Local 334, Laborers

National Labor Relations Board - Board Decisions

Sep 11, 1973

205 N.L.R.B. 1191 (N.L.R.B. 1973)

LOCAL 334, LABORERS
Local 334, Laborers International Union of North
America, AFL-CIO (Toledo Engineering Co.) and
Theodore T. Otis and James Willis. Cases 7-
CB-2593 and 7-CB-2610
September 11, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
On February 21, 1973, Administrative Law Judge
Ralph Winkler issued the attached Decision in this
proceeding. Thereafter, General Counsel filed excep-
tions and a supporting brief.
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 brief
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 Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
DECISION
STATEMENT OF THE CASE
RALPH WINKLER , Administrative Law Judge: Upon
charges and amended charges filed by the aforenamed indi-
viduals on April 11 and May 4 and 10, 1972, the General
Counsel of the National Labor Relations Board issued a
consolidated complaint on September 29, 1972, against Re-
spondent Local 334, Laborers International Union of North
America , AFL-CIO (herein called the Union or the Local),
alleging violations of Section 8(b)(1)(A) of the Act. Respon-
dent denied the alleged violations , and a hearing was held
in Detroit , Michigan , on November 28-30 and December
12, 1972.
Upon the entire record in the case, including my observa-
tions of the demeanor of witnesses , and upon consideration
of briefs, I make the following:
1 This employer is engaged in commerce within Section 2(6) and (7) of the
Act
FINDINGS OF FACT
I THE UNFAIR LABOR PRACTICES
Introduction
1191
The complaint in this matter originally included unfair
labor practice allegations (Case 7-CA-945 1) against Toledo
Engineering Co.,' as well as various unfair labor practice
allegations against the Union. The Toledo Engineering por-
tion of the complaint involved alleged discrimination re-
specting Theodore Otis, 8(a)(3) allegations as to Toledo, and
Section 8(b)(2) as to the Union. The other allegations
against the Union were, in effect, a broadside challenge tc
the entire manner of the Union's operation of its hiring hal
or referral system.
Opening of the hearing on the original complaint was
postponed to give the parties an opportunity for settlement
discussions. They worked hard and long to this end, and
their efforts were fruitful? The employer and the Union
settled the Otis matter with the General Counsel; I ap-
proved such disposition and then granted a motion to sever
the "CA" portion of the complaint against the Union. Both
agreements contained "non-admission" clauses.
In addition to settling its portion of the Otis complaint,'
standards and otherwise to reorganize the mechanics and
administration of its referral system. However, one allega-
tion of the complaint against the Union was not settled, and
the parties accordingly went to trial on this single issue
which is set forth in paragraph 19 of the complaint. The
gravamen of this remaining allegation, so far as future oper-
ations are concerned, is subsumed and proscribed, in my
opinion, by the remedial provisions of the settlement agree-
ment as to the referral system. For, had Respondent's agent
Carter engaged in the questioned conduct alleged in para-
graph 19, the Union would not permit him to continue
doing so if it faithfully performs its settlement undertakings.
The allegation thus reserved is that the Union violated
Section 8(b)(1)(A) of the Act in that:
19. On or about January 15, 1972, Respondent Lo-
cal 334, by its agent Willie Carter, solicited and re-
ceived from an applicant [James Willis] for referral
payment of money as a condition for referral by Re-
spondent Local 334 to available employment and
which payment of money was not reasonably related to
the operation of the hiring hall.
Denying the factual predicate of the allegation Respondent
further asserts that this matter is, in any event, not properly
before the Board whether or not the alleged facts are true.
Respondent Local has about 5,500 members with geo-
2 It may be presumptuous for me to commend the representatives and their
principals for a job well done However, having some awareness of the
delicacy and difficulties of the problems involved, I must acknowledge to all
representatives my own respect for their patient application of the highest
standards of professionalism in this connection.
3 The record was reopened on December 12, 1972, at which time I ap-
proved an agreement of all participating parties to revise an item of the Otis
settlement
In view of my resolution of this case, I do not reach the legal-policy
considerations urged by Respondent , nor, therefore, do I reach the merits of
the legal propositions advanced by the General Counsel.
