Laborers and Hod Carriers Union, Local 652

National Labor Relations Board - Board Decisions

Jan 5, 1962

135 N.L.R.B. 43 (N.L.R.B. 1962)

LABORERS AND HOD CARRIERS UNION, LOCAL 652 43
housemen and Helpers of America , or any other labor organization , except to the
extent . that this right may be affected by an agreement in conformity with Section
8(a)(3) of the Act.
TECHNICAL TAPE CORPORATION, AND
W. RALSTON AND CO ., INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Laborers and Hod Carriers Union , Local 652, AFL-CIO and
Jimmie I. Davis and Hood -River-Neill, a Joint Venture and
International Hod Carriers ' Building and Common Laborers'
Union of America , Parties to the Contract. Case No. 21-CB-
1544. January 5, 1962
DECISION AND ORDER
On February 14, 1961, Trial Examiner Eugene K. Kennedy issued
his Intermediate Report 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 Intermediate
Report attached hereto. Thereafter, the Respondent filed exceptions
to the Intermediate Report, together with a supporting brief, while
the General Counsel filed a brief in support of his position.
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 [Chairman McCulloch and Mem-
bers Leedom 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 I has considered the Inter-
mediate Report, the exceptions z and briefs, and the entire record in
this case, and hereby concludes, for reasons hereinafter stated, that
the complaint should be dismissed in its entirety, contrary to the
recommendations of the Trial Examiner.
3 The Respondent 's request for oral argument is denied as the record, including the
exceptions and briefs , adequately presents the issues and positions of the parties
0 We find no merit in the Respondent 's exception to the Trial Examiner's finding that the
Employer Is engaged in commerce within the meaning of the Act. The record shows that
the Employer , a joint venture, was organized to install a pipeline in California for the
Southern California Gas Company and' Southern Counties Gas Company, for which it
received in excess of $1 million The record further shows that each of these gas com-
panies purchase goods and materials In excess of $50 ,000 annually from out-of-State
sources , and that each has an annual gross business volume in excess of $250,000. Accord-
ingly, we find that the Employer is engaged in commerce, and that it will effectuate the
policies of the Act to assert jurisdiction herein Secnions Mailing Service, 122 NLRB 81.
135 NLRB No. 7.
44 DECISIONS OFWATIONAL LABOR RELATIONS BOARD
The Trial Examiner found that the. oral agreement between the
Respondent Union and the Employer establishing an exclusive hiring
arrangement violated Section 8(b) (1) (A) and (2) of the Act because
it did not provide the "safeguard" provisions required by the Board's
decision in its Mountain Pacific case.' He further found that the
Union, in enforcing the hiring arrangement found to be unlawful, re-
fused to clear-employee Davis and thus caused the Employer to dis-
criminate against Davis within the 'meaning of Section 8(a) (3) of
the Act, resulting in the loss of his job, and that the Union thereby
.violated Section 8(b) (2) and (1) (A) of the Act. There is no basis,
aside from the failure to meet the Mountain Pacific standards, for
finding the oral hiring agreement here in issue unlawful.
Subsequent to the issuance of the Intermediate Report, the Supreme
Court handed down its decision in Local 357, International Brother-
hood of Tearzsters, etc. v. N.L.B.B.,4 in which it held, in effect, that a
hiring agreement cannot be found unlawful solely because it fails to
include the Mountain Pacific safeguards. Accordingly, we find in
accord "with"the Court's decision, but contrary to the Trial Examiner,
tliat -the oral hiring agreement' was not unlawful.
As for the situation involving Davis, there is no evidence apart from
=the existence of the hiring arrangement delineating why the Union
'refused to clear Davis. However, the record does show that the Em-
ployer, directly hired Davis contrary to the terms of the oral hiring
arrange'me'nt, that the Union maintained a referral list containing the
names of -both members and nonmembers of the Union, and that the
Union did not change its position with respect to Davis when he
proffered his union initiation and other membership fees. These facts
give'some'basis for an inference that the Union's refusal to clear Davis
was related to his failure to go through the established hiring pro-
cedures tnd not to his union or nonunion status. There is no evidence
'that would support a contrary inference. In any event, the record will
not support a finding that the refusal to clear Davis'or to continue his
employment was related to his union status or resulted from a dis-
criminatory enforcement as to him of the oral hiring agreement.
Thus, we further find, in the absence of any evidence of discrimi-
natory motivation, that the application of the hiring arrangement to
Davis with the result that he lost his job did not violate the Act as
,alleged.
