Local 825, Operating Engineers

National Labor Relations Board - Board Decisions

Dec 7, 1970

187 N.L.R.B. 50 (N.L.R.B. 1970)

50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 825 , International Union of Operating Engi-
neers, AFL-CIO, and Daniel F. Flynn and Associ-
ated General Contractors of New Jersey, Party to
the Contract . Case 22-CB-1612
December 7, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On June 23, 1970, Trial Examiner Lloyd S.
Greenidge issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in any unfair labor practices in violation of
the National Labor Relations Act, as amended, as
alleged in the complaint, and recommending that the
complaint be dismissed in its entirety. Thereafter, the
General Counsel filed exceptions to the Trial Examin-
er's Decision and a supporting 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 this case to a three-member
panel.
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 hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LLOYD S . GREENIDGE , Trial Examiner : This proceeding,
with all parties represented , was heard on April 29 and May
5, 1970 , at Newark , New Jersey , on the complaint of the
General Counsel issued on February 20, 1970 ,1 and answer
of Local 825 , International Union of Operating Engineers,
AFL-CIO, herein called the Respondent or Union . In issue
is the question whether the Respondent , in violation of
Section 8(bxl)(A) and (2) of the National Labor Relations
Act, as amended , herein called the Act, failed and refused
I The complaint is based on a charge filed on January 5, 1970, a copy of
which was duly served on the Respondent by registered mail on the same
day
2 Unless otherwise indicated, the findings in this section are based on
exhibits and credited testimony which is either admitted or undisputed
3 Although the expiration date of the contract is June 30, 1968 (before
to refer Daniel F. Flynn for employment by employer-
members of Associated General Contractors of New Jersey
or other employers because he had announced his
candidacy for president-business manager of the Respon-
dent. Briefs were received from the General Counsel and
the Respondent.
Upon the entire record, and from my observation of the
demeanor of the witnesses, and with due consideration
being given to the arguments advanced by the parties, I
make the following:
FINDINGS OF FACT
1. JURISDICTION
At all material times, Respondent has been a party to a
collective-bargaining contract with Associated General
Contractors of New Jersey (AGC), consisting of employers
providing and performing building and construction
services valued in excess of $50,000 in interstate commerce.
It is stipulated, and I find, that AGC is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted , and I find , that the Respondent is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence 2
1. Respondent's hiring hall
In accordance with the terms of Respondent's collective-
bargaining contract with AGC and other employers,3 the
Respondent maintains a nondiscriminatory exclusive hiring
hall for the referral of engineers, apprentice engineers,
firemen, or maintenance engineers . Under this hiring
arrangement or practice, employers are required to direct
all manpower requests to the Union and the Union, in turn,
is obligated to refer job applicants on a nondiscriminatory
basis. A listing of referral considerations depending on the
applicant's employment history with the contracting
employers, qualifications, age, and residence is set forth in
article I of the contract.
It was stipulated and agreed that, at all material times, the
foregoing referral provisions governed the hiring of
employees in the engineer trade by employer members of
AGC. The unfair labor practice charge herein arose out of
Respondent's refusal to refer Daniel F. Flynn for
employment under the circumstances detailed below.
2. The refusal to refer Flynn
Flynn, a crane operator, has been a member of
Respondent since about 1942 and , from that year until
the events here in issue ), the contract provides that it "shall continue in
force and effect automatically from year to year thereafter unless either
party serves notice of termination sixty (60) days prior to the expiration
date " All parties stipulated that the hiring hall provision contained therein
was operative at all times material
187 NLRB No. 6
LOCAL 825, OPERATING ENGINEERS 51
1955, used the facilities of Respondent's hiring hall for job
referrals without incident. In 1955, Flynn started a crane
rental business known as Colonial Equipment Company
but, 8 years later, the company went out of business.
Shortly thereafter, Flynn returned to the hiring hall and was
routinely dispatched to available jobs. In 1961, Flynn
began another crane rental venture, this time under the
name of Oscar Leasing, Inc.4 Oscar Leasing continued in
business until June 1969 when it, too, ceased operations, the
consequences of which are here in dispute.