205 NLRB No. 171
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
graphical jurisdiction over Wayne and Macomb Counties in
Michigan, including the city of Detroit. It has contracts with
The Association General Contractors of America, Detroit
Chapter, Inc., and the Builder's Association of Metropoli-
tan Detroit, as agent for the latter's employer members;
Union Business Manager Willie Carter testified that the
Union is under contract with some 600-900 contractors.
Respondent's AGC and all its other contracts provide, in
part, that "Beyond the Employers regular employees the
Employer agrees to give the Local Union in the area an
opportunity to supply any additional men." The record
shows that employees regularly associated with a particular
employer may obtain work either directly with the employer
or by Union referral, and Carter testified that under the
contracts employers are supposed to call the Union for any
extra or additional men they need. Respondent Union con-
cedes that at least "a substantial number of times" it has
exclusive referral arrangements with out-of-town employers
coming into its area.
Carter is serving his second 3-year term as the Local's
Business Manager, an elective office. The Uniform Local
Union Constitution of the Union's parent International
states that the business manager is a Local officer and "the
recognized representative of the Local Union" (article IV,
E) and the document describes the responsibilities and au-
thority of business managers. Carter testified that referral
slips are "drawn up and maintained under . . . [his] direc-
tion and control." Each working day men seeking work
congregate in a waiting room adjoining Carter's office.
Upon receiving calls for laborers from the various contrac-
tors, Carter makes his selection from among the waiting
men and, except in unusual situations, he gives each selectee
a referral slip. At material times here, this hiring hall thus
has operated in a "shape-up" fashion without, apparently,
any established standards governing Carter 's selection.5
The record establishes , the parties stipulated, and Carter
testified that, except for initiation fees and regular dues, the
regulations of the Local Union do not either require or
permit payment of any monies as a condition of referral.
A. The alleged Willis incident
James Willis had been a union member since 1966. Willis
testified that in 1970 he had one job, that in 1971 Carter sent
him to one shortjob and to another one lasting 5 months,
and that he received no further referrals from November
1971 at least through January 15, 1972, although he sought
employment at the hiring hall practically every working
day.
Willis testified that he spoke to Carter in early January
1972, and his testimony on direct examination is as follows:
A. I asked Mr. Carter for a job and Mr. Carter said,
Willis, said you have to do what the rest of the members
do. I said like what. He said join the club.
Q. What?
A. Join the club, so I said what do you mean, and
5 It is recalled that the aforementioned settlement provides for the estab-
lishment , publication , and enforcement of "lawful non -arbitrary relevant and
non-discriminatory standards 11
he said well if you want to work steady you have to give
up some money. So I said to him how much money do
you want, and he said what have you got, two or three
hundred dollars. So I said yes? . . So after the 6th of
January I-the third week in January, I gave Mr. Car-
ter two one hundred dollar bills, and he knows it.
Willis testified that Carter thereafter sent him on a 2-dayjob
in January 1972 and a 5-day job in February and that Carter
has not dispatched him since then (Willis testified on No-
vember 29, 1972). Willis testified that he did have a 5-week
job in Pontiac but not through union referral.
Willis testified that after "the third week in January," as
set forth above, he next spoke to Carter "around April. I
went to Mr. Carter's office and talked with him on Thurs-
day morning." Still on direct examination, Willis continued
as follows:
Q. What did you say and what did he say?
A. I asked Mr. Carter for a job. Mr. Carter told me,
he said, Willis, I see you went down and put in a
complaint on me, and I am not going to give you no
job, and I asked Mr. Carter, I said, Mr. Carter,-
Q. Did you have a complaint filed against him then?
A. No, sir, I didn't. I put in my complaint around
May.
Q. How long after that did Mr. Carter tell you he
understood you had filed a complaint?
MR O'HARE [Union counsel]: Objection. He is re-
versing the witness' testimony in his questioning and
altering the time sequence.
JUDGE WINKLER You say you spoke to Carter in
April. About April of '72?