In view of the foregoing we shall dismiss the complaint.
[The Board dismissed the complaint.]
' Mountain Pacific Associated General Contractors , Inc, et at., 119 NLRB 883.
365 US 667.
LABORERS AND HOD CARRIERS UIVION, LOCAL 652 45
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This matter was tried in Los Angeles, California, On August 29,'1960, before
Eugene K. Kennedy, the duly designated Trial Examiner. The complaint alleges
that Laborers and Hod Carriers Union, Local 652, AFL-CIO, herein called Re-
spondent, violated Section 8(b) (1) (A) and (2) of the National Labor Relations Act,
as amended, by causing discrimination in connection with the employment of one
Jimmie Davis and by executing and enforcing an unlawful hiring contract.
The answer of Respondent denies the commission of unfair labor practices and
sets forth seven affirmative defenses, not specifically treated as, the findings and con-
clusions made herein dispose of the issues raised by those affirmative defenses,
which have record facts pertaining to such defenses.
FINDINGS OF FACT
1. THE BUSINESS INVOLVED
Hood-River-Neill is a joint venture, consisting of Hood Construction Company
of Whittier, California, River Construction Corporation of Fort Worth, Texas, and
J. P. Neill Co. of Dallas, Texas, here collectively designated as Employer. It was
organized for the sole purpose of installing a pipeline between Placentia and Cuca-
monga, California, for the Southern California Gas Company and Southern' Counties
Gas Company. According to the stipulations of the parties the whole project will
be completed within 12 months from August 1960 and the'joint venture will then
terminate. However, the portion of the project in which the Respondent Union has
territorial jurisdiction was completed in June 1960. Respondent will receive--in
excess of $1,000,000 for the entire project. The two gas companies involved each
purchase goods and materials valued in excess of $50,000 annually, which are
transported directly from out of the State of California. In connection with the
project in question, the gas companies purchased pipe valued in excess of $100,000,
which was imported to the project directly from out of State for installation by the
Employer. All three members of the joint venture are member of the Pipeline
Contractors Association and are parties to an agreement between the Laborers'
International Union and the Pipeline Contractors Association. This agreement is
characterized in the record as the National Pipeline Agreement.
It is found that the Employer is engaged in commerce and its activities affect
commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Laborers and Hod Carriers Union , Local 652, AFL-CIO, is a labor organization
within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The alleged unlawful agreement
The General Counsel 's theory of the unlawful agreement is based on an oral
interchange made at the prejob conference held by representatives of the Employer
and of Respondent in March 1960 . Included among those present at that confer-
ence on behalf of the Employer was a Cecil Jernigan , who was the superintendent
for the northern half of the work to be done by the joint venture , and a Ray
Mendoza, chief business representative of Respondent . This prejob conference was
held pursuant to a provision of the National Pipeline Agreement.
II. (D) . At the pre-job conference , Employer should inform Union
of the number of men whom he plans to bring with him into the area and
have a mutual understanding with Union to enable Union to supply Employer
with additional men who might be needed during the progress of the job.'
The entire sections of the National Pipeline Agieement, relative to union recognition
and security and job notification are as follows
II. UNION RECOGNITION AND UNION SECURITY
(A) The Employer hereby recognizes the Union as the sole collective bargaining
agent for the purpose of collective bargaining In respect to wages, hours of employment
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At this prejob conference Jernigan credibly testified that there was an agreement
reached whereby both Respondent Local and a sister local agreed to let the Employer
bring in a minimum of five key personnel for each spread, who would be given union
clearance, and the Employer agreed to call the unions, including Respondent, for
the personnel in addition to the five that the Employer could bring on to the jobsite
directly. Raymond Mendoza, the business representative for Respondent, testified
as follows in connection with the prejob conference:
My recollection is that the pre-job conference was called for the purpose
of getting the San Bernardino local and our local together, and, as a convenience
to the company, that they would have a steady pool of men that they could
call the hall or use our facilities and that they would clear five or six men,
whether union or non-union, they were going to bring them in and we would
know who they would be and from thereafter when they needed our facilities
they would call the hall, Mr. White would be in charge of the hiring and use
our facilities.
It is noted that Jernigan's version has the Employer bringing in a minimum of
five men for each spread and Mendoza's testimony indicates the agreement con-
templated the Employer could have five or six men cleared. Jernigan's recollection
seems more definite and-on the basis of his testimony, taken together with that of
Mendoza's, it is found that an oral agreement was made at the prejob conference,
which provided that the Employer would call the Respondent exclusively for any
personnel in excess of five. This agreement applied to employees who would
ordinarily be within the work jurisdiction of Respondent Union.
