Intl. Union of Operating Engineers, Local 12

National Labor Relations Board - Board Decisions

Jun 14, 1967

165 N.L.R.B. 358 (N.L.R.B. 1967)

358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Union of Operating Engineers,
Local Union No . 12 (Ledford Bros.) and
Thomas Connolly . Case 21-CB-2671
June 14,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS JENKINS
AND ZAGORIA
On November 3, 1966, Trial Examiner David F.
Doyle issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a brief in support
thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions' and brief, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner as amended below,2 with the
following additions.
We agree with the Trial Examiner that the
Respondent's demand of Ledford Bros. for
Connolly's discharge on the alleged basis that he had
not been hired through the contractual hiring hall
was not the true reason for the demand, but rather
was a pretext; the true reason being that he was not
a union member. Though there was a valid union-
security contract, Respondent never contended that
Connolly when hired had been requested to comply
therewith. On the contrary, Arthur Ledford's
credited testimony, that, at the time he hired
Connolly in 1962, Connolly made an application for
reinstatement in the Union and that Ledford Bros.
attempted, without success, to get him reinstated, is
uncontradicted. Therefore, there was no obligation
on Connolly to comply with the union-security
provision as long as the Respondent refused him
membership.
' Respondent excepts to the credibility resolutions of the Trial
Examiner It is the Board 's established policy not to overrule a
Trial Examiner 's resolutions as to credibility unless the clear
preponderance of all the relevant evidence convinces us that they
are incorrect Such a conclusion is not warranted here Standard
My Wall Products , 91 NLRB 544, 545 , enfd 188 F2d 362
(C A 3)
On December 3, 1965, after Respondent's agent
Skidmore had repeatedly asked Ledford for
Connolly's discharge, with the only reason ever
advanced by Skidmore being Connolly's lack of
membership, Connolly made another attempt to
obtain reinstatement. As found by the Trial
Examiner, reinstatement was again refused him by
Respondent, through Fitzgerald, its agent. At that
time, Fitzgerald told Connolly that he could not be
dispatched to Ledford Bros., where he was then
working, because he could not qualify for the "A"
list which provided that a member must have been
dispatched to a certain contractor within the last 5
years and have a work history of having been
dispatched from the Respondent's hiring halls.
Fitzgerald told him he would have to go on the "B"
list from which dispatches are made only after the
"A" list is cleared. Yet it was Respondent's past
refusal to reinstate Connolly which prevented him
from qualifying for the "A" list and thus for
continued employment with Ledford. Respondent
also demanded $300 as a reinstatement fee, though
Fitzgerald also stated he saw no reason for giving
Connolly any consideration because he had made no
attempt to join the Union and the Union had too
many members out of work. At the time of the
discharge, Arthur Ledford asked Skidmore why
Connolly could not get into the Union and Skidmore
stated "We don't like him, or something to that
effect." The record shows that Connolly in 1956 had
joined the Machinists Union and had attempted to
get a withdrawal card from Respondent but had
been refused. His membership in the Machinists
Union was known to Respondent and may account
for the "undercurrent of hostility" the Trial
Examiner found in the testimony of Fitzgerald and
Skidmore.
As the record shows, after Connolly was refused
reinstatement, he continued to work. Because of its
past refusals to admit Connolly to membership,
Respondent placed its demand for his discharge on
the basis that he had not been hired through the
union hiring hall 4 years before. We agree with the
Trial Examiner that this reason was a palpable
pretext to cover the basic reason, Connolly's lack of
membership which had been denied for reasons
other than his failure to pay the usual financial
obligations of acquiring or retaining membership in
Respondent.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
- Contrary to the Trial Examiner's statement in the last
paragraph of the Concluding Findings, under section III, that
Skidmore did not inform Connolly of how much the reinstatement
fees were, we find Connolly testified that Skidmore in August or
September 1965 advised him the fee was $300
165 NLRB No. 46
INTL. UNION OF OPERATING ENGINEERS, LOCAL 12
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, International
Union of Operating Engineers, Local Union No. 12,
Santa Ana, California, its officers, agents, and
representatives, shall take the action set forth in the
Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
DAVID F. DOYLE, Trial Examiner: This proceeding, with
the parties represented by the counsel, was heard by me in
Los Angeles, California, on May 31, 1966, on complaint of
the General Counsel and answer of the Respondent. The
issues litigated were whether the Respondent had violated
Section 8(b)(1)(A) and (2) of the Act by certain conduct
more fully described hereinafter i
At the hearing the parties were afforded full opportunity
to present evidence, to examine and cross-examine
witnesses, to argue orally upon the record, to submit
proposed findings of fact and conclusions of law, and to
file briefs. Both the General Counsel and the Respondent
have filed briefs which have been considered by the Trial
Examiner.