THE WITNESS That's right.
JUDGE WINKLER You asked him for a job?
THE WITNESS Yes.
JUDGE WINKLER What did he say at that time?
THE WITNESS Mr. Carter said, this is what Mr. Carter
told me, Willis, I am not going to give you a job. I said
you mean to tell me that you are not going to give me
a job, and you got people here from Tennessee that is
working every day, don't have a union book, not in the
union, not a citizen or taxpayer and you are going to
send them to work before you send me to work. Mr.
Carter told me I will do what I want to and ain't no-
body going to stop me from doing it. If you can stop
me, you stop me. So I asked Mr. Carter have anybody
come in his office to talk to him about me, and he told
me if anybody comes in his office and talks to him
about me, he will throw them out the window.
JUDGE WINKLER Did there come a time that you filed
a complaint with anybody about Mr. Carter?
THE WITNESS Yes, this year, May.
JUDGE WINKLER What kind of a complaint was that?
Mr FISCHER And where?
JUDGE WINKLER Hold where. What kind of a com-
plaint?
THE WITNESS Discrimination
JUDGE WINKLER Now, where?
THE WITNESS Civil Rights Commission.
JUDGE WINKLER After you filed that complaint with
the Civil Rights Commission, did you have any further
conversation with Mr. Carter?
LOCAL 334, LABORERS 1193
THE WITNESS No.
Q. (By Mr. Fischer) Did you file any other com-
plaint against him in May?
A. Sure.
Q. Where?
A. Down here, and I wrote to the International.
Q. Now was anything else said during that conversa-
tion with Mr. Carter in May?
MR O'HARE I object to that question. The witness
has testified he talked to Mr. Carter in April.
Q. (By Mr. Fischer) When did you have your last
talk with Willie Carter?
A. I believe-I am not positively sure but I believe
in May or June... .
The record shows in connection with the above chronologi-
cal confusion that Willis mailed two letters, dated April 11,
1972, complaining to the International president about Car-
ter; that Willis filed his charge in the present case on May
4, 1972; and that he filed a complaint with the Michigan
Civil Rights Commission on June 20, 1972.1
Willis testified that he borrowed some money from Carter
in January 1972 and repaid it the following day.
B. Carter's testimony
The confrontation between Carter and Willis came to
pass, inevitably, as one knew it would.
Carter denied Willis' testimony that he either requested
or received any monies from Willis in January 1972. He
testified, as did Willis, that he had lent some money to
Willis, but he placed the incident in March or April 1972,
and that Willis repaid him a few days later. Carter further
testified that as he was leaving his office 1 day "maybe" in
November 1971-he wasn't certain except that he didn't
believe it was in 1972-Willis approached him and that
Percy King, another union member, was with Willie at the
time . According to Carter, Willis said he would give $200
to Carter for jobs for Willis and King. Carter testified that
he reprimanded Willis and said he would bring Willis before
the union executive board should Willis repeat such offer.
Carter testified that he then suggested to Willis that Willis
and King come to the union hall the next day and he would
see if he could get work for them.
c. King's testimony
At the conclusion of Carter's testimony I requested that
King, who was not at the hearing, be summoned to testify,
that I desired to examine him in connection with Carter's
testimony. When he appeared I inquired who had notified
him to appear, and he replied that Willis had done so and
that a friend of Willis brought him to the hearing. King also
said that the individual who picked him up told him why he
had been called and King then stated that he knew what I
6 This civil rights complaint alleges that Carter "requires members pay him
for job referrals and places more whites than blacks on jobs." Carter and
Willis are black, and this record contains neither hint nor suggestion of racial
preference Such racial issue was not litigated, but if such factor were in-
volved, it is reasonable to believe that it would have been mentioned in
passing by one witness or another In any event, I draw no inference, nor
predicate a finding on this item
was going to ask him about before I even broached the
subject matter to him. I had hoped, futilely, that he would
testify without his having discussed the matter with anyone
interested in the proceeding.