Based on the above testimony, it is found that this oral agreement created an ex-
clusive hiring arrangement, which fails to provide for: (1) a nondiscriminatory
and other conditions of employment for all of the employees covered by this Agreement
(B) All employees covered by this Agreement, as a condition of employment, shall,
commencing on the thirtieth (30th) day following the beginning of their respective
employment or the effective date of this Agreement, whichever is the later, acquire
and, for the duration of this Agreement, maintain, membership in the Union This
provision shall not apply in any state where such a requirement for continued employ-
ment is prohibited by law.
(C) That Employer shall be the sole judge as to the competency of any employee
and shall have the right to discharge men.
(D) That Employer may employ men direct and once a man is employed, he may
continue to work for Employei for as long as Employer elects to keep him. At the
pre-job conference, Employer should inform Union of the number of men whom he
plans to bring with him into the area and have a mutual understanding with Union to
enable Union to supply Employer with additional men who might be needed during
the progress of the job.
(E) That Employer shall have the right to keep men who are, in his opinion, key
or specialized in Employei's work in his employment on all work throughout the
territory covered by this Agreement. -
(F) There shall be no non-working steward or stewards. The Union may select
one of Employer's employees to act as steward for the Union. Such man shall perform
his work for the Employer the same as any other worker, and shall not be entitled
to any extra pay merely because he is acting as steward. Employer agrees to keep the
steward advised as to Employer's needs for men, and the steward shall cooperate in
procuring needed competent men
(G) The Union shall not interfere with Employer's employees during the working
hours except that the business representative of the Local Union shall have the right
to visit jobs provided he does not interfere with the progress of the work
III JOB NOTIFICATION AND ENFORCEMENT
(A) Employer agrees to notify Union of jobs obtained by Employer, describing
the location, size and length of the proposed pipe line and the proposed starting date
(B) Employer and Union shall hold a pre-job conference so that the start and con-
tinuation of the work may progress without interruption, and Union's representatives
at such conference shall be authorized by Union to represent Union for the entire area
covered by the job.
(C) The Union agrees to send a copy of this contract to each and every one of its
Locals having jurisdiction over any area in which Employer becomes obligated to con-
struct a pipeline, and agrees that the terms of this contract shall be recognized by
such Local, so that industrial peace will not be disturbed and so the Employer may
perform Employer's work efficiently and continuously
LABORERS AND HOD CARRIERS UNION, LOCAL 652 47
basis for referral; (2) the Employer's right to reject applicants for employment; and
(3) notice to employees as to the manner in which the exclusive hiring arrangements
shall function. Because the agreement lacks safeguards according to Board prece-
dent it is unlawful. Mountain Pacific Chapter of the Associated General Contrac-
tors, Inc.; the Associated General Contiactors of America, Seattle Chapter, Inc.; and
Associated General Contractors of America, Tacoma Chapter, 119 NLRB 883.
The experience of Jimmie Davis set forth below sets to rest any doubt that this
agreement was discriminatory in practice. It also makes clear that in the case of
Respondent the oral agreement reached at the prejob conference superseded certain
written provisions of the National Pipeline Agreement set forth in full (see foot-
note 1, supra), providing for the right of the Employer to hire directly.
B. The alleged discrimination against Jimmie Davis
On or about April 30, 1960, a Saturday, Jimmie Davis asked Foreman Choate
for a job with the Employer, relating that he had several years of pipeline experience.
He was informed that he could be employed if he got cleared by Respondent. On
the following Monday he returned again to the Employer seeking employment and
James Turner, material man for the Employer, was instructed by Superintendent
White to call the Union to get a clearance for Davis.2 At this time Turner talked
to a Rodger Fisher, one of the business representatives for Respondent, and was
informed that the Employer was "over 10 percent" and that Davis could not obtain
clearance at that time.3 Fisher also informed Turner that if four or five men on the
waiting list were hired out of the hall, Fisher might consider clearing Davis. At
Turner's suggestion Davis returned the following Friday and Turner at the direction
of Superintendent White again called Fisher about getting Davis a clearance to
work. Fisher informedd Turner that it would be all right if Davis worked on the
weekend and to have Davis report to him on Monday to be cleared. Fisher also
coupled this acquiescence in clearing Davis with the remark that it would be all
right for Davis to go to work on Friday if the job steward did not object too much.