On the record as a whole, and from my observation of
the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
At the hearing counsel stipulated to certain facts in
regard to the business operations of the Company. Upon
the stipulation, I find that Ledford Bros. is, and has been
at all times material hereto, a partnership comprised of
Arthur E. Ledford and John W. Ledford with its principal
place of business at Long Beach, California In the course
of the operations of the partnership during the 12 months
preceding the issuance of the complaint, the Company
caused to be purchased, transferred, and delivered to its
Long Beach place of business goods and materials valued
in excess of $50,000 which were purchased from suppliers
who received the said goods and materials in interstate
commerce directly from points outside the State of
California.
Upon the stipulated facts, I find that the Company is an
employer engaged in operations affecting commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is not disputed and I find that, at all times material
herein, the Union has been and is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
Thomas Connolly, the Charging Party herein, for
several years prior to January 5, 1966, had been an
' In this Decision International Union of Operating Engineers,
Local Union No 12, will be referred to as the Respondent or the
Union, Ledford Bros , as the Company, the National Labor
Relations Board, as the Board, the General Counsel of the Board
and its representative at the hearing, as the General Counsel, and
the Labor Management Relations Act, 1947, as amended, as the
359
employee of Ledford Bros. Counsel for the parties
stipulated that, on that date, the Union requested the
discharge of Connolly by Ledford Bros. and the Company
on that date, discharged him.
The General Counsel contends that Connolly was hired
by Ledford Bros. in January 1962; during the month of
August 1965, Connolly attempted to obtain membership in
the Union and that such membership was denied Connolly
for reasons other than his failure to tender periodic dues
and initiations fees; and that on January 5, 1966, the Union
brought about Connolly's discharge from employment at
Ledford Bros., thus violating Section 8(b)(1)(A) and (2) of
the Act.
The Union's position is that the employment of Connolly
by Ledford Bros. was in violation of the hiring regulations
in the contract between Ledford Bros. and the Union and
that Connolly was discharged at the request of the union
only because his hiring was in violation of the hiring
regulations set forth in the contract.
B. Undisputed Facts in Background
It is undisputed that Ledford Bros. had for several years
past been a member of Southern California General
Contractors and through that association had contractual
relations with the Union At the hearing Respondent
introduced into evidence the current contract of the
association and the Union, which by its terms covers the
period July 1, 1965, to July 1, 1969.
Section 208 of that contract reads as follows:
Employees employed by one or more of the
Contractors for a period of eight days continuously or
accumulatively shall be or become members of the
Union after the eight-day period, or the effective date
of this Agreement, whichever is later, and shall
remain members of the Union as a condition of
continued employment. Membership in the Union
shall be available upon terms and qualifications not
more burdensome than those applicable at such times
to other similarly situated applicants for membership
to the Union.
Section 209.2.1 reads as follows:
The Contractor shall first call District Dispatching
Office (as referred to above) for such men as he may
from time to time need, and the office shall furnish to
the Contractor the required number of qualified and
competent workmen of the classifications needed and
requested by the Contractor, strictly in accordance
with the provisions of this Article.
It is undisputed that Connolly began his employment
with Ledford Bros. on January 2, 1962. At the hearing
counsel for the parties stipulated that at that time
January 2, 1962, there existed a contract between Ledford
Bros. and the Union which contained a hiring hall
agreement, which required that an employer in hiring
men, first notify the hiring hall who would dispatch men to
the job. If the hiring hall was unable to supply the required
men, then the employer could hire men "off the bank."' It
was undisputed at the hearing that prior to the hiring of
Connolly, Ledford Bros. did not notify the Union that it
needed a man and that Connolly was not dispatched to
Ledford Bros from the hiring hall of the Union.
Act The charge in this case was filed by Thomas Connolly, an
individual, on January 14, 1966, and the complaint and notice of
hearing herein were issued by the Regional Director Region 21,
on March 17, 1966
' This is a term of the unions which means from other sources
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The Oral Testimony
The General Counsel called as witnesses Arthur E. and
John W. Ledford, the partners, and Thomas Connolly, the
Charging Party. The Union called as witnesses two of its
officials, Robert D. Fitzgerald and Paul H. Skidmore."
There is little disagreement between these groups of
witnesses as to the sequence of events which comprises
this controversy. However, there is sharp disagreement
between the witnesses as to what was said and done on
certain occasions. The question presented is sharp, I will
set forth a summary of the testimony of these witnesses.
Arthur E. Ledford, one of the partners in the Company,
testified that he had known Connolly for approximately 20
years and knew the quality of the work which Connolly
performed and liked his work. Ledford said that he
personally hired Connolly. Ledford testified that before he
hired Connolly he talked to a man named Greenstreet,
then a business agent of the Union located at Long Beach.
Through Greenstreet, Arthur Ledford and Connolly tried
to get Connolly reinstated in the Union but they were
unsuccessful in that; so Ledford hired him anyway. After
he hired Connolly, Arthur Ledford did not contact
Greenstreet again.
