Laborers Local No. 341

National Labor Relations Board - Board Decisions

Apr 14, 1976

223 N.L.R.B. 917 (N.L.R.B. 1976)

LABORERS LOCAL NO. 341 917
Laborers and Hod Carriers Local No. 341, affiliated
with Laborers '-International Union of North Ameri-
ca, AFL-CIO (Bannister-Joyce-Leonard) and Pat-
rick J . Hurrell . Case 19-CB-2427
April 14, 1976
DECISION AND ORDER
By CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On November 12, 1975, Administrative Law Judge
Richard J. Boyce issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a brief in support of the Administrative Law Judge's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order)
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Laborers and Hod Car-
riers Local No . 341, affiliated with Laborers ' Interna-
tional Union of North America , AFL-CIO, its offi-
cers , agents , and representatives , shall take the action
set forth in the said recommended Order.
1 Respondent 's request for oral argument is hereby denied as the record
and the briefs adequately set forth the issues and the positions of the parties.
Following the hearing-specifically, on August 25,
1975-an amended charge was filed, after which, on Sep-
tember 2, counsel for the General Counsel moved that the
complaint be amended to include an alternative allegation
that Respondent had violated Section 8(b)(1)(B) by the
conduct previously alleged to have violated Section
8(b)(1)(A) and (2). That motion was granted by my order
of September 11, which order was coupled with one that
the parties "show cause to me in writing, not later than
September 29, 1975, why the hearing should not be re-
opened for the presentation of evidence going to the issues
raised by the complaint as now constituted." Both the
General Counsel and Respondent submitted written oppo-
sitions to reopening. For that reason, and because it is con-
cluded that the record is sufficiently complete to permit
proper resolution of the issues raised by the complaint as
amended, it hereby is ordered that the hearing not be re-
opened.'
1. ISSUES
The issues are whether Respondent caused Hurrell's dis-
charge on April 6, 1975, and, if so, whether it thereby vio-
lated Section 8(b)(1)(A) and (2) of the Act, or, in the alter-
native , Section 8 (b)(1)(B). An underlying issue is whether
Hurrell was a statutory supervisor when discharged.
II. JURISDICTION
Hurrell 's employer when discharged was Bannister-
Joyce-Leonard (herein called B-J-L), a joint venture en-
gaged in Valdez; Alaska, under subcontract to Alyeska
Pipeline Service Company in the preparation of pipe for
the Alaska oil pipeline. B-J-L, in the course of this activity,
annually purchases and causes to be shipped to Alaska
directly from outside that State goods and materials valued
in excess of $50,000.
B-J-L is an employer engaged in and affecting commerce
within Section 2(2), (6), and (7) of the Act.
III. LABOR ORGANIZATION
Respondent is a labor organization within the meaning
of Section 2(5) of the Act. Its principal office is in Anchor-
age, and it maintains a field office in Valdez.
IV. THE ALLEGED UNFAIR LABOR PRACTICE
DECISION
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge: This case
was heard in Anchorage, Alaska, on July 29, 1975, upon a
charge filed April 14, 1975, by Patrick J. Hurrell, an indi-
vidual, and a complaint which issued May 30. The com-
plaint alleged violations by Laborers and Hod Carriers Lo-
cal No. 341, affiliated with Laborers' International Union
of North America, AFL-CIO (herein called Respondent),
of Section 8(b)(l)(A) and (2) of the National Labor Rela-
tions Act.
A. Facts
B-J-L began performing at Valdez in August 1974.
Among its employees were laborers referred from
Respondent's exclusive hiring hall. At the time of Hurrell's
discharge-April 6, 1975-about 45 laborers were on the
B-J-L payroll. One of them was William Divins,
Respondent's duly appointed job steward on the project.
Divins testified that his main function as steward is as a
"go-between" in voicing employee grievances to manage-
1 Documents, generated by the posthearing activity above described, have
hereby been received in evidence.
223 NLRB No. 143
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meat. He added that "practically all" grievances in which
he has been involved at Valdez have been resolved without
need to bring in others in Respondent's hierarchy.