It is noted that the Employer obtained three or four men between Monday and
Friday through Respondent's hiring hall, and that when Davis started to work on
Friday, Respondent's job steward asked Davis for his clearance. Davis worked
Friday and Saturday and when he went to work Monday, Job Steward Munoz told
Davis that he would have to get 'a clearance and for him to go to the union hall
to do so. Davis then informed Foreman Choate who told him to go to the union
hall, saying, "Well, go ahead and go, we'll just get all of this mess out of the way
once and for all."
At the union hall Fisher told Davis that he was going to have to call Raymond
Mendoza about a clearance for Davis and that he should finish working on Monday
and to come in and see him on Tuesday morning. Davis did work the rest of
Monday and went back to see Fisher on Tuesday, when he was told by Fisher that
he could not obtain clearance. Although requested to do so, Fisher would not give
Davis a reason for refusing the clearance. Davis returned to the Employer and
informed Turner, Superintendent White, and Foreman Choate about his failure to
obtain clearance and did not resume working. In view of his attempts to obtain
work and the expressed views of the Employer with respect to the necessity for
clearance, a specific request by Davis to the Employer to resume work in order to
establish discrimination was not necessary , as under the circumstances it would
have been a futile act which as a matter of law Davis was not required to dot
After Davis was refused clearance by Fisher on Tuesday morning, he attempted to
see Mendozabut without success.
The main conflict in this record stems from the testimony of Turner and Davis
as opposed to that of Business Representative Fisher. Fisher's testimony contains
a statement wherein he says that he had quite a few laborers working who had no
clearance but he was unable to name anyone except Turner who was not doing
2 The Respondent made an issue at the hearing with respect to Turner 's power to act for
Respondent in calling the Union for personnel. The record reflects that at the prejob
conference Superintendent White was the individual designated to call the Union as part
of the oral hiring arrangement. However, Jernigan, a superintendent as was White, testi-
fied that it was common practice to delegate this function to someone in the office. Accord,-
ingly, it is found that it is immaterial under the issues of this complaint, whether White
called the Respondent directly or through his appointed agent, Turner
3 This reference to "10 percent" reflects an apparent union computation as to how many
men of the total could be brought in directly by the Employer and how many would have
to be obtained through the union hall
Daniel Iiainni Drayage Company. Inc, 84 NLRB 458, 460
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work within the jurisdiction of the Laborers ' Union . Fisher also testified that he
told Davis that Davis could work anytime without a clearance . This testimony
is rejected as implausible. Fisher remembers being called by Turner who told him
that he had a boy and that Turner asked Fisher to come out on the job and that
Fisher told him he did not work on the weekends . Fisher said that he did not get
out to the job until May 10 and that White , the superintendent , wanted to see him
on the job. Fisher's denial that Turner asked him for a clearance for Davis or other
laborers is not credited . In the context of a number of evasive answers this denial
by Fisher seems incredible when also measured against the lack of any reason ap-
pearing in te record why Turner should give testimony against Respondent . Davis'
affidavit of May 11, 1960, given do the Board omits a statement which he subse-
quently included in a July affidavit to the effect that Fisher told him that if he saw
him back on the job that he would shut the whole job down on Tuesday, May 10.
The failure of Davis to state this in his initial affidavit in support of the unfair labor
practices charge appears curious. However, since Turner 's fully credited testimony
supports that of Davis on the material issues relative to the failure of Davis to ob-
tain clearance, it is found that the omission of this statement in the May affidavit
does not impair the credibility of the testimony given by Davis on the material
issues litigated . Because of the evasive impression obtained from Fisher's testimony,
it is credited only to the extent it is consistent with the above -related findings.
In summary , based on the foregoing , it is found Respondent caused the Employer
to discriminate with respect to the employment of Jimmie Davis by withholding
clearance, thereby causing his loss of employment beginning on May 10, 1960, and
that this stemmed from the enforcement of the hiring arrangement found above to
be unlawful.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent Union described in section III, above , occurring
in connection with the operations of the Employer set forth in section I, 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 com-
merce and the free flow thereof.
V. THE REMEDY
Having found that Respondent engaged in certain unfair labor practices within the
meaning of Section 8 (b)(2) and (1)(A) of the At, it will be recommended that
it be ordered to cease and desist therefrom and to take certain action designed to
effectuate the policies of the Act. Specifically, it will . be recommended that the
Union be ordered to cease and desist from giving effect to the illegal exclusive hiring
'arrangement set forth above, and from causing or attempting to cause the Employer
to discriminate with respect to employment status of Davis, and to make Davis
-whole for loss of wages.