Apparently for the next 2 years Connolly's employment
was uneventful because both Ledford and Connolly
testified that the first time any union official spoke to
Ledford Bros. or to Connolly about his employment was
about 2 years before the date of the hearing. Both Ledford
and Connolly named the official who first objected to
Connolly's employment, as Paul H. Skidmore, business
agent for the Union.4 Arthur Ledford testified that on the
first occasion that Skidmore spoke to him , Skidmore
asked Ledford where he got Connolly. Ledford replied that
' Glenn I Vawter testified also, but his testimony related to
certain exhibits which were not received in evidence
he had hired Connolly personally and that was all that was
said about the matter.
Arthur Ledford testified that in January 1965, he had a
second conversation concerning Connolly with Skidmore
at his place of business. On this occasion Skidmore said in
effect that he wanted Ledford to get rid of Connolly
because he wasn't a member of the Union. Ledford told
Skidmore that he would think about it and see what he
could do about it. On this occasion Ledford also told
Skidmore that he liked Connolly's work. After that
incident about every 2 months Skidmore dropped by the
Ledford Bros. job, saw Connolly working, and asked
Ledford if he wouldn't get rid of Connolly. On these
occasions Skidmore did not give any reason for asking
Ledford to get rid of Connolly. Arthur Ledford stated that
the only time Skidmore gave him a reason for discharging
Connolly was in January 1965 when Skidmore said
Connolly wasn't a member of the Union and to get rid of
him. Arthur Ledford also testified that on none of these
occasions did Skidmore ever say anything about
Connolly's not having been hired through the Union's
hiring hall.
In November 1965, after one of Skidmore's requests,
Ledford gave Connolly time off to go to the Union and see
about getting in the Union. When Arthur Ledford spoke to
Connolly about joining the Union, Connolly said that he
had the money and was willing to join.
According to Arthur Ledford the matter finally came to
a head on January 5, 1966, when the Union demanded
Connolly's discharge. Arthur Ledford said that he was out
of the yard at the time Skidmore called on this occasion.
When he came back John W. Ledford handed him a slip
that Skidmore had made out. This slip was received in
evidence and reads as follows:
4 Business Agent Greenstreet apparently had dropped out of
the picture during the first 2 years of Connolly's employment
INTL. UNION OF OPERATING ENGINEERS, LOCAL 12
INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL UNION NO. 12
1. TO BE FILLED IN COMPLETELY BY UNION REPRESENTATIVE
Jan. 5, 1965 2:10 p.m.
Ledford Bros .
(Date)
Engineering & Construction
(Time)
2718 Gaviota
(Name of Company)
Yard & Shop
(Job Location)
You are hereby advised that the employee named below is improperly on
your payroll as he is operating or servicing equipment recognized by the
AFL-CIO Building Trades Council and your collective bargaining agreement
as being within the jurisdiction of the International Union of Operating
Engineers , Local Union No. 12. Therefore, this employee is subject to the
dispatch procedures and the Union shop provisions of the contract set forth
in Article II.
You are hereby advised to take immediate, appropriate , corrective action
because of the reason indicated . Failure to take immediate , corrective action
to remedy your breach of contract will require the Union to institute the
remedial provisions of the collective bargaining agreement , including but
not limited to suspension of your right to call for an employee by name for a
period of ninety (90) days.
Thomas Connolly
(Name of Employee)
REASON FOR REQUEST FOR CORRECTIVE ACTION:
A. This employee has been employed more than eight (8) days in the
collective bargaining unit and has not tendered the dues and/or
initiation fees uniformly required of all employees.
B. This employee was not hired through the dispatch hall in conformity
with the dispatch procedures established by the collective bargain-
ing agreement.
Paul H. Skidmore
(Business Representative , Local No. 12 (Signature))
2. TO BE SIGNED BY COMPANY REPRESENTATIVE:
I acknowledge receipt of this request for corrective action and agree that
such action will be taken as to the employee named above for the reason
shown. The Union Representative has not demanded anything other than the
correction of the breach of the collective bargaining agreement and I will
take the necessary action to remedy this breach as required.
NAME ( Signature)
361
Title
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Arthur and John Ledford discussed the situation and
decided that they could not afford to have the Union shut
down their job On this work the Company had a penalty
clause in its contract of $1,000 a day for each day in excess
of the guaranteed date of completion. After discussing the
matter, Arthur Ledford called Connolly and told him that
the Company would have to let him go because they
couldn't afford a shutdown and a penalty on the work that
they were doing.
John W Ledford, the second partner in the firm,
testified that Skidmore did not talk to him about
discharging Connolly at any time before January 5, 1966.
However, he knew that his brother had talked with
Skidmore about Connolly on several occasions. On
January 5, 1966, Skidmore came to their yard about 2 p.m.
He came into the yard where John Ledford was working on
his boat and he said, "I see Mr. Connolly is still here."
Ledford replied in the affirmative. Then Skidmore said,
"Well, I guess I'm just going to have to write you boys up. I
have been telling Arthur to get rid of Tom and I see that he
is not going to do it so I'm just going to have to get tough."