The controlling labor contract states in relevant part, re-
garding stewards:
The Union shall have the right to designate working
journeymen as stewards . . . . In addition to his work
as an employee, the steward shall have the right to
receive complaints or grievances and to discuss and
assist in the adjustment of the same with the
employee's appropriate supervisor. The steward shall,
in addition to his work as journeyman, be permitted to
perform during working hours such of his normal
Union duties as cannot be performed at other times.2
Those rare times when Divins has been unable himself to
effect grievance resolution, he has deferred to Jim Robison,
an International representative who is in charge of
Respondent's Valdez office.
Hurrell became employed by B-J-L as a labor foreman
at Valdez on March 25, 1975. He spent March 25 at a job
orientation session in Anchorage, and March 26 en route
to Valdez. March 27 was his first day at the site , but he did
little work because he as yet had not obtained referral from
Respondent's hiring hall. Referral finally was granted
April 2, incidental to a visit to the site by Robison. Robi-
son testified that, under the labor contract, B-J-L is entitled
to have referred as labor foremen whomever it wishes.3
On April 3 or 4, Divins asked Robison why Hurrell had
been referred as labor foreman, explaining that the "hands
was hot" that one of them had not been promoted to the
position instead of bringing in an outsider. The position
carried an hourly wage premium of 75 cents, and the em-
ployees then were working an 84-hour week. Robison re-
plied, alluding to the aforementioned contract provision,
that Hurrell "went out under the terms of the agreement
and that's it."
Nevertheless, on Saturday, April 5, Divins announced
on the crew bus that there would be a meeting of the labor-
ers that night, and that the labor foremen were not invited.
He testified that he did not take this action on his own
initiative, but rather in response to employee sentiment
that there be a meeting over the issue of Hurrell's referral
as labor foreman . The meeting ensued as announced. Di-
vins reported to the employees his conversation of April 3
or 4 with Robison concerning Hurrell, and the situation
was discussed back and forth. At length, the employees
voted to begin a "safety meeting"-i.e., work stoppage-as
of Monday, April 7, to continue until B-J-L rectified the
Hurrell matter. The April 7 starting date was to be contin-
gent upon the availability of an authorized representative
of Respondent to conduct the "safety meeting" ; otherwise,
it was to begin at such time as that could be arranged.
Accordingly, after the meeting, Divins tried unsuccessfully
to reach Robison and other of Respondent's officials.
On April 6, at or about 7 a.m., Divins sought out B-J-L's
job superintendent, Bill Wilhite. He told Wilhite of the pre-
2 Art. V. sec. 2.
3 Art. VI, sec. 9, states : "The selection of craft foremen and general fore-
men shall be the exclusive responsibility of the Contractor."
vious night's vote, neglecting to mention the contingency
concerning the starting date. Wilhite asked what the prob-
lem was. Divins replied that it had to do with Hurrell. Wil-
hite asked if the "meeting" would go on if Hurrell were
fired. Divins said that it would not. Sometime during the
conversation, according to Wilhite, Divins stated that he
had nothing to do with the employees' decision besides
"merely transferring" it to Wilhite. Wilhite presently di-
rected B-J-L's yard foreman, Bob Morris, to discharge
Hurrell. Morris did just that, explaining to Hurrell that it
was because of a "union problem."
On May 23, Respondent's attorney, William Jermain,
sent this letter to Hurrell:
I am the attorney for the Laborers and Hod Car-
riers Union, Local No. 341. As you are aware you
were dispatched by the field representative of Local
341 to Bannister-Joice-Leonard [sic] Construction
Company on or about April 2, 1975. That dispatch is
still in force and effect. The Union does not now nor
has it ever had an objection to your employment pur-
suant to that dispatch.
Local No. 341 has never taken the position that you
have been improperly dispatched.
The Union categorically states that neither now or
in the past has it had any objection to your being
employed pursuant to the agreement with the employ-
er.
Upon learning of the letter , B-J-L restored Hurrell to his
former position , effective May 27 . Hurrell has continued in
that capacity without incident ever since.
Robison testified that he first learned of Hurrell's dis-
charge on April 7, when Yard Foreman Morris telephoned
him. In that conversation , Morris asked that Robison come
to the site regarding the matter . Robison said that he
would , but, claiming press of business , did not get there
until April 24. Robison , in his testimony, denied that Re-
spondent had anything to do with the discharge , expanding
that he would not have referred Hurrell in the first place
had there been any union objection. Robison continued
that, while Divins has authority to adjust grievances, he is
not empowered to call strikes ; and, moreover, that the la-
bor contract prohibits strikes . Divins denied that he was
acting in his role as steward at any time concerning Hur-
rell, asserting that he was only a conduit for the expression
of the employees' concerns.
