrative of his contradictions was his testimony on
direct examination that be worked for Schirmer-Schneider for 10 weeks. Thereafter on
cross-examination, to defend his insistence that he did not begin working there until
June 1, he testified he had worked 6 or 8 weeks
1498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Again he failed, as he had on the two previous jobs, to notify the referral office
of his employment, as required by the rules to which he automatically subscribed
by registering in the system. Upon learning of Jackfert's employment and his
failure to notify the Respondent of it, the then director of the hiring hall, Business
Agent Earl Bowen, since deceased, called the employer association offices and
spoke to Executive Manager John Hull. He first inquired if Schirmer-Schneider
was a member of the Association, and upon learning that it was informed Hull that
the company had hired Jackfert and another individual in violation of the referral
system provided for in the agreement. Bowen then requested that the company
lay off the two individuals and replace them through the referral system. Hull
communicated Respondent's demand to the company and as a result arranged a
conference between its president and the president and vice president of Local 18.
At this conference President Schirmer of the company acknowledged the violation
and went on to explain that the job on which Jackfert was working was approach-
ing completion and that Jackfert was scheduled to be laid off thereafter. He and
Hull urged the Local 18 representatives to permit the company to complete the job
and they gave their assurances that in the future they would hire all men through
the referral system. The Local 18 representatives acquiesced in this request with
the understanding that in the future the company and other association members
would comply with the rules of the system.
At no time during the foregoing conversations did Respondent's representatives
base their reasons for complaint upon Jackfert's or the other employee' s allegiance
to the opposition group in the Union. Nor indeed was the subject of this affiliation
ever raised. Thereafter Schirmer found that Jackfert's job would take an added
day or two before completion and he communicated this fact to President Possehl
who agreed to the extension. Jackfert's work was completed and he was terminated
on July 25. He was not replaced. Another operator was hired shortly thereafter
for a job which Association Manager Hull states Jackfert was not competent to
operate-a backloader. A review of Jackfert's work record since 1954 supports
Hull's assertion in that it discloses that Jackfert never operated this type of
machinery.
On July 30, 1962, Jackfert telephoned the hiring hall office to reregister. A girl
in the office made up a reregistration card (referred to frequently as an "out-of-
work ticket") for him. This card was referred to President Possehl who had, as
noted above, been seriously concerned with the conceded misuse of the referral
system in Jackfert's case and the complaints he had received concerning it. After
some further consideration of the matter Possehl on August 13 dictated a letter
to Jackfert bearing that date but actually mailed on August 15.14 The letter stated
as follows:
AUGUST 13, 1962
Mr. MELVIN JACKFERT,
8515 Lake Avenue,
Cleveland, Ohio.
DEAR SIR: We have been advised that you have attempted, through a tele-
phone call, to place your name on the list of applicants for employment.
Please be advised that your attempt to use the referral plan is at present
denied. The reason for this denial is your repeated failure to abide by the
terms and provisions of this referral system.
You are referred to the following: "When an applicant is actually employed,
he shall notify the Union's office at which he is registered. Failure to do so is
an imposition upon those registered and not employed, and therefore such
applicant will be barred from re-registering unless and until be has made
application to the Board of Review and Arbitration, provided for in Section 6
of this Article and show good cause for his failure to give such notice."
14 It is contended that the letter, postmarked as It was in the post office at 8-30 p.m
August 15, was actually prepared after and as a consequence of the service of the charge
in the Instant case on August 15 Respondent's President Possehl credibly testified,
and without denial, that the decision herein was made before the letter was dictated on
August 13 and that the failure to mail the letter forthwith while he was absent from the
city was unauthorized and not known to him, and I so find Upon such a finding I must
necessarily conclude that there Is no causal relationship between Respondent's action and
the filing of the charge in this case
INT'L UNION OF OPERATING ENGINEERS, LOCAL 18 1499
You have violated these conditions to the detriment of the other registrants.
You will be barred from the use of the facilities of the referral system pend-
ing such action as may be taken by the Board of Review and Arbitration.
Respectfully yours,
(S) John Possehl,
JOHN POSSEHL,
President.
JP:ms I
Jackfert availed himself of the appeals procedure afforded him by the Respondent
and a hearing was held before the board of review and arbitration on October 3,
1962. The board was composed of three members, Hull for the Employer, Vice
President Stevens for the Union, and an impartial member. Jackfert was represented
by counsel and was afforded a full hearing. It was determined that Jackfert had in
fact failed to notify the Union of his employment secured by his own efforts as re-
quired by the rules of the referral system and that he was thereafter properly denied
the use of the facilities by the union officials. The board, in officially sustaining the
Union's action, postponed Jackfert's use of the referral system until November 1,
1962.
