Local 320, Int'l Union of Operating Engineers

National Labor Relations Board - Board Decisions

Dec 16, 1964

150 N.L.R.B. 455 (N.L.R.B. 1964)

LOCAL 320, INT'L UNION OF OPERATING ENGINEERS 455
places where notices to employees 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.
(e) Notify the Regional Director for Region 5, in writing , within 20 days from
the date of the receipt of this Decision , what steps Respondent has taken to comply
herewith.13 -
'3 In the event that this 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 the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
As recommended by a Trial Examiner of the National Labor Relations Board,
we are posting this notice to inform our employees of the rights guaranteed them in
the National Labor Relations Act:
WE WILL offer Clyde Scott , Howard Scott, and Warren Scott their former
jobs and pay them for wages they may have lost since December 26, 1963,
January 2, 1964 , and February 4, 1964, respectively.
WE WILL NOT discharge or otherwise discriminate against any employee for
engaging in activity on behalf of United Mine Workers of America, or for
engaging in any other union or concerted activity for mutual aid or protection
of employees.
WE WILL NOT threaten our employees with closing the plant , discharge them
or lead them to believe that wage increases are granted in order to discourage
union activity.
WE WILL NOT in any like or related manner interfere with, restrain , or coerce
our employees in their right to form , join, or assist any labor organization or
engage in any concerted activity or to refrain from such union or concerted
activity.
ALPINE COAL COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
NOTE.-We will notify the' above -named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, 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.
Employees may communicate directly with the Board 's Regional Office, Sixth
Floor, 707 North Calvert Street , Baltimore , Maryland, Telephone No. 752-8460,
Extension 2100, if they have any question concerning this notice or compliance with
its provisions.
Local No . 320, International Union of Operating Engineers,
AFL-CIO [R . W. Hughes Construction Company, Inc.] and
C. V. Stelzenmuller, Attorney. Case No. 10-CB-1445. Decem-
ber 16, 1964
DECISION AND ORDER
On June 2, 1964, Trial Examiner W. Gerard Ryan issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices in
violation of the Act. and recommending that Respondent cease and
150 NLRB No. 47.
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
desist therefrom and take certain affirmative action as set forth in the
-attached Decision. Thereafter, Respondent filed exceptions and a
supporting brief.'
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in
connection with this case to a three-member panel [Chairman McCul-
loch and Members Leedom and Jenkins].
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 .2 The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in this case and hereby adopts the findings, conclusions, and recom-
mendation of the Trial Examiner.
.Contrary to our dissenting colleague, we are satisfied that the
credited testimony fully establishes that Ezell, Respondent's assistant
business manager, threatened Hughes' officials with a strike and de-
manded Narmore's discharge because Narmore had obtained a job
from Hughes without a clearance from the Union's hiring hall, and
not because he was incompetent.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended , the Board hereby adopts as its Order the Order recom-
mended by the Trial Examiner, and orders that Respondent, Local
320, International Union of Operating Engineers, AFL-CIO, its
officers, agents , and representatives, shall take the action set forth in
the Trial Examiner's Recommended Order with the following
modifications :
a. In paragraph 1(a) of the Recommended Order insert after the
word "employer" the words "over whom the Board has, and would
assert, jurisdiction under the Act."
i The Respondent 's request for oral argument is denied because , in our opinion, the
record, including the exceptions and brief, adequately sets forth the issues and the posi-
tions of the parties.
2 Respondent excepts to the refusal of the Trial Examiner to allow its examination at
the hearing of pretrial statements by Lee, a witness for the General Counsel. The Trial
Examiner twice denied Respondent 's request for production of such statements , first in
the middle of the direct examination of the witness , on the ground the request was
premature , and later , after the witness had been cross -examined and excused, on the
ground the request came too late. The Trial Examiner explained to Respondent that the
appropriate time for it to request such statements is just prior to its cross -examination of
the witness for the General Counsel. We find no prejudicial error in either ruling.