Hurrell, when discharged , was one of three labor fore-
men for B-J-L. His crew consisted of three full -time and
two part-time laborers , a crane operator , and a crane oiler.
Their work consisted of unstacking 40-foot sections of
pipe , cleaning them, and moving them into place to be
welded to other sections . Hurrell testified that he worked
alongside the other laborers , doing the same tasks; but
that , being labor foreman , he additionally would "line the
work out in the morning and just make sure that ev-
erything is done ." In this latter connection, he testified that
he mainly was a "conduit" for instructions from Morris,
although he independently assigned employees from task
to task. Quoting from Hurrell 's testimony:
4 Art. VII.
LABORERS LOCAL NO . 341 919
[O]nce in a while a person will come up, you know, in
the crew and say I would rather be back in a certain
area, and if it sounds like they want to do a little
switching around, fine, if they'd rather work in some
other area and they do a better job at it I'd rather put
them there, they're usually happier, you know.
Hurrell had no authority to hire or fire and never partici-
pated in grievance resolution . He was told by Morris, when
hired, to contact Morris should any "problems" arise. Hur-
rell never had cause to reprimand any of the crew, but
assumes that he had that authority. Should he have been
met with insubordination, however, he would have turned
the matter over to Morris. He supposes that he had the
authority to recommend discipline for his crew-"I think I
could"-but never exercised it. The terms and conditions
of employment of the labor foremen, including the hourly
wage premium , were negotiated into the labor contract.
B. Analysis
Union Responsibility. The first question to be answered,
whether in the context of Section 8(b)(1)(A) and (2) or
8(b)(1)(B), is that of Respondent 's responsibility for
Hurrell's discharge. The General Counsel contends, obvi-
ously, that Divins was an agent of Respondent when on
April 6 he confronted Wilhite with the prospect of a work
stoppage-euphemistically termed a "safety meet-
ing"-over Hurrell , disclosing that it would not occur were
Hurrell discharged. Respondent contends, on the other
hand, that Divins was acting in his individual capacity.
While not all conduct of a job steward is attributable to
his union-the law does not "foreclose the steward, simply
by reason of his office, from all individual freedom of ac-
tion" 5 -it is concluded that Divins' conduct on this occa-
sion was binding on Respondent. When confronting Wil-
hite , he plainly was within the general area of his apparent
authority, as defined by the labor contract and by the prac-
tice as described by both Robison and himself, "to receive
complaints or grievances and to discuss and assist in the
adjustment of the same . . . ." It is evident , further, as
witness his effort to reach officials of Respondent to con-
duct the voted upon "safety meeting," that Divins did not
see himself as on a frolic of his own, but was trying to
operate within an acceptable union framework. Even if he
had not made this effort, however, it would make no differ-
ence as concerns his April 6 dealings with Wilhite . To bor-
row from Sunset Line and Twine Co., 79 NLRB 1487, 1509
(1948), it is of no consequence that Respondent had:
... not specifically authorized or indeed may have
specifically forbidden the act in question . It is enough
if the principal actually empowered the agent to repre-
sent him in the general area within which the agent
acted.
See, also, Associated Transport, Inc., 203 NLRB 844, 847
(1973); F. F. Mengel Construction Co., 196 NLRB 440, 442
(1972); Batterman Construction, Inc., 166 NLRB 532, 539-
540(1967).
Divins' agency is additionally inferable from Robison's
conspicuous failure, upon learning of the discharge from
Morris on April? and despite Morris' request that he come
to the site about it, to involve himself in the matter in any
way, let alone disavow Divins' conduct. See generally
N.L.R.B. v. Bulletin Co., 443 F.2d 863, 867 (C.A. 3, 1971);
Evening Star Newspaper Co., 193 NLRB 1089 (1971); Elmer
A. Fehrle, 190 NLRB 783, 785 (1971).
The Supervisory Question. The General Counsel, con-
tending that a violation of one Section or another has been
established whether Hurrell be employee or supervisor,
"takes no position either way" on the question of his sta-
tus.6 Respondent argues that he was a supervisor.