King testified that he was out of town from October 1971
through February 1972. King further testified, however,
that on an occasion of Carter leaving the hall, he and Willis
had spoken to Carter about a job. According to King, this
incident was long before 1971, "roughly" about the end of
1968. King testified that Carter said he would see them the
next day, but that he, King, left for Chicago "at about
ten-thirty" the following day. When asked about the possi-
bility that Willis and Carter had a separate private conver-
sation apart from him on that occasion, King said in effect
that he couldn't recall either that they did or did not.
II FURTHER EVIDENCE AND CONCLUDING FINDINGS
The General Counsel does not claim that all employees
have been or are required to pay Carter for referrals, and
he stipulated that many of them do not. The only issue
tendered here deals with the alleged Willis incident. In pre-
senting his case, the General Counsel sought to adduce
testimony concerning a few other situations purportedly
involving payoffs; the Respondent meanwhile sought, in
effect, to call the entire Local membership to testify that
they had not made any such payments to Carter. The
Respondent's proferred line of inquiry, endlessly time con-
suming as it would have been, would be relevant and of
probative value had the General Counsel alleged a general
payoff practice, but he did not. The General Counsel's offer
concerned alleged events purportedly involving an employ-
ee in August 1970 and again 6 or 7 months later, a second
employee in 1968 or 1969 and again in 1970, and Willis in
1966 when Carter was a dispatcher. These items were rele-
vant, according to the General Counsel, because they would
bear on the anticipated credibility conflict between Carter
and Willis, and the General Counsel thus argued that they
would assist me in resolving such conflict. But these men-
tioned items would involve credibility issues of their own.
Even were I to credit the General Counsel's witnesses re-
specting these few items, such resolution on collateral mat-
ters would have little, if any, probative value in the
resolution of the Willis-Carter matter in a context of a Local
membership exceeding 5000. Apart from considerations un-
der Section 10(b) of the Act, and apart from inherent weak-
ness of at least some portions of this offer which are in
question-and-answer form, I ultimately ruled these items to
be irrelevant and immaterial to the very narrow issue pre-
sented by paragraph 19.
King did corroborate a portion of Carter's testimony to
the effect, and I find, that Willis and King did approach
Carter for jobs on an occasion when Carter was leaving the
union hall and that Carter told them to see him the follow-
ing day. King, however, placed this occasion toward the end
of 1968, and in this respect he may be said to corroborate
Willis and not Carter, for he also testified that he was not
in Detroit in January 1972. Was there a Carter-Willis meet-
ing in January 1972, as Willis testified, as well as the Carter-
Willis-King meeting to which Carter and King testified?
Carter, in effect, denies Willis' account that there was a
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Willis-Carter meeting; Willis, on the other hand, did not
testify at all concerning the Willis-Carter-King incident.
Because King said the King-Carter-Willis incident occurred
about 4 years before his appearance as a witness at this
hearing and because he testified that the passage of time had
dimmed his recollection of that meeting so that he could not
recall whether a private conversation between Carter and
Willis had or had not occurred on that occasion, I consid-
ered it of interest that he would nevertheless be able to
testify that he left for Chicago "at about ten-thirty" the
following day. This suggests various possibilities, among
which is that, even assuming King's credibility in such con-
nection, he might have been honestly mistaken concerning
the time of the King-Carter-Willis incident; 7 other obvious
7 Respondent seemed to score a credibility "point" in connection with
Willis' testimony concerning an April meeting during which Willis had Car-
ter mentioning a "complaint" even though the charge in this case was filed
possibilities, while considered, need not be discussed.
The Act directs that findings of violation be made on a
preponderance of the evidence. Applying such standard I
am unable to find that the record establishes the facts al-
leged in paragraph 19 of the complaint.
Upon the basis of the foregoing findings and conclusions,
and upon the entire record in the case, I accordingly issue
the following recommended:
ORDERS
Paragraph 19 of the complaint is hereby dismissed.
afterwards. Although Willis testified that he did not complain to the Interna-
tional Union until May, the record shows, as indicated above, that he actual-
ly had done so on April 11
t 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, recommendations, 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
* U.S GOVERNMENT PRINTING OFFICE 1975 0-550-243