Walsh-Lumpkin Wholesale Drug Company, 129 NLRB 294 , 296; Section 102.118 of the
Board's Rules and Regulations , Series 8, as amended. It would disorganize hearings if
respondents were given the right to demand a pretrial statement during the General
Counsel's examination of the witness . It would also interfere with the orderly conduct
of the hearing to permit access to such statement after the witness had been excused,
because it would necessitate the witness ' recall for further examination . A decision to
refuse such a deviation from normal procedure is within the Trial Examiner 's area of
discretion . Moreover , in the present case, Respondent was given specific prior notice of
the proper time to make its request , but failed to do so.
LOCAL 320, INT'L UNION OF OPERATING ENGINEERS 457
b. In the first subparagraph of the Appendix :
(1) Delete the phrase "whose operations affect commerce within
the meaning of the Act" and substitute therefor the phrase "over
whom the Board has, and would assert, jurisdiction under the Act."
(2) Delete the phrase "or any other employee or applicant for
employment."
MEMBER JENKINS, dissenting :
I do not find that the record in this case supports the Trial Exam-
iner's conclusion that the Respondent violated- Section 8 (b) (2) of
the Act.
The record shows that Narmore, a very elderly man, was incapable
of handling a crane even though he was a member of the Respondent
Union. Indeed, the only time he attempted to operate the crane at
the project he had an accident, and the Ironworkers refused to con-
tinue working until, he was replaced. The Union was aware of
Narmore's inability to operate a crane safely, as evidenced by the
statements of its business agent to the Employer on May 27, 1963.
Business Agent Ezell told the Employer that Narmore was too old
to operate a crane and was sent out only on small jobs to attend air
compressors and welding equipment.
Upon these facts, I am unwilling to say that Narmore's discharge
was caused by the fact that he had not been referred to the Employer
by the Respondent Union. Rather, I find that the facts more readily
lend themselves to the conclusion that the Respondent's insistence on
Narmore's removal was unconnected with his union membership
status, except to the extent such status depended upon his ability to
operate a crane.
Accordingly, I would find that the Respondent did not violate Sec-
tion 8(b) (1) (A) and (2) of the Act, and I would dismiss the com-
plaint in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding was held before Trial Examiner W. Gerard Ryan in Birmingham,
Alabama, on February 5 and 6, 1964, on the complaint of General Counsel and the
answer of Local No. 320, International Union of Operating Engineers , AFL-CIO,
herein called the Respondent .) The issue litigated was whether the Respondent vio-
lated Section 8(b)(1)(A) and (2) and Section 2(6) and (7) of the Act. Briefs
have been filed by General Counsel, the Respondent , and the Charging Party.
Upon the entire record and from my observation of the witnesses , I make the
following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE EMPLOYER
R. W. Hughes Construction Company, Inc., herein called Hughes , is, and has been
at all times material herein , an Alabama corporation having its " principal place of
1 The charge was filed and served on the Respondent on November 18, 1963. The com-
plaint Issued on January 14, 1964.
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
business in Birmingham, Alabama, where it is engaged in the business of structural
steel construction and erection. It was stipulated that during the past calendar year,
Hughes performed services in excess of $22,000 outside the State of Alabama. Dur-
ing the same period it performed services valued in excess of $32,000 for General
Electric Corporation, herein called General Electric; Northrop Corporation, herein
called Northrop; and Continental Conveyor and Equipment Co., herein called Conti-
nental. General Electric which has its principal plant in the State of Kentucky, annu-
ally produces and ships products valued in excess of $50,000 directly to customers
outside the State of Kentucky. Northrop has a principal plant in the State of Cali-
fornia and annually performs services valued in excess of $50,000 for customers
outside the State of California, and during the past calendar year has performed
services for the National Aeronautical and Space Administration at Huntsville,
Alabama, pursuant to a contract valued at more than $50,000. Continental annu-
ally produces and ships from its Alabama plant located at Winfield, Alabama, prod-
ucts valued in excess of $50,000, direct to customers outside the State of Alabama.
It was further stipulated that General Electric, Northrop, Continental, and R. W.
Hughes Construction Company are, and have been during the past calendar year,
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
I so find.