Thereafter on November 1, 21h months after his suspension, Jackfert again reg-
istered with the referral system and has since that time been referred to jobs in the
usual course of the system's operation.')
C. Conclusions
A union may quite properly deprive a member of the use of its referral system
for failure to follow the established hiring procedures; 16 and more specifically, for
failure to abide by such portions of the established hiring procedure which require
that employees hired at a jobsite notify the business agent that they were no longer
on the out-of-work list and advise him where they were employed.17 Such being the
case, it is evident, and indeed admitted by all parties, that Respondent here would
properly be within its rights to insist that a participant abide by the notification re-
quirement as a condition of continuing use of the referral system Holding as I have,
therefore, that Jackfert was registered during the period when he had failed to give
the proper notification (Charging Party's opposite position to the contrary notwith-
standing, supra, footnote 12) It follows that as a prima facie proposition Respond-
ent properly deprived Jackfert of the use of the referral system for good and suffi-
cient reason, as provided by the rules of the referral system and by the collective
agreement of Employer and Union. What remains to be determined, therefore, is
whether this otherwise legitimate enforcement of an established rule was motivated
by considerations not relevant to the usual operation of the hiring hall.
Assessing a state of mind is a difficult chore at best. It becomes doubly difficult
when the tools for assessment are nothing more substantial than suspicion, specula-
tion, and surmise The instant facts present such a problem. Here, for example,
I am asked to read evil connotations into Respondent's application of its rule simply
because Jackfert was not in a favored position in its membership Such an argu-
ment suggests, however, not so much a likelihood of discrimination against him, but
rather his implicit demand for special treatment because he is a combatant In a
word, the argument would bestow immunity upon Jackfert because of his adversary
status. I perceive neither equity nor logic in such a proposition and accordingly
reject it
The facts here are essentially very simple. Three times in succession Jackfert
saw fit to ignore the rule requiring him to give notification of employment that had
been procured at the jobsite. This offense, it is credibly testified, was committed by
18 It is suggested in the record that certain assignments which Jackfert has been given
during this most recent period were fraught with complications attributable to his opposi-
tion to the Union's administration As this is the testimony of Jackfert whom I do not
credit I find it unnecessary to refer further to the matter
"Laborers and Ilodcarriers Union, Local 652, AP+L-CIO (Hood-River-Neill), 135
NLRB 43
17 L ocal Union No 41, Sheet Metal Workers' 4ssociation, AFL-CIO (Sheet Metal, Air
Conditioning and Roofing Contractors' Association of Central Indiana, Inc), 136 NLRB
78 7, 794-795
1500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
only one other person , and that person was only reprimanded . I am not persuaded
that Jackfert's more stringent punishment for his offense was discriminatory, for
the other offender , one Holley, failed but once to notify the office. Jackfert's first
and second offenses, unlike Holley's first offense , was not even the subject of
reprimand . He stands on weak footing indeed , therefore , to complain that the
punishment for his third offense exceeded Holley's first.
Nor am I persuaded that Jackfert's propensity for litigation gives him license to
Bout rules that are applicable to everyone else who uses the referral system. The
union officials at whom Jackfert had been directing his legal barrage would be
-callous indeed had they not flinched occasionally as a new charge was filed or new
lawsuit initiated . It is another thing, however, to translate such natural annoyance
as I assume to exist (the record is silent on this point ) into bad faith. All the record
discloses is forbearance on two occasions and enforcement of the rules on a third.
In the absence , therefore , of credible evidence even suggesting a discriminatory motive
in the enforcement of its referral system rules by depriving Jackfert of registration
privileges from August 13 to November 1, 1962, I shall recommend that the complaint
be dismissed in its entirety.
RECOMMENDATION
In view of the foregoing findings of fact and conclusions of law it is recommended
that the complaint be dismissed in its entirety.
Setzer's Super Markets of Georgia, Inc. and Marian E. Landon,
Petitioner and Retail Store Employees Union , Local 441, Re-
tail Clerks International Association , AFL-CIO. Case No.
10-RD-286. February 4, 1964
DECISION, ORDER, AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National Labor
Relations Act, a hearing was held before Hearing Officer David M.
Vaughan.' The Hearing Officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Fanning, Brown, and Jenkins].
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer 2
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9(c) (1) andSection2(6) and (7) of the Act.
1 Retail Store Employees Union , Local 441 , Retail Clerks International Association,
AFL-CIO, hereinafter called the Retail Clerks , was notified of the date, time , and place
of the hearing , but failed to make an appearance . The Hearing Officer properly proceeded
without the Retail Clerks.
2 Meat Cutters , Packinghouse and Allied Food Workers, District Union 433 , AFL-CIO,
herein called the Intervenor , was permitted to intervene at the hearing on the basis of its
current contract with the Employer covering the meat department employees.
145 NLRB No. 139.