He said, "1 will have to write you up and and if you don't
get rid of Mr. Connolly, I'm just going to have to shut you
down." Skidmore wrote out a piece of paper and asked
Ledford to sign it but Ledford declined to do so.' Then
Ledford said, "I don't see why Tom can't get into the
Union. He's a real good man. We like him and we like his
work. Just how come that he can't join and belong to the
Operating Engineers I understand that he was in there at
one time " Skidmore replied as follows according to John
Ledford.
And he says, "Well he-" something
about-something happened and "we don't like him,"
or something to that effect.
Thomas Connolly, the Charging Party, testified that he
was a member of the Union but "dropped the card in
1956." After that he joined the International Association of
Machinists and is still a member of that Union. He was
hired personally by Arthur E. Ledford and began work on
January 2, 1962. Connolly admitted frankly that he did not
get the job through the union hiring hall. For a long time
after lie began his employment, no official of the Union
ever spoke to him about his employment According to
Connolly the first time that any union official spoke to him
was about 4 or 5 months before he was discharged which
would place the date in August or September 1965. The
first and only one who spoke to him on the job was
Skidmore. On Skidmore's first conversation with him,
Skidmore asked to see his union card. Connolly told
Skidmore that he belonged to the Machinists Union to
which Skidmore replied that, "this was no machine shop."
Then Connolly asked Skidmore to reinstate him in the
Union. Skidmore said if he did reinstate Connolly, it would
cost him about $300 and he would go on the "D" list, and
that Connolly would never get a job. Connolly offered to
pay Skidmore the $300, but he did not remember what
Skidmore said in regard to that payment.
At a later date, on or around December 3, 1965, Arthur
Ledford told Connolly to go to the union hall in Los
Angeles and talk to a Mr. Seymour about being reinstated.
On December 3, 1965, Connolly went to the union hall and
saw Union Representative Dohnke instead of Seymour. He
asked Dohnke to reinstate him. Dohnke asked him how
long he had worked for Ledford Bros. and he told him 4
years. Then Dohnke said that Connolly had a job and he
didn't see any reason why he couldn't be reinstated.
Dohnke then phoned to a Mr. Vawter at the Santa Ana
office of the Union When Dohnke finished this
conversation with Vawter, Dohnke told Connolly to go to
the Santa Ana office, and he would be processed there.
Dohnke told Connolly that Vawter had said, that he would
take care of Connolly.
About noontime Connolly arrived at Santa Ana. He was
shown into the office of the business agent whom he took
to be Vawter. He stated his business and then Vawter told
him, "he didn't see any reason why he should show me any
consideration. I made no effort to join the Union, and that
if I had tried earlier in the year, he might have considered
it, but he had too many men out of work and he couldn't
see any reason for reinstating me." Connolly did not offer
to pay his fee for reinstatement nor did Vawter tell him
what would be necessary for reinstatement. According to
Connolly, Vawter also said that, "I wasn't hired through
the hall and I wasn't eligible because I hadn't been in
there for two and one-half years." This was the first time
that anyone said anything to Connolly about the hiring
hall.
Thereafter, Connolly heard nothing from the Union until
January 5, 1966. On that date Skidmore came into the yard
and saw Connolly working on a truck. Skidmore asked
Connolly if he was working hard and he wrote out a
discharge request and took it to the front office Skidmore
then came back and gave Connolly a copy of this slip and
told him that he could do with it as he pleased This was a
copy of the slip given to Ledford Bros. set forth previously.
Connolly took his copy of the slip to Arthur Ledford and
showed it to him. Ledford said that the only thing he could
do was discharge Connolly; otherwise, the Union would tie
him up. Connolly was terminated that day.
In the course of his cross-examination, Connolly said
that in 1956 he went to work for the Chessley
Transportation Company which was under the jurisdiction
of the International Association of Machinists By contract
between the Company and the Union he was required to
join the International Association of Machinists, so he
dropped the Union at that time; he didn't pay any further
dues and he went to see Greenstreet, then the business
agent for the Union, and asked him for a withdrawal card,
but Greenstreet did not give it to him On cross-
examination, Connolly was questioned very closely as to
the identity of the man to whom he talked at Santa Ana
and whom he had identified as Vawter. He said that his
conversation with this individual lasted about 3 minutes
and that he had never seen Vawter before nor after that
date. When pressed by the cross-examiner for a
description of Vawter, he said that he did not know the
color of Vawter's hair. He only recollected that the man
was between 45 and 50 years of age and a good-sized man.
At that point Connolly was asked this question:
Q. Are you sure that the man you spoke to was
Mr. Vawter?
A. No, I am not positive, I took the man's word He
said he was Mr. Vawter, that is all 1 know. I had never
seen him before and have never seen him since.
Connolly was then asked if he knew a man by the name of
Fitzgerald who was also an official of the Union, and he
said that he did not know Fitzgerald. In answer to the next
question, Connolly explained that when he talked to the
receptionist at Santa Ana, the young lady told him that
Fitzgerald wasn't there, but Vawter was in the office.
