Local 542, Int'l Operating Engineers, AFL-CIO

National Labor Relations Board - Board Decisions

Mar 9, 1965

151 N.L.R.B. 497 (N.L.R.B. 1965)

LOCAL 542, INT'L OPERATING ENGINEERS , AFL-CIO 497
taken by Respondent to insure that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for Region 23, in writing, within 20 days from
the receipt of this Decision, what steps Respondent has taken to comply herewith.6
It is further recommended that the complaint be dismissed insofar as it alleges viola-
tions of Section 8(a)(3) and (4) of the Act and also as to alleged Section 8(a)(1)
violations except as found herein.
0In the event that this Recommended Order be 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 A
NOTICE TO ALL EMPLOYEES
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 notify you that:
WE WILL NOT threaten employees with discharge or other reprisals if they
should go on a strike called by the Union.
WE WILL NOT change working conditions by eliminating cleanup and washup
time nor impose restrictions on coffee break privileges because the employees
have gone on strike or in order to coerce the Union into signing a contract.
WE WILL NOT promise restoration of certain privileges on condition that the
Union sign a contract.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization, to form, join,
or assist Oil, Chemical and Atomic Workers International Union, AFL-CIO, or
any other labor organization, to bargain collectively through representatives of
their own choosing, or to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to refrain from any
or all such activities.
WE WILL fully restore all such working conditions and privileges as existed
prior to the strike of January 13, 1964, or as they may be negotiated by bargain-
ing with said Union as the collective-bargaining representative of our employees.
All our employees are free to become or remain or refrain from becoming or
remaining members of the above-named or any other labor organization.
RIO GRANDE VALLEY GAS COMPANY,
Employer.
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.
Employees may communicate directly with the Board's Regional Office, 6617 Fed-
eral Office Building, 515 Rusk Avenue, Houston, Texas, Telephone No. Capitol
8-0611, Extension 4271, if they have any question concerning this notice or compli-
ance with its provisions.
Local 542, International Union of Operating Engineers , AFL-CIO
[Ralph A. Marino, General Contractor ] and Anthony Scariot
Local 542, International Union of Operating Engineers , AFL-CIO
and Americo Sella. Cases Nos. 4-CB-917-1 and 4-CB-917-2.
March 9, 1965
DECISION AND ORDER
On October 25, 1963, Trial Examiner William J. Brown issued
his Decision in the above-entitled proceeding, finding that Respond-
151 NLRB No. 55.
7 8 3-13 3-6 6-v o f 151-33
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner's Decision . Thereafter , Respondent filed exceptions to
the Trial Examiner 's Decision and a brief in support thereof. The
General Counsel filed a brief in support of the Trial Examiner's
Decision.
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 [Members Fanning , Brown,
and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision , the exceptions and briefs , and the entire
record in the case, and does not adopt the findings , conclusions,
and recommendations of the Trial Examiner for the reasons noted
hereafter.
The facts herein are not in dispute.
Ralph Marino , a Pittsburgh proprietorship and general con-
tractor, hereafter called Marino, undertook a sewer contract project
in Gilbertsville , Pennsylvania , under subcontract from the main
contractor , George Tripp , Inc. Prior to beginning work, Marino
had sent a letter to Tripp stating his willingness to abide by the
terms of Tripp 's contract with Local 542 , International Union of
Operating Engineers , hereinafter referred to as the Union , in whose
area the work was to be done . The Union 's collective -bargaining
agreement with Tripp included , inter alia , a hiring-hall procedure
which stated :
The Employer shall give the Union reasonable notice of its
need for workmen , and within such period shall not hire persons
not referred by the Union . If, however , the Union fails to
refer workers within a 24 hour period after having been
notified to do so, the Employer shall have a right to hire persons
not referred by the Union.
On or about October 29 , 1962, Marino commenced work in Gil-
bertsville by transferring thereto a four -man crew of his regular
employees , two of whom were Scariot and Sella, the Charging
Parties herein. Subsequently , Leone, a union business representative,
informed both Marino and the employees that the employees were
not cleared by the Union and that members in the Gilbertsville
locality were out of work. Approximately 2 weeks later, Marino
LOCAL 542, INT'L OPERATING ENGINEERS, AFL-CIO 499
discharged three of his four employees,' including Scariot and
Sella, when Leone threatened to shut down his operations if Marino's
employees were not terminated and replaced by individuals referred
by the Union. Thereafter, three individuals were referred by the
Union to replace those who were discharged.