II. THE LABOR ORGANIZATION INVOLVED
Local No. 320, International Union of Operating Engineers, AFL-CIO, is and has
been at all times material herein, a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The complaint alleged and the answer denied that, in violation of Section 8(b)
(1) (A) and (2), the Respondent on or about May 27, 1963, attempted to cause and
did cause R. W. Hughes Construction Company, Inc., to discharge William Henry
Narmore because Narmore had not been referred to Hughes by the Respondent.
The complaint alleged and the answer admitted that at no time material herein has
there been an exclusive referral agreement between the Respondent and Hughes.
R. W. Hughes Construction Company, Inc., was the subcontractor for the erection
of the structural steel in the construction of the Pizitz Department Store job in Hunts-
ville, Alabama. F. R. Hoar and Sons was the general contractor. Hughes moved in
on the job on May 21, 1963,2 and began work on May 22. After 17 working days
the job was completed on June 25.3
On May 21, James T. Lee, Jr., president of Hughes, telephoned the Respondent's
business agent, Hobart Williams, in Florence, Alabama, and asked Williams to clear
Jack Ivey, Hughes' crane operator, for the Huntsville job and also to send Hughes
an oiler for the crane. Ivey had been a crane operator for 7 years with Hughes and
was a member in good standing of Local Union 312, International Union of Oper-
ating Engineers, AFL-CIO, in Birmingham, Alabama. Williams told Lee that the
assistant business agent of the Respondent, Hiram Ezell, would be on the job on the
next day.
Ezell came to the jobsite the next morning, Wednesday, May 22, and Lee again
requested clearance for Ivey. Ezell replied that he had a lot of operators out of
work and that Lee would have to put one of his operators on the job before he would
clear Ivey. Lee refused, saying he did not have any use for another operator but
that later on he could use one to look after the air compressor and the welding
machine. But Ezell insisted that if he was to clear Ivey, Lee would have to have
one of his operators on the jobsite. On the same day, Lee telephoned to the 'Charging
Party, C. V. Stelzenmuller, and discussed with him the clearance of Ivey.- Lee stated
that Stelzenmuller volunteered to see if he could get one of Respondent's unemployed
crane operators for employment by Lee.
On Thursday, May 23, William Henry Narmore came to the jobsite and told Lee
he understood he needed another crane operator.4 Narmore told Lee that he was
a crane operator, a member of Local Union 320 (the Respondent) in good standing,
and produced his union book. Narmore, who was 74 years old, told Lee he had
been operating for about 35 years. Narmore was the holder of a "parent" book and
2 All dates herein refer to 1963 unless otherwise stated.
0 Hughes used the crane for 8 days in erection of steel and then rented the crane to
the Hoar Company for 9 days in setting stone on the building.
* Narmore testified that the night before, Robert MeAlpin, also a member of Respondent
Union, told him that the Hughes Company wanted to hire a crane operator in Huntsville.
LOCAL 320, INT'L UNION OF OPERATING ENGINEERS 459
was classified as a qualified crane operator . Lee then hired Narmore as a crane
operator at the rate of $4.10 per hour and told Narmore he would have to have an
operator on the jobsite and would keep him as long as the job lasted.
On Friday, May 24, Lee was absent from the jobsite. Ezell visited the jobsite
sometime on Friday and spoke to Narmore asking him what he was doing there.
Narmore told Ezell he was on the payroll.5 Ezell also spoke to Jack Ivey, the crane
operator, and told him he was not cleared by the Respondent, but gave Ivey permis-
sion to operate the crane for that day without endangering his union book and having
charges preferred against him with the International Union.
On Monday,'May 27, Ezell went to the jobsite around 8 o'clock in the morning.