Connolly reiterated that the man in the office told him that
he would be put on the "D" list because he hadn't been in
' This is the discharge slip set forth previously, G C Exh 2(a)
INTL. UNION OF OPERATING ENGINEERS, LOCAL 12
the Union for 2-1/2 active years, but he admitted that the
man might have said the "B" list. The man did not tell
Connolly that in connection with the list he would not be
able to be asked for, by Ledford Bros., by name.
After the noon recess, counsel for the Respondent asked
Connolly to identify one of two men who were requested to
stand in the courtroom, as the one he talked to at Santa
Ana. Connolly identified one of the men who proved to be
Robert D. Fitzgerald. It is undisputed that Seymour is the
business manager of the Union, Dohnke is an official of the
Union in its Los Angeles office; Vawter had the title of
senior representative in the Union's District 7, embracing
both Long Beach and Santa Ana. Fitzgerald was an official
of the Union working in District 7 and was the district
representative at the time of Connolly's interview with him
at Santa Ana The Trial Examiner asked Connolly if the
man he had picked out, and who was Fitzgerald, was the
man to whom he had talked at the Santa Ana office The
witness said that it was When questioned further by the
Trial Examiner, Connolly explained that he was mistaken
as to the identity of the person to whom he talked in the
conversation at the Santa Ana office of the Union but he
said that Fitzgerald had said to him these things which he
had attributed to Vawter previously. He said that the
conversation which he had related as taking place with
Vawter actually occurred with Fitzgerald.
The Union, in its defense, called three of its officials
Paul H Skidmore testified that he was the district
representative of the Union and that he policed the job
where a business agent encountered a problem and asked
for his assistance. In the course of his duties he visited
approximately six or seven jobs per day. Skidmore
testified that he first talked to Arthur Ledford about
Connolly in June 1965. He recalled the date because this
was prior to the negotiations of a new contract, which was
going on at that time. At a later date but during the
negotiations and the strike which occurred, Ledford called
for some emergency help for a small job in the Shell
refinery. The emergency committee called Skidmore who
went out to the job and talked to Ledford At that time
Skidmore asked Arthur Ledford if Connolly was still on
the payroll and asked him if he would do something about
it again. Ledford said that he would. This was in July 1965.
On November 30, Skidmore went in Ledford Bros. yard
in the evening and he discovered another man by the name
of Ray performing work and he knew that this man was not
properly cleared. On the next morning he went to the yard.
When he got there, Connolly and another man named
Baril, who also was not properly cleared, were doing
heavy-duty repair work on a tractor Skidmore took
Ledford by the arm and pointed out the two men and
explained that they were doing engineers' work and were
not properly cleared. Ledford said he would take care of it
right away, and that he would see to it that they didn't do
any more repair work. Ledford said he would take
Connolly off the job immediately Skidmore also testified
that he talked to Ledford on December 16 and at that time
Arthur Ledford told him that Connolly was not working for
the Company. On the Saturday before Skidmore
requested Connolly's discharge, he received a phone call
that Connolly was still on the payroll of Ledford Bros. and
that he could be found working on the Pico Avenue job in
the harbor. On January 5 at 2 o'clock in the afternoon he
went in the yard and Connolly was doing heavy-duty repair
work on a truck, and under the Master Labor Agreement
this work was within the jurisdiction of the Union. He then
made out the discharge slip and gave one copy to John
363
Ledford who refused to sign it and gave Connolly the
carbon copy.
On cross-examination Skidmore said that on the first
occasion that he went to the yard he talked to Connolly. He
asked to see Connolly's card and Connolly said he was not
a member of the Union, he was a machinist. Connolly then
told him in great length the problems he had in the past
with Greenstreet. Skidmore said, "Apparently he had
been very unhappy with some of the problems he had with
Mr Greenstreet, but he did mention the fact that he was
not too happy with Local 12. As far as the engineers were
concerned, they never had done him a damn bit of good
and he couldn't work; he tried to get a job somewhere and
couldn't get cleared or something, apparently in the hiring
procedure at that time." At that point Skidmore was asked
the following:
Q. When you first contacted them concerning
Mr. Connolly, did you ask them that he be
discharged?
A. Oh yes, definitely. I didn't ask that he be
discharged I asked that he be taken off our work. Our
agreement doesn't say that we ask for his discharge;
only that he be taken off the work which is assigned to
operating engineers.
He mentioned to Ledford that Connolly was not a member
of the Union and in talking to Ledford he explained the
fact that the AGC, the association to which Ledford Bros
belonged, did not negotiate with the International
Association of Machinists. The negotiations were with the
craft unions.
On further cross-examination, Skidmore said that he
told Arthur Ledford on his second visit to the job that
Connolly was still doing engineer work and that he should
be taken off it Also in June, Skidmore explained to
Connolly that he could reinstate his card at any time he
wanted to. Skidmore further stated that, on the day he
requested his termination, Connolly was neither a member
of nor had he been hired through the hiring hall. Skidmore
explained that he just checked one reason for the request
for discharge on the discharge slip because reason marked
"A" on the slip, nonmembership in the Union, was used
only in cases where there were new agreements and there
were new employees coming into the Union. In the course
of his cross-examination, Skidmore answered one question
as follows:
Q. Suppose Mr Connolly had come in when he
was not a member, would you have dispatched him?