On these facts, the Trial Examiner concluded that the Union,
which admittedly caused the discharge of employees Scariot and
Sella, had thereby violated Section 8(b) (1) (A) and (2) of the
Act. The Trial Examiner reasoned that absent an agreement
between Marino and the Union, the discharges would be unlawful.
Upon further examination, the Trial Examiner concluded that
despite Marino's letter to Tripp stating Marino's willingness to
abide by the terms of Tripp's contract with the Union, there was
no "requisite showing of a meeting of minds between Marino and
Local 542" and thus there was no agreement between these two
parties. We do not agree.
It is undisputed that Marino had agreed to abide by the terms
and working conditions set forth in Tripp's contract with the
Union and Tripp had shown the Union Marino's letter stating
he would do so. Even though Marino did not immediately execute
a written contract with the Union we find, contrary to the Trial
Examiner, that at least an oral agreement did exist between Marino
and the Union to abide by the terms of the Union's existing con-
tract with Tripp .2
The only real issue, therefore, is whether the previously quoted
referral language required Marino to use the Union's referral
services for any individuals to be employed in the Union's jurisdic-
tional area or whether it was limited solely to requirements for
new employees.
Since the basis of such referral language was to give employees
in the area preference or priority for employment on construction
projects in their area, we believe that in order to make a meaning-
ful interpretation, we must also consider the practices in the building
and construction industry, the effect of any applicable statutory
language, and finally, the effects of a broad or narrow construction
of the referral clause.
i Scariot and Sella were members of Local 66 of the International Union of Operat-
ing Engineers but were working within the area of the Respondent Union, Local 542,
International Union of Operating Engineers.
Gittins, the third employee discharged, has not alleged any discrimination and is not
a party to these proceedings. For reasons not disclosed in the record , the fourth em-
ployee apparently retained his job.
2 Hood River-Neill, 135 NLRB 43. Subsequently, Marino apparently entered into a
written agreement with the Union.
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It appears to be a common practice (although not necessarily
a uniform one) for employers in the building and construction
industry to utilize the available local supply for Work to be per-
formed in that area before hiring help outside the area .3 Indeed
construction unions have been instrumental in establishing such a
practice and have themselves established certain areas of jurisdiction
among locals of the same International Union and with other
unions. We also note that Section 8(f) (4) of the Act gives
recognition and approval to such practice by providing that it is
not an unfair labor practice when an agreement between an employer
and a labor organization of which building and construction
employees are members , gives priority for employment based upon
length of service in the particular geographical area. Thus, Con-
gress has in effect given its approval to a policy of giving priority
to employment to people already working in the area of the work
to be performed.
Finally, if we give a narrow construction to the referral clause,
employers coming from outside the area could fulfill their employ-
ment needs by wholesale transferring of employees from other
projects outside the area. Such a practice appears contrary to the
general practice in the industry and contrary to congressional
policy. In these circumstances we conclude that the referral clause
in question impliedly required the Employer to first utilize the
union referral system in securing employees for work in that area
The record does not establish that Scariot and Sella were denied
clearance or referral because of their lack of membership in the
Respondent Local but because local men in the area were out of
work and they had not utilized the Union's referral system.
As we construe the hiring and referral clause to require the
Employer to utilize the union referral system in securing employees
for the work in that area, the Union could, without violating the
Act,4 properly seek the discharge of the employees in question who
had bypassed the Union's referral system.
Accordingly, we shall dismiss the complaint.
[The Board dismissed the complaint.]
MEMBER BROWN, concurring :
I concur in the result.
3 We are cognizant that many variables like the size of project, the type of work to be
performed , and the differing practices of employers give rise to exceptions to the propoci-
tion that local labor is utilized first. Moreover, certain managerial and/or supervisory
personnel are ofttimes recognized as a necessary nucleus in the performance of work on
construction projects and are usually transferred to the job
4 Hoisting and Portable Engineers , Local 302 ( TVest Coast Steel Works ), 144 NLRB
1449, 1452; Millwrights and Machinery Erectors Local Union No. 2471, etc. (Otis
Elevator Company ), 135 NLRB 79; See also Local 357, International Brotherhood of
Teamsters , etc v . N.L.R.B. (Los Angeles-Seattle Motor Express), 365 U.S 667 at 675
LOCAL 542, INT'L OPERATING ENGINEERS, AFL-CIO 501
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This is a proceeding under Section 10 ( b) of the National Labor Relations Act, as
amended , hereinafter sometimes referred to as the Act. It came on to be heard before
Trial Examiner William J . Brown , at Philadelphia , Pennsylvania , on September 4,
1963. The General Counsel and the Respondent were represented by counsel as above
indicated . The charges of unfair labor practice had been filed by the above- indicated
Charging Parties, hereinafter sometimes referred to as Scariot and Sella, respectively,
on April 30 , 1963, and the complaint herein had been duly issued on July 22, 1963,
by the General Counsel acting through the Board 's Regional Director for Region 4.