About mid-July 1969,5 Flynn telephoned the hiring hall,
advised one Robert McKay that he was looking for
employment, and requested that his name be placed on the
out-of-work list. McKay told Flynn that he would have to
see Peter W. Weber, Respondent's president and business
manager, before he (McKay) could put his name on the list.
About 1 week later, Flynn again called the hiring hall and
once more requested that his name be added to the list. Like
before, McKay told him this could not be done but gave no
reason or explanation for his refusal to comply with the
request .6
On August 28, 1969, Flynn sent two letters to the Union,
copies of each to Peter W. Weber and others. In one, he
stated:
I, Daniel F. Flynn, am a paid up member of Local
825A, book register number 345129, classification of
engineer, dated, January 5, 1942. On July 28, 1969 I
requested that my name be included on the out of work
list and was informed on August 5, 1969 that my name
would not be put on the list for out of work members. I
now take this opportunity of making the foregoing facts
a matter of record.
In the other, Flynn advised:
I, Daniel F. Flynn, am a member of Local 825A, 4
Fleming Avenue, Newark, N.J., book register number
345129, dated January 5, 1942.
I take this opportunity to state I will be a candidate
for the office of President- Business Manager of Local
825A, B and C at the next election of that same local.
There is no evidence of a response to either communication
although receipt of both was acknowledged.
Sometime in September, Flynn appeared in the Board's
Regional Office for the purpose of filing a charge against
the Union. In the course of an interview with a Board
agent, someone called the Union's office and Flynn talked
to McKay. Shortly thereafter, Flynn went to the hiring hall
and filled out a registration card provided by McKay.
At a membership meeting in October, Flynn informed
the group of the letter to the Union in which he had
announced his candidacy for office. Later during the
meeting, President Weber told Flynn that it is a policy of
4 Flynn holds the title of vice president in this company.
5 Unless otherwise stated, all dates hereinafter are in 1969.
8 Respondent objected to the introduction of statements attributed to
McKay on the ground that he was not shown to be an agent of the
Respondent whose statements are binding on it. Flynn testified, credibly
and without contradiction, that he has known McKay for 15 to 18 years;
that McKay is responsible for dispatching applicants to jobs; and that,
while in business for himself from 1961 to 1969, he had obtained more than
100 employees on referrals from McKay. McKay was not called as a
witness and the failure to call him was not explained. In dispatching or
refusing to dispatch job applicants, McKay is acting within the scope of his
apparent authority. Further, since he has performed these duties for a
the Union not to refer contractors and, for this reason, the
Union would not refer Flynn. The Union's position was
restated to Flynn at union meetings in November and
December.? It does not appear that, at any of the meetings,
Flynn challenged the asserted reason for the refusal to refer
him.
On February 11, the Union sent Flynn a letter which read
as follows:
With respect to your recent application to utilize the
services of the Local Union's Hiring Hall, please be
advised that the records of the Local Union establish
that you have been engaged in the contracting business
for several years and have not utilized our services
during the period of time.
In order to bring our records up to date on your
present status and to consider your application
properly, it is requested that you bring to the attention
of the Executive Board, all information pertinent to
your present status. As you are aware, persons who are
contractors have not, under well established Local
Union policy, been permitted to utilize the services of
the Local Union, more particularly the referral system.
However, if a bona fide employee, the Local Union,
consistent with its obligations under Law, has main-
tained and will maintain a referral system for their use.
The next meeting of the Executive Board is
scheduled to take place on Friday, February 13, 1970 at
1:30 PM at the Union's Welfare Offices at 1100
McCarter Highway, Newark, N.J. In order to permit
you the opportunity to attend that meeting, if you so
desire, this letter is being sent Special Delivery to
expedite its receipt.
If you are unable to appear, or present your position
to the Executive Board by that time, the next regularly
scheduled meeting of the Executive Board will take
place sometime in the second week of March, 1970.