A. No, we don't dispatch nonmembers.
On being questioned further the witness reversed
himself and said that a nonmember may be registered on
the out-of-work list but he would not be dispatched until
those members on the "A" list and those on the "B" list
had been dispatched. Skidmore also said again in the
course of his cross-examination that when he first talked to
Connolly, Connolly let Skidmore know that, "He wasn't
very happy with them [the Union I and didn't want to join;
he had a card and let it drop and let me know why it
dropped." He admitted that when he informed Connolly of
his obligation to join the Union, Connolly did not refuse to
join nor did he offer Skidmore any money as fees.
Skidmore said that he did not tell Connolly to go to the
union hall in Los Angeles to get back into the Union, but
he admitted that he had told Arthur Ledford to tell
Connolly to do that. According to Skidmore, he suggested
that Connolly go to Los Angeles because he couldn't do
anything for Connolly in Santa Ana.
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Robert D. Fitzgerald testified that he was the district
representative of District 7, the top official in charge of the
Santa Ana branch office of the Union. He said that he
remembered having a conversation with Connolly
regarding his employment at Ledford Bros. Around noon
on the day in question, his secretary escorted Connolly to
Fitzgerald's office. Fitzgerald introduced himself and
asked Connolly to be seated. He said that Connolly then
explained that he had been working for Ledford Bros and
asked as to the possibility of getting cleared or dispatched
to this particular Company. Fitzgerald testified that he had
been previously acquainted with the situation of
Connolly's employment at Ledford Bros. "and, checking
back on his previous status and one thing or another
discovered that he never had been dispatched, to my
knowledge, to this particular company."He then advised
Connolly of the hiring procedure and of "A," "B," and
"C" out-of-work list as set forth in the contract. Fitzgerald
testified as follows:
I advised him his first procedure would be to start his
reinstatement, that our records showed, if I recall
correctly, that he was a suspended member since
approximately 1956 which was the last date he was a
member in good standing, and also the last date of
dispatchment, or thereabouts, and I was going to
procede to get him a card if he was desirous of
starting his reinstatement . I explained the amounts
due and the amount that would be forthcoming to
start his reinstatement.
The amount to be paid for reinstatement in Connolly's
case was $300, with a minimum of one quarter of $75 down
with the application. According to Fitzgerald, Connolly
said something about Greenstreet not having been of much
help to him and he didn't think that Fitzgerald would be of
much help either. Connolly did not offer to pay the
reinstatement fee and that just about ended the
conversation, which lasted about 10 minutes. Connolly's
last remarks were, "Well, apparently you can't do me any
good."
In the course of his testimony, Fitzgerald explained that
there are three work lists under the current contract with
three groups of employees these being lettered "A," "B,"
and "C" groups., Fitzgerald said that to his knowledge
there never was a "D" out-of-work list. Fitzgerald said
that, at the time Connolly came to see him, it was a slack
time and it was normal for the Union to have three or four
hundred men on the "A" out-of-work list, but during the
summer it was not a slack time. Fitzgerald denied that he
said to Connolly, "You don't deserve any consideration for
reinstatement." He also denied that he said, "I've got so
many out of work 1 can't consider your reinstatement."
Concluding Findings
Upon a consideration of all the evidence, I find that the
Union used Connolly's lack of clearance or dispatch as a
pretext for securing his discharge, when the real reason for
its request for his discharge was his lack of membership in
the Union.
As to the conflict in the testimony of the witnesses, I
have resolved that in favor of the testimony of Arthur and
John Ledford and Connolly. Both the Ledfords testified in
a frank and candid manner. Neither of the brothers
exhibited any animosity or hostility toward the Union
because of the controversy. They appeared to be
disinterested witnesses and I credit the testimony of the
partners in its entirety. In his testimony, Connolly made a
mistake as to the identity of the union official with whom
he talked at the Santa Ana office of the Union. In his brief,
counsel for the Union places heavy stress upon this error
in the testimony of Connolly, but I think it is quite
understandable under the circumstances. Dohnke in Los
Angeles had talked to Vawter by phone and referred
Connolly to Vawter at Santa Ana for reinstatement. When
Connolly reached the Santa Ana office, he was shown into
the office of a union official and he took it for granted that
the official was Vawter. It was not; it was Fitzgerald, but
Connolly said that Fitzgerald said to him those things
which Connolly originally attributed to Vawter. Since this
was the only occasion on which Connolly saw either of
these two men, his mistake in name is understandable and
I find excusable. On all other points, Connolly's testimony
stands unweakened in this record. In my judgment,
Connolly was an honest, truthful witness. I credit his
entire testimony.