At the outset of the hearing , Respondent interposed what it termed "several basic
objections" to the entire proceeding . The first objection was directed at an alleged
system and procedure whereby unfair labor practice matters are heard by Trial Exam-
iners who , when not hearing cases under Section 10(b) of the Act, may be engaged
on the General Counsel 's staff in the prosecution of such cases. A second aspect of
his first objection opposed the system whereby, allegedly , the General Counsel appoints
the Trial Examiner who hears the particular cases. After explanation on the record
by the Trial Examiner , Respondent did not press either aspect of this first objection.
Respondent 's second objection was based on the refusal of the General Counsel to
issue a complaint against the Employer against whom the Respondent Union's dis-
criminatory actions were allegedly directed , the contention being that the General
Counsel's failure and refusal to proceed against the Employer under Section 8(a) (3 )
should preclude him from proceeding against the Union under Section 8 (b)(2).
The Trial Examiner rejected this position , holding that the refusal of the General
Counsel to issue a complaint in Case No . 4-CA-2976 (wherein charges were filed by
or on behalf of the Charging Parties herein naming the Employer as Respondent)
was no bar to prosecution of the complaint in the instant case.
Subsequent to the close of the hearing , briefs were filed on behalf of the General
Counsel and the Respondent and have been fully considered . Upon the entire record
herein and on the basis of my observation of the witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Ralph A. Marino, hereinafter sometimes called Marino , a sole proprietorship with
its principal office at Pittsburgh , Pennsylvania , is a contractor engaged in installation
of sewer and water lines and concededly engaged in commerce within the meaning of
Section 2 ( 6) and ( 7) of the Act During the year preceding issuance of the com-
plaint, Marino caused to be delivered to its projects within Pennsylvania , goods valued
in excess of $50,000 and transported to such projects directly from sources outside
Pennsylvania . The issues herein grow out of Marino's work on a sewer subcontract
calling for installation of some 10 miles of sewers in Gilbertsville , Pennsylvania, at
a cost of some $450,000. The operations of Marino at the project here involved are
conceded to affect commerce within the purview of the Act.
II. THE RESPONDENT AS A LABOR ORGANIZATION
The pleadings and the evidence establish , and I find, that Local 542, International
Union of Operating Engineers , AFL-CIO, is a labor organization within the purview
of Sections 2(5) and 8 ( b) and ( f) of the Act.
IN. THE UNFAIR LABOR PRACTICES
A. Introduction to the issues
This case presents the question as to whether Local 542 caused Marino to dis-
criminate against the Charging Parties, Scariot and Sella, thereby encouraging mem-
bership in Local 542. Scariot and Sella had been employed steadily for several years
by Marino . They were members of Local 66 , I.U.O.E., whose jurisdiction covers the
Pittsburgh area, Marino's home base of operations . Together with two other Marino
employees , Gittins and Aacchione , they were brought by Marino to work on a sewer
construction project in Gilbertsville , Pennsylvania , in the territorial jurisdiction of
Local 542. After some 10 days ' work on the project , which was performed by Marino
on a subcontract from the main contractor , George Tripp , Inc., and The Boam Com-
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pany,i they were terminated by Marino when Local 542's officials threatened to shut
him down if they continued work.
The General Counsel contends that the evidence shows that Local 542 caused
Marino to discharge Scariot and Sella because they were not cleared for work on the
job by Local 542 and that, since there were no union-security or hiring-hall provisions
justifying or requiring their discharge, Local 542 engaged in the unfair labor practice
alleged in the complaint.
The Respondent, Local 542, on the other hand, asserts that the discharge of Scarrot
and Sella was pursuant to the union-security and referral provisions of a collective-
bargaining agreement. This agreement, it is contended, resulted from the general
contractor's (Tripp's) oral agreement with Local 542 following Marino's action in
giving Tripp a letter dated September 1, addressed by Marino to Tripp, and stating
that Marino agreed to abide by the provisions of Local 542's contract, including the
hiring-hall system. The Respondent asserts that Marino thus, by its agent, Tripp,
orally agreed to accept the union-security and hiring-hall provisions covering work
in the area of Local 542's jurisdiction.