The complaint alleges without contradiction that.the whole project was scheduled
to be completed within 12 months from mid-1960. The credited and uncontra-
dicted testimony of Superintendent Jernigan establishes that the work of the Em-
ployer as far as Respondent Union is concerned was completed as of June 1960.
.Because the nature of the violation here involved is in serious contravention of the
rights guaranteed employees in Section 7 of the Act and b ecause it reflects a potential
of widespread' unlawful deprivation of employment , it will be recommended that
Repondent be ordered not to enter into any unlawful agreement with any employer
or cause any discrimination with respect to any employee, including Davis, the
Charging Party.
The General Counsel has asked for a reimbursement type (Brown-Olds) remedy.
Although there is no direct evidence that any employee paid any moneys to Re-
spondent during the pendency of the unlawful hiring arrangement, the Board has
expressed the view that such arrangement is inherently coercive in its effect in causing
-payment of moneys to a union,5 and it will be recommended that any employees
referred by Respondent for work with the employer be reimbursed for any moneys
5 Local 401 , international B)otherhood of Boilermakers , Iron Ship Builders , Blacksmiths,
Forgers and Helpers, AFL-CIO, at at ( M A. Roberts, et at.. d / b/a M. A. Roberts & Com-
'pany), 126 NLRB 832; Local Union No 450, International Union of Operating Engineers,
AFL-CIO (Procon ), 129 NLRB 937 ; Local 792, International Association of Bridge , Struc-
tural and Ornamental Iron Workers, AFL-CIO ( Gridwall Company and Glide Windows,
Inc.), 128 NLRB 1259; United Association of Journeymen & Apprentices of Plumbing &
Pipefitting Industry of the United States and Canada , Local 231, AFL-CIO (J. S. Brown-
E F. Olds Plumbing & Heating Corporation ), 115 NLRB 594
INCA MFG. DIV., PHELPS DODGE COPPER PRODUCTS CORP. 49
paid to Respondent for the period beginning 6 months prior to the filing of charges
in this matter . With respect to the employees hired directly by the Employer I find
they were not directly affected by the terms of the agreement giving Respondent an
exclusive hiring arrangement and that it would be inappropriate to recommend a
reimbursement of moneys to such employees . The Board has determined that its
reimbursement remedy need not be applied in every situation where employees have
been unlawfully encouraged to join a union . Here, although some psychological
effect may have resulted from the five exempt employees obtaining union clearance,
I find these employees were not obligated to pay any moneys to Respondent as a
condition of working for the Employer , and any clearance was dictated by the Em-
ployer and not Respondent , and Respondent had no control over their employment .0
CONCLUSIONS OF LAW
1. The Employer is engaged in commerce within the meaning of the Act.
2. Laborers and Hod Carriers Union, Local 652, AFL-CIO, is a labor organization
within the meaning of the Act.
3. By causing the Employer to discriminate against Jimmie Davis in violation of
Section 8 (a)(3), the Respondent has engaged in unfair labor practices within the
meaning of Section 8 (b) (2) and (1) (A) of the Act.
4. The hiring arrangement entered into at the prejob conference between the
Employer and Respondent was a violation of Section 8(b)(1)(A) and (2) of the
Act.
5. The aforesaid unfair labor practices affect commerce within the meaning of the
Act.
[Recommendations omitted from publication.]
° Chun King Sales Inc ., 126 NLRB 851. Here there was an illegal union-security agree-
ment but the Blown - Olds reimbursement was not applied because the illegal contract did
not condition intial employment on union membership or in any way grant the Union
control over the hiring of employees.
In the case at bar the same considerations would seem to be present with respect to the
five employees selected by the Employer.
Inca Manufacturing Division , Phelps Dodge Copper Products
Corporation and International Union of Electrical , Radio &
Machine Workers , AFL-CIO, Local 963. Case No. 13-CA-4055.
January 5, 1962
DECISION AND ORDER
On October 30, 1961, Trial Examiner C. W. Whittemore issued his
Intermediate Report 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 in
its entirety, as set forth in the Intermediate Report attached hereto.
Thereafter, the General Counsel filed exceptions to the Intermediate
Report and a supporting brief. The Respondent also filed limited
exceptions and a brief supporting the Trial Examiner's recommended
dismissal of the complaint.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in the
135 NLRB No. 13.
634449-62-vol. 135--5