It is concluded, contrary to Respondent, that Hurrell
was an employee within Section 2(3) and not a supervisor
within Section 2(11) when discharged. He could not hire or
fire; played no part in grievance matters; spent the great
bulk of his day working alongside other crew members,
doing the same tasks; and his terms and conditions of em-
ployment were dictated by the labor contract. Those argua-
ble incidents of supervisory status-lining out the work,
seeing that it was done, assigning work, believing himself
possessive of authority to reprimand and recommend disci-
plinary action, and a higher wage-neither singly nor in
totality militate against Hurrell's being an employee.
As for the reprimands and discipline, he never invoked
such authority and there is no evidence that B-J-L ever
explicitly invested him with it, leaving to speculation its
existence and extent. Regarding the lining out and assign-
ing of work, and seeing that it was done, it is plain, given
the obviously routine nature of the tasks involved, that
these matters did not require any significant exercise of
independent judgment. Finally, the wage premium is of no
telling import, particularly since set by the contract. See
generally, Raymond International, Inc., 207 NLRB 354, 356
(1973); Lloyd's Ornamental and Steel Fabricators, Inc., 197
NLRB 367, 372 (1972); Risdon Manufacturing Co., 195
NLRB 579, 581 (1972); Electric Wiring, Inc., 193 NLRB
1059, 1062 (1971); Cork Insulating Company of Wisconsin,
189 NLRB 854 (1971); Walter J. Barnes Electrical Co., 188
NLRB 183, 187-188 (1971).
The 8(b)(1)(A) and (2) and 8(b)(1)(B) Questions. It having
been concluded that Respondent caused B-J-L to dis-
charge Hurrell by Divins' April 6 confrontation of Wilhite,
and that Hurrell then was an employee under the Act, the
question reduces to whether that conduct violated Section
8(b)(1)(A) and (2). Hurrell not being a supervisor, the al-
leged violation of Section 8(b)(1)(B) necessarily is without
merit. Florida Power & Light Co. v. Electrical Workers, 417
U.S. 790 (1974).
The Board stated in International Union of Operating En-
gineers, Local 18, 204 NLRB 681 (1973):
When a union prevents an employee from being
hired or causes an employee's discharge, it has demon-
strated its influence over the employee and its power
to affect his livelihood in so dramatic a way that we
will infer-or, if you please, adopt a presumption
that-the effect of its action is to encourage union
membership on the part of all employees who have
5 August Cederstrand Company, 152 NLRB 887 , 889 (1965 ). 6 G.C. brief, p. 2.
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
perceived that exercise of power. But the inference
may be overcome, or the presumption rebutted, not
only when the interference with employment was pur-
suant to a valid union-security clause , but also in in-
stances where the facts show that the union action was
necessary to the effective performance of its function
of representing its constituency.
It follows , absent an effective rebuttal of the presumption,
that such union conduct violates Section 8(bXl)(A) and
(2).
Respondent , by causing B-J-L to discharge Hurrell,
comes within the adverse presumption . It offered no rebut-
ting evidence, moreover , instead basing its defense on the
ill-fated assertions previously discussed. Nor is there excul-
pating evidence otherwise on the record . Far from being
supportive of legitimate considerations , Respondent's dis-
charge-causing conduct was both "against the contract"
and an abandonment of its duty to protect Hurrell's job
entitlement in the face of misguided employee pressures.
Similar in principle is International Longshoremen 's Asso-
ciation, Local No. 1581, AFL-CIO, (Elias Gonzalez Guerra),
196 NLRB 1186 (1972), in which the union caused an
employee's job transfer because he was not a U.S. citizen.
The Board stated at 196 NLRB 1187:
[W]e conclude that Guerra 's citizenship and the resi-
dence of his family did not provide the Union with
legitimate reasons for causing Guerra's transfer. Since
the terminating or transferring of an employee to sa-
tisfy a labor organization encourages membership in
that organization and "stands as a warning to employ-
ees that the favor and goodwill of responsible union
officials is to be nurtured and sustained ," we find that
Respondent has violated Section 8 (b)(l)(A) and (2) of
the Act.7
Even more to the point, the Board in Miranda Fuel Compa-
ny, 140 NLRB 181 (1962), found the union to have violated
Section 8(bXIXA) and (2) by causing the forfeiture of an
employee's contractually earned seniority rights in re-
sponse to pressures exerted by other employees . To much
the same effect is Rhodes & Jamieson, Ltd., 217 NLRB No.