Pointing to Narmore , Ezell asked Lee, "What is that man doing on the job ?" Ezell
and Lee then conversed in the trailer office. Ezell told Lee that Ivey could not oper-
ate or start the crane and if he did so, Ezell would prefer charges against him and
get his union book . Ezell again told Lee he had operators out of work in his local
and before the Hughes Company went to work there it was going to have one of his
men on the jobsite . Lee answered , "I have already hired one of your men on the
jobsite. He is out there right now, Mr. W. H. Narmore. He is out of your Local
and is a crane operator." Ezell replied that Narmore was not his man; that Nar-
more was nothing but a troublemaker and if Lee wanted to clear Ivey in he would
have to get rid of Narmore and put one of his operators on the jobsite . Lee inquired,
"I will have to lay Mr. Narmore off and put one of your operators on" and Ezell
replied, "Yes , sir, that is it." Ezell also stated that during the course of this conver-
sation that the Hughes Company would either put one of his operators on or he,
Ezell, "would put a picket line on the jobsite and shut the whole job down." When
Johnny Cone, who was superintendent for the Hoar Company, heard Ezell say that
he was going to strike the job, he jumped up and said that this was a "penalty job,"
a $500-a-day penalty job and there could be no strike on this job and that he wished
Ezell and Lee could get together and get this thing settled, to which Ezell replied
that "it could be easily settled by putting one of his operators out there on the job."
Lee told Ezell he did not need two crane operators as he only had one crane on the
job. During the conversation, Lee told Ezell that Narmore had an operator's book,
was paid up , and was in good standing out of his "Ezell's" local. To that Ezell
stated that Narmore was not sent to that job through his local there and that Nar-
more was nothing but a troublemaker and an old man , too old to operate a crane.
Ezell stated further that they only sent Narmore out on small jobs to look after
welding machines and air compressors. To that Lee replied that Narmore had an
operator's book and he did not know why he would hold on to that book if he could
not operate a crane.
A final decision was reached by Ezell and Lee to the effect that Ezell would clear
Jack Ivey for work on the job and would send one of his operators out of the
Respondent Union to the job the following morning. The next morning, Tuesday,
May 28, Matt Worsham reported to Lee saying that he had been sent out by the
Union to replace Narmore. Worsham was hired by Lee and worked that day and
Monday and Tuesday of the following week.
Narmore had reported for work on Monday, May 27, but did not remain on the
job. He returned to work the next day, saw Worsham on the job, and sought out
Lee who told him he was laying Narmore off to get the job going and had to put on
the operator sent out by the Union.
The foregoing findings are based on the credited testimony of Lee , Narmore, and
Cone.
The Respondent's Defense
The Respondent contends that: It did not even know that Narmore was working
on the job; he was not an employee within the meaning of the Act; and there is no
competent evidence that the Respondent sought the discharge of anyone. The
Respondent further contends that it sought only the employment of one of its mem-
bers within the framework of the union rules. I find no merit in the Respondent's
defense.
I conclude and find that the Respondent caused Hughes to discharge William
Henry Narmore on May 28, 1963, because Narmore had not been referred to Hughes
by the Respondent. Thus, I find that the Respondent engaged in the unfair labor
practices violative of Section 8(b)(1) (A) and (2) and Section 2(6) and (7) of the
Act as alleged in the complaint.
5 Ezell testified that Narmore told him he was not on the payroll
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The unfair labor practices found to have occurred as set forth above, occurring in
connection with the operations of Hughes described 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 commerce and
the free flow thereof.
V. THE REMEDY
In view of my finding set forth above, that the Respondent has engaged in unfair
labor practices defined in Section 8(b) (1) (A) and (2) of the Act, I shall recommend
that it be required to cease and desist therefrom and take such affirmative action as
appears necessary and appropriate to effectuate the policies of the Act. I shall rec-
ommend that the Respondent make William Henry Narmore whole for the loss of
earnings suffered as 'a result of the discrimination against him by payment of a sum
of money equal to what he would have earned working for Hughes on the Pizitz
Department Store job after May 28, 1963, less net earnings during said period, net
earnings to be computed on a quarterly basis as in F. W. Woolworth Company, 90
NLRB 289, with interest computed as in Isis Plumbing & Heating Co., 138 NLRB 716.
1 shall recommend that Respondent post at its regular meeting place copies of the
attached notice marked "Appendix."
On the basis of the foregoing findings of fact and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. Local No. 320, International Union of Operating Engineers, AFL-CIO, is a
labor organization within the meaning of the Act.
2. R. W. Hughes Construction Company, Inc., is an employer engaged in com-
merce within the meaning of the Act.