According to the credited testimony of both Arthur
Ledford and Connolly, the Employer notified Greenstreet,
the Union's agent at the time that Connolly was originally
hired; yet the Union raised no objection to Connolly's
employment until August or September 1964 when
Skidmore made his first inquiry of Connolly and Arthur
Ledford concerning Connolly's employment. When
Skidmore accosted Connolly and asked if he was a
member of the Union, Connolly stated that he was a
member of the Machinists. Skidmore's reply to that was,
"This is no machine shop." That certainly implies that
Connolly lacked membership in the proper union to be
employed on the Ledford Bros. job. Thereafter in his
discussion with Arthur Ledford, Skidmore either said or
implied that the reason for Connolly's removal from the
job was his lack of membership in the Union. When the
matter of Connolly's employment reached a crisis,
according to Arthur Ledford, Skidmore told Ledford that if
Connolly went to Los Angeles, Connolly might be able to
obtain reinstatement. Up to that point Skidmore had never
mentioned either to Connolly or to Arthur Ledford that he
objected to Connolly because Connolly had not been
dispatched from the union hiring hall.
According to the undisputed testimony of Connolly
when he spoke to Dohnke at the union hall in Los Angeles,
Dohnke told him that he could be reinstated without any
trouble because he already had a job within the
jurisdiction of the Union. Even up to this point nothing had
been said by any union official about clearance or dispatch
from the union hall. If Skidmore's real objection to
Connolly's employment was his lack of clearance or
dispatch from the hiring hall, Skidmore's conduct in
recommending to Ledford that Connolly apply for
reinstatement at Los Angeles and Dohnke's referral of
Connolly back to Santa Ana were to no purpose, because
Connolly's reinstatement would not remove Skidmore's
objection to Connolly's employment.
In his testimony Fitzgerald stated that he was familiar in
a general way with the situation concerning Connolly's
being employed at Ledford Bros. but it is perfectly clear
from Fitzgerald's testimony, that he did not discover that
Connolly had not been dispatched from the hiring hall,
until he checked Connolly's file at the union office, after
being called on the telephone by Dohnke. As to the conflict
in testimony between Fitzgerald and Connolly as to what
occurred at the Santa Ana interview, I credit Connolly's
version. Fitzgerald said that he saw no reason why he
should give any consideration to Connolly. This statement
evinces a hostility to Connolly which was also noticeable in
Skidmore's testimony. In the course of his testimony,
INTL. UNION OF OPERATING ENGINEERS, LOCAL 12
Skidmore said at least twice that Connolly had expressed
disapproval with the way the Union had treated him in the
past. The tenor of Skidmore's testimony was that such
criticism could not be tolerated and warranted some sort
of counteraction. Fitzgerald in the Santa Ana conversation
displayed the same undercurrent of hostility. He knew that
Connolly had been employed for several years without
membership in the Union and his statement that he saw no
reason for showing consideration to Connolly had the same
tenor, that Connolly's conduct had been improper and
therefore the Union had the right to deny consideration to
his reinstatement.
In addition, Skidmore did not appear to be a reliable
witness. He was quite uncertain about the date when he
first made known his objection to Connolly's employment
to Ledford Bros., and, when cross-examined as to why he
checked only the dispatch hall reason on the Union's form
154 as to why he had requested the discharge of Connolly,
he appeared to be ill at ease and evasive.
Upon a consideration of all the evidence and for the
reasons stated above, I find that Skidmore requested the
discharge of Connolly, not because he was not properly
dispatched from the hiring hall, but because Connolly
lacked membership in the Union. Skidmore's contention
that he requested Connolly's discharge because he was
not properly dispatched, I find to be a pretext to cloak the
real reason for the Union's action.°
From the consideration of all the evidence, it is clear
and I also find that the Union did not fulfill its fiduciary
duty to deal fairly with Connolly. At the time Connolly was
originally hired, the Union was given notice by Ledford
Bros. that he was being employed, but the Union took no
action against Connolly for his nonmembership for
approximately 3 years. Finally, Skidmore, after trying for
over a year to have Connolly discharged, told Arthur
Ledford that Connolly might be reinstated by going to the
Los Angeles office of the Union. In all of this long time,
Skidmore did not inform Connolly of how much the
reinstatement fees were, or where they were to be paid.
When he was not informed of these facts and was not
bothered in his employment, Connolly had the right to
assume that the Union did not desire him as a member.
Therefore, I find that the Union did not fulfill its fiduciary
duty to notify Connolly of his obligation and rejected his
application for reinstatement for reasons other than his
failure to tender periodic dues and initiation fees usually
required for membership.'
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations
described in section I, above, have a close, intimate, and
substantial relationship 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.
V. THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices, as set forth above, it shall be
^ District Council of Painters No 52 (Maynard C Belvoir), 150
NLRB 1094, enfd 363 F 2d204 )C A 9)
' Philadelphia Sheraton Corporation, 136 NLRB 888, 896,
enfd sub nom N L R.B. v Hotel Employees, Local 568, 320 F 2d
365
recommended that the Respondent be ordered to cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Among other things, it shall be recommended that the
order require the Respondent to notify Ledford Bros., in
writing, that it has no objection to the employment of
Thomas Connolly without regard to his membership or
nonmembership in the Respondent labor organization. It is
also recommended that the order shall also require that
the Respondent make Connolly whole for any loss of pay
suffered by reason of the Respondent's discrimination
practiced against him. The Respondent's liability therefor
shall terminate 5 days after notifying Ledford Bros., as set
forth above, that it has no objection to Connolly's
employment. Loss of pay, as aforesaid, shall be computed
in accordance with the formula in F. W. Woolworth
Company, 90 NLRB 289, and shall bear interest at the rate
of 6 percent per annum, as set forth in Isis Plumbing &
HeatingCo., 138 NLRB 716.
Upon the above findings of fact and upon the entire
record in the case, I make the following:
CONCLUSIONS OF LAW
1. International Union of Operating Engineers, Local
Union No. 12, is a labor organization within the meaning of
Section 2 (5) of the Act.
2. Ledford Bros. is an employer within the meaning of
Section 2(2) of the Act and is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
3 Paul H . Skidmore is, and at all times material herein
has been , Respondent's agent within the meaning of
Section 8(b) of the Act.
4. By causing and attempting to cause Ledford Bros.,
an employer , to discriminate against Thomas Connolly in
violation of Section 8(a)(3) of the Act, the Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of 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 the entire record in the case it is
recommended that International Union of Operating
Engineers, Local Union No. 12, its officers, agents, and
representatives, shall:
1. Cease and desist from:
(a) Causing or attempting to cause Ledford Bros. to
discriminate against Thomas Connolly, in violation of
Section 8(a)(3) of the Act.
(b) In any like or related manner restraining or coercing
employees in the exercise of the 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 authorized in Section 8(a)(3) of the
Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
254 )CA 3), Associated Transport inc. 156 NLRB 335,
Local 98D, International Union of Operating Engineers,
AFL-CIO (Construction Fields Survey, Inc), 156 NLRB 545
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Notify Ledford Bros. and Thomas Connolly, in
writing, that the. Respondent has no objection to the
employment of Thomas Connolly without regard to his
membership or nonmembership in the Respondent Union.
Also notify Thomas Connolly, if he is presently serving in
the Armed Forces of the United States, that it has no
objection to his full reinstatement, without regard to his
membership or nonmembership in the Respondent Union,
upon application in accordance with the Selective Service
Act and the Universal Military Training and Service Act,
as amended, after discharge from the Armed Forces
(b) Make Thomas Connolly whole for any loss of pay
suffered by reason of the discrimination practiced against
him in the manner set forth in the section of this Decision
entitled "The Remedy "
(c) Post at its offices, meeting halls, and hiring halls,
copies of the attached notice marked "Appendix."" Copies
of said notice, to be furnished by the Regional Director for
Region 21, after being duly signed by an authorized
representative of the Respondent, shall be posted by the
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
members and other employees using the Respondent's
hiring hall are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(d) Additional copies of the attached notice marked
"Appendix" shall be signed by an authorized
representative of the Respondent, and forthwith returned
to the aforesaid Regional Director for posting by Ledford
Bros., the said Employer being willing, at its business
offices and construction projects, where notices to the
employees are customarily posted.
(e) Notify the Regional Director for Region 21, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.`'
IT IS FURTHER RECOMMENDED that, unless the
Respondent shall, within 20 days from the receipt of this
Decision, notify said Regional Director in writing that it
will comply with the foregoing recommendations, the
National Labor Relations Board will issue an order
requiring the Company to take the action aforesaid.
" In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall he substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
9 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 ALL MEMBERS OF INTERNATIONAL UNION OF
OPERATING ENGINEERS, LOCAL UNION No 12, TO ALL
EMPLOYEES OF LEDFORD BROS., AND ALL APPLICANTS
FOR EMPLOYMENT
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT cause or attempt to cause Ledford
Bros. to discriminate against Thomas Connolly, in
violation of Section 8(a)(3) of the Act.
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 Act, except to the
extent that such rights may be affected by an
agreement requiring membership in a labor
organization, as authorized in Section 8(a)(3) of the
Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
WE WILL notify Ledford Bros. and Thomas
Connolly, in writing, that we have no objection to the
employment of Thomas Connolly without regard to
his membership or nonmembership in the
Respondent Union
WE WILL make Thomas Connolly whole for any loss
of pay suffered by reason of the discrimination
practiced against him
INTERNATIONAL UNION OF
OPERATING ENGINEERS,
LOCAL UNION No. 12
(Labor Organization)
Dated By
(Representative ) (Title)
Note: We will notify Thomas Connolly, if presently
serving in the Armed Forces of the United States, that we
have no objection to his full reinstatement, without regard
to his membership or nonmembership in the Respondent
Union, upon application in accordance with the Selective
Service Act and Universal Military Training and Service
Act, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If members have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board's Regional Office, Eastern
Columbia Building, 849 South Broadway, Los Angeles,
California, Telephone 688-5229.