B. The circumstances surrounding the discharges
Tripp, a general contractor with headquarters in Pontiac, Michigan, was working
in Easterville, Pennsylvania, in the territorial jurisdiction of Local 542, in the summer
of 1962. At that time Tripp advised representatives of Local 542 that he had a con-
tract for the Gilbertsville project and desired to make arrangements with the Local
for an agreement covering the work. According to the testimony of the Local's busi-
ness representative, O'Donoghue, Tripp assured him that the sewer work would be
subcontracted to Marino only if Marino would operate in accordance with the local
union's agreement. Later Tripp delivered to O'Donoghue the September 1 letter
referred to above.
Marino commenced work on the Gilbertsville project on or about October 29, 1962,
with a four-man crew of his regular employees, all being from Local 66. On or about
November 8, Jerry Leone, business agent of Local 542, came on the job Scariot and
Sella each asked Leone if they were going to be cleared and each was separately told
that Local 542 had men out of work. About this time Leone also talked to Marino
and said that the men had to be cleared; Marino at this time said nothing to Leone
because, as Marino put it, "He let me work there for about 2 weeks, without saying
nothing. These fellows all worked and we never had anything said at all and they
just let them work."
A few days later, on or about November 12, Leone came to Marino and said, "I let
you go this far, but now the fellows are not cleared and I will have to shut down."
Marino did not attempt to operate thereafter but, instead, refused to let his men start
their equipment; on November 15 Marino told Scariot, Sella, and Gittins that they
were not cleared and he could not put them to work. Subsequently, Marino cleared
himself with Leone who supplied replacements for three of the men from Local 66 2
There is no serious doubt but that Local 542 caused Marino to terminate the employ-
ment of Scariot and Sella on the Gilbertsville project, the issue in contention is as to
whether the Respondent Local was entitled to cause the discrimination.
C. Conclusions respecting the discharges
It is the position of Local 542 that it caused the termination of employment on the
part of Scariot and Sella pursuant to the terms of the Local's collective agreement
covering work with union employers in its territorial jurisdiction. The Respondent
further contends that the collective-bargaining agreement became applicable to Marino
when Tripp, armed with Marino's letter of September 1, agreed orally on behalf of
Marino to bind Marino to the terms and conditions of the master agreement. Accord-
ing to the testimony of Business Representative Charles O'Donoghue, he was the one
to whom Tripp delivered the September 1 letter, addressed from Marino to Tripp, and
that Tripp was acting on behalf of Marino. This discussion occurred sometime in
September 1962.
This case does not draw in question the validity under the law of the union-security
and referral provisions of Local 542's agreements covering the area of its geograph-
ical jurisdiction. The question is solely as to whether or not the union-security and
referral provisions are applicable to Marino and the employees brought by him to
1 These firms apparently were engaged in a joint venture of the type frequently en-
countered on major construction projects.
2 One of Marino 's crew, Aacchlone, apparently was cleared to work on the Gilbertsville
project.
LOCAL 542, INT'L OPERATING ENGINEERS, AFL-CIO 503
work on the Gilbertsville project. This in turn depends upon whether or not Marino
by executing the September 1 letter and delivering it to Tripp thereby became party
to an agreement with the Local.
The issues herein are not to be determined by archaic common law considerations
but rather by attention to the basic purposes and policies of the National Labor Rela-
tions Act, as amended. The fundament of the national labor policy is that there shall
be no discrimination in employment on the basis of membership in or approval by a
labor organization. The exceptions to this fundament are set forth in the statute
and, as exceptions, the provisions relating thereto are to be narrowly construed. As
applied to the instant case the sole applicable exception is one relating to situations
in which there exists a collective-bargaining agreement which comports with the
statutory provisions and which covers the employment situation involved in the par-
ticular instance of discrimination. Discrimination must therefore be justified by clear
and unmistakable application of the available exceptions or fall within the law's basic
prohibitions.
While there are indications to the authorities which appear to recognize that the
validity of a union-security agreement is not necessarily impaired by its oral character
(cf. United Fruit Company, 12 NLRB 404; Stei ling Precision Corp., Instrument Divi-
sion, 131 NLRB 1229; N.L.R.B. v. Scientific Nutrition Corporation d/b/a Capolino
Packing Corporation, 180 F. 2d 447 (C.A. 9) ), certainly the evidence establishing the
existence and nature of such an agreement must be clear and convincing in character.