95 (1975).
To summarize, by causing B-J-L to discharge Hurrell in
the circumstances of this case , Respondent caused B-J-L to
discriminate against him in violation of Section 8(a)(3),
thereby itself violating Section 8(bX2). Respondent by the
same conduct "restrained or coerced" Hurrell within Sec-
tion 8(bXIXA).
CONCLUSIONS OF LAW
1. By causing Bannister-Joyce-Leonard to discriminate
against Patrick J. Hurrell in violation of Section 8(a)(3) of
the Act, as found herein, Respondent violated Section
8(bX2) and 8(bXIXA) of the Act.
2. This unfair labor practice affects commerce within
the meaning of Section 2(6) and (7) of the Act.
i The quoted material within the quotation is from B. W. Horn Company,
137 NLRB 439, 442 (1962).
3. Respondent did not otherwise violate the Act as al-
leged.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER8
Respondent, Laborers and Hod Carriers Local No. 341,
affiliated with Laborers' International Union of North
America, AFL-CIO, its officers, agents, and representa-
tives, shall:
1. Cease and desist from:
(a) Causing Bannister-Joyce-Leonard to lay off Patrick
J. Hurrell 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 rights guaranteed by Section 7
of the Act.
2. Take this affirmative action:
(a) Make Patrick J. Hurrell whole for any loss of pay
and benefits suffered because of the discrimination against
him, backpay to be computed in accordance with F. W.
Woolworth Company, 90 NLRB 289 (1950), and Isis Plumb-
ing & Heating Co., 138 NLRB 716 (1962).
(b) Notify Bannister-Joyce-Leonard in writing that it
has no objection to the continued employment of Hurrell
as labor foreman.
(c) Preserve and, upon request, make available to the
Board or its agents , for examination and copying, all rec-
ords necessary for determination of the amount owing un-
der the terms of this Order.
(d) Post at its offices, meeting halls, and hiring halls
copies of the attached notice marked "Appendix." 9 Copies
of said notice, on forms provided by the Regional Director
of Region 19, after being signed by an authorized represen-
tative of Respondent, shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to members customarily
are posted. Reasonable steps shall be taken to ensure that
said notices are not altered, defaced, or covered by other
material.
(e) Sign and forthwith return sufficient copies of said
notice to the Regional Director for Region 19 for posting
by Bannister-Joyce-Leonard, that employer being willing,
at places where notices to employees customarily are post-
ed.
(f) Notify the Regional Director of Region 19, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
8 All outstanding motions inconsistent with this recommended Order
hereby are denied . In the event no exceptions are filed as provided by Sec.
102.46 of the Rules and Regulations of the National Labor Relations Board.
the findings, conclusions and recommended Order herein shall, as provided
in Sec . 102.48 of the Rules and Regulations , be adopted by the Board and
become its findings, conclusions , and Order, and all objections thereto shall
be deemed waived for all purposes.
9 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
LABORERS LOCAL NO. 341 921
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The hearing held in Anchorage, Alaska, on July 29,
1975, in which we participated and had a chance to give
evidence, resulted in a decision that we had committed cer-
tain unfair labor practices in violation of Section 8(b)(1)(A)
and 8(b)(2) of the National Labor Relations Act, and this
notice is posted pursuant to that decision.
The National Labor Relations Act gives all employ-
ees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a representative they
choose
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all such activities.
In recognition of these rights, we hereby notify our
members that:
WE WILL NOT cause Bannister-Joyce-Leonard to lay
off Patrick J. Hurrell 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 rights guaran-
teed by the Act.
WE WILL notify Bannister-Joyce-Leonard in writing
that we have no objection to the continued employ-
ment of Patrick J. Hurrell as labor foreman.
WE WILL make Patrick J. Hurrell whole for any loss
of pay and benefits suffered because of the discrimi-
nation against him.
LABORERS AND HOD CARRIERS LOCAL No. 341,
AFFILIATED WITH LABORERS ' INTERNATIONAL UNION
OF NORTH AMERICA , AFL-CIO.