3. By causing Hughes to terminate the employment of William Henry Narmore
on or about May 28, 1963, because he had not been referred to Hughes by the
Respondent, the Respondent engaged in unfair labor practices defined in Section
8(b)(1)(A) and (2) of the Act.
4. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this proceeding, I recommend that the Respondent, Local No.
320, International Union of Operating Engineers, AFL-CIO, its officers , agents, and
representatives, shall:
1. Cease and desist from:
(a) Causing or attempting to cause R. W. Hughes Construction Company, Inc.,
or any other employer, to terminate employment of William Henry Narmore on any
project within its territorial jurisdiction on the basis of not having been referred to
Hughes by the Respondent.
(b) In any like or related manner restraining or coercing employees in the exer-
cise of their rights under Section 7 of the Act, except to the extent permissible under
an agreement lawfully entered into pursuant to the provisions of the Act.
2. Take the following affirmative action to effectuate the purposes and policies of
the Act:
(a) Make whole William Henry Narmore for loss of earnings in the manner set
forth in the section above, entitled "The Remedy."
(b) Post at its business office and at all places where notices to members and
applicants for referral are posted, copies of the attached notice marked "Appendix." 6
Copies of said notice, to be furnished by the Regional Director for Region 10, shall,
after being duly signed by an authorized official of Respondent, remain posted at the
places indicated, for a period of not less than 60 consecutive days. Reasonable steps
shall be taken by Respondent to assure that said notices are not altered, defaced, or.
covered by any other material.
u If this Recommended order be adopted by the Board, the words "a Decision and
Order" shall be substituted for the words "the Recommended Order of a Trial Examiner"
in the notice . If the Board's Order Is enforced by a decree of a United States Court of
Appeals, the notice will be further amended by the substitution of the words "a Decree
of the United States Court of Appeals, Enforcing an Order" for the words "
a Decision
and Order."
LOCAL 7, ETC., PLUMBING & PIPEFITTING INDUSTRY 461
(c) Notify the Regional Director for Region 10, in writing , within 20 days from
receipt of this Decision, what steps Respondent has taken to comply with it.7
7If this Recommended Order be adopted by the Board , this provision shall be modified
to read: "Notify the Regional Director for Region 10, in writing, within 10 days from
the date of this Order , what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL MEMBERS AND APPLICANTS FOR REFERRAL
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 Rela-
tions Act, as amended, we hereby give notice that:
WE WILL NOT cause or attempt to cause R. W. Hughes Construction Com-
pany, Inc., or any other employer whose operations affect commerce within the
meaning of the Act, to terminate the employment of William Henry Narmore,
or any other employee or ,applicant for employment in violation of Section
8(a) (3) of the Act.
WE WILL NOT in any like or related manner restrain or coerce employees of
or applicants for referral of any other employer engaged in commerce within
the meaning of the Act.
WE WILL make William Henry Narmore whole for loss of earnings suffered
as a result of the discrimination against him on the Pizitz Department Store job
at Huntsville, Alabama.
LOCAL No. 320, INTERNATIONAL UNION OF
OPERATING ENGINEERS , AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
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.
Members and applicants for referral may communicate directly with the Board's
Regional Office, 528 Peachtree-Seventh Building, 50 Seventh Street NE., Atlanta,
Georgia, Telephone No. Trinity 6-3311, Extension 5357, if they have any question
concerning this notice or compliance with its provisions.
Local No. 7, Albany , New York and Vicinity , United Association
of Journeymen and Apprentices of the Plumbing and Pipe-
fitting Industry and James H. Maloy, Inc. and Construction
and General Laborers Local 190, International Hod Carriers,
Building and Common Laborers Union, AFL-CIO. Case No.
3-CD-1126. December 16, 196./
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the Act following a
charge filed by James H. Maloy, Inc., herein called the Employer,
alleging that Local No. 7, Albany, New York, and Vicinity, United
Association of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry, herein sometimes called the Respondent, had
violated Section 8(b) (4) (D) by threatening, coercing, or restraining
the Employer for the purpose of compelling it to assign certain work
to employees represented by Respondent, rather than to employees
150 NLRB No. 50.