And to hold that the complex and detailed provisions set forth in the union-security
and referral provisions of Local 542's agreements became applicable to Marino in
his work on the Gilbertsville project would require clear and convincing elements of
evidence establishing the assumption of mutual obligations on the part of Local 542
and Marino wherein each intended to be bound to the other on the terms and condi-
tions set forth in the standard agreement.
But the element of mutual intent to be bound to each other, which is the essence
of any legally binding agreement is piecisely what is lacking in the instant case.
There appears to be no doubt but that Tripp and Marino mutually understood that
the sewer contract, to be sublet to Marino, would be performed under conditions con-
formable to the Local 542 agreement; there is also little, if any, doubt that Tripp and
Local 542 had an understanding that the sewer subcontract would be awarded only to
a subcontractor who would work under the union agreement. What is lacking is the
requisite showing of a meeting of minds between Marino and Local 542. It does not
appear from the evidence in this matter that the two ever agreed to be bound to each
other; in other words that they had, at the time of the discharges here involved, a
contiact covering the employment performed on the sewer subcontract. Any agree-
ment between Tripp and Local 542 could not justify discrimination by Marino. Daniel
Hamm Drayage Co., 84 NLRB 458.
The evidence, in fact, quite clearly establishes that Marino at all times up until
Leone's threat to shut him down on or about November 12 intended to work the job
with his own crew independent of membership in or clearance by Local 542. Marino
apparently promised Tripp he would contract with Local 542 but he never did so at
any time prior to November 15.3
I conclude and find that Local 542 caused Marino to terminate the Charging Parties
and that their termination was not justified or required by any agreement between
Marino and Local 542. Thus I find that Local 542 engaged in the unfair labor prac-
tices alleged in the complaint.
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 Marino, 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 findings set forth above that Local 542, International Union of Oper-
ating Engineers , AFL-CIO, has engaged in unfair labor practices defined in Section
8(b)(2) and (1)(A) 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 further recommend that Respondent
notify Marino , in writing , with copies to the Charging Parties, that it has no objection
to employment of Scariot and Sella on the Gilbertsville project. I shall recommend
3 The record suggests that Marino subsequently entered into a written agreement with
Local 542.
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Respondent make Scariot and Sella whole for loss of earnings suffered as a result
of the discrimination against them , by payment of a sum of money equal to what
they would have earned on the Gilbertsville project between November 15, 1962, and
the date 5 days after notification to them as prescribed above, less net earnings during
said period , net earnings to be computed on a quarterly basis as in F. W. Woolworth
Co., 90 NLRB 289, with interest computed as in Isis Plumbing & Heating Co., 138
NLRB 716. I shall recommend that Respondent post at its regular meeting place,
and at the Gilbertsville project if it is still being manned by Respondent's referrals
and Marino is still there engaged , 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 542 , International Union of Operating Engineers , AFL-CIO, is a labor
organization within the meaning of the Act.
2. Ralph A. Marino is an employer engaged in commerce within the meaning of
the Act.
3. By causing Marino to terminate the employment of Scariot and Sella on the
Gilbertsville project on or about November 15, 1962, because they were not members
of or cleared by it, Respondent Local 542 engaged in unfair labor practices defined
in Section 8(b) (2) and (1) (A) of the Act.
4. The aforesaid unfair labor practices affect commerce within the meaning of
Section 8 (6) and (7) of the Act.
[Recommended Order omitted from publication.]
Cramp Shipbuilding & Drydock Company and Thomas J. Jen-
kins, Callistus J. Kelly, George Santoro
Local 329, International Brotherhood of Boilermakers , Iron Ship-
builders, Blacksmiths , Forgers and Helpers of America, AFL-
CIO and Thomas J. Jenkins , Callistus J . Kelly, George Santoro.
Cases Nos. 4-CA-3241, 4-CA-3256, 4-CA-3290, 4-CB-996, 4-
CB-999, and 4-CB-1013. March 10, 1965
DECISION AND ORDER
On November 30, 1964, Trial Examiner Paul Bisgyer issued his
Decision in the above-entitled proceeding, finding that the Respond-
ents had engaged in certain unfair labor practices as alleged in the
complaint and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the attached
Trial Examiner's Decision. Thereafter, the Respondent Union filed
exceptions to the Trial Examiner's Decision and a supporting
brief. The General Counsel filed a brief in support of the Trial
Examiner's Decision and subsequently filed cross-exceptions to the
Trial Examiner 's Decision and a brief in support of these cross-
exceptions and in answer to Respondent Union's exceptions and
brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with these cases to a three-member
panel [Members Fanning , Brown, and Jenkins].
151 NLRB No. 60.