Flynn accepted the invitation and appeared before the
executive board on February 13. During the meeting, John
Yanuzzi, the Union's vice president, asked Flynn whether
he was still in the contracting business and he replied in the
negative. After this, Jack Pierson, a business agent and
member of the executive board, queried Flynn as to the
current status of his company and Flynn retorted,
according to Flynn, that it was defunct but had not been
dissolved. Yanuzzi recalled Flynn's response to be that he
was not sure that the company had been dissolved. About
this point someone inquired whether Flynn had any
equipment and he said no. Flynn explained at the hearing
that the equipment was repossessed in the spring of 1969,
apparently, for nonpayment of the notes thereon. The
number of years, members and applicants alike have reasonable cause to
believe that he, in fact, possesses authority to act for the Respondent in this
manner . Accordingly, overruling the objection , I find that, at all material
times , McKay has been and is an agent of the Respondent within the
meaning of Sec. 2(13) of the Act. See Local 825, International Brotherhood
of Operating Engineers, AFL-CIO (Carleton Brothers Company), 131 NLRB
452, 457, In. 4.
r Flynn was employed as an ironworker from mid-August until about
October 13 when he sustained an injury to his right leg . Since December,
he has collected unemployment insurance and has filed a claim for
workmen's compensation.
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
executive board deliberated for a while and then someone
told Flynn that he would be notified of its decision.
By letter dated February 17, the Union advised Flynn as
follows:
The Executive Board has reviewed your position
concerning your present status and has concluded that,
based upon all the evidence submitted to it both by you
and by its investigation, that you are still in the
Contracting business.
At the hearing, Flynn admitted that Oscar Leasing has
not been dissolved under the laws of the State of New
Jersey and that, during the period from July 1969 until early
1970, checks were written against the account of the
company.8 Further, he acknowledged that Oscar Leasing
has a 3-year collective agreement with the Union which is
still in effect.
Section 5, article 1 , of the collective-bargaining contract
under discussion affords "any workman on the employ-
ment list ," aggrieved by an exclusion from a job referral,
the right to appeal the exclusion to ajoint board. Accepting
for the purpose of discussion only Flynn's contention that
as a member of the Union he was entitled to a referral
under the terms of the contract, admittedly Flynn did not
seek a review of the executive board's decision by an appeal
to the joint board.
3. Concluding findings
Under settled authority, a union which undertakes to
operate an exclusive hiring hall established by contract or
other arrangement violates Section 8(b)(2) and (1)(A) of the
Act if it refuses to refer a job applicant for employment for
reasons related to his union or concerted activities. Local
357, International Brotherhood of Teamsters (Los Angeles-
Seattle Motor Express) v. N.L.R.B., 365 U.S. 667; Local 269,
International Brotherhood of Electrical Workers, AFL-CIO
(Mercer County Division, etc., National Electrical Contrac-
tors Association), 149 NLRB 768, enfd. 357 F.2d 51, 55
(C.A. 3); International Brotherhood of Electrical Workers,
Local Union 340, AFL-CIO (Walsh Construction Company),
131 NLRB 260, enfd. 301 F.2d 824 (C.A. 9). It is also well
established that the activities of employees to oust an
incumbent union leader and elect a new officer in a union
election are concerted activities protected by Section 7 of
the Act. Local 138, International Union of Operating
Engineers, AFL-CIO (A. Cestone Co.), 118 NLRB 669,
enfd. 254 F.2d 958 (C.A. 2); Falstaff Brewing Corporation,
128 NLRB 294, 305, enfd. 301 F.2d 216 (C.A. 8).
The complaint alleges , and the answer denies, that, from
on or about September 9, 1969, Respondent failed and
refused to refer Flynn for employment by employer-
members of AGC or other employers because he had
"announced his candidacy for President- Business Manager
of Respondent" and for "other reasons than his failure to
tender periodic dues and initiation fees pursuant to an
agreement in conformity with the provisions of Section
8(a)(3) and 8(f) of the Act." Prior to the hearing,
Respondent moved for a bill of particulars demanding,
inter alia, that it be furnished information with respect to
the "other reasons" alleged in paragraph 15 of the
complaint to have been a basis for the refusal to refer. By
order dated March 12, 1970, Trial Examiner Charles W.
Schneider directed the General Counsel to furnish the
Respondent a statement of the "other reasons ." In response
thereto, the General Counsel, on or about March 13, 1970,
advised the Respondent that "the other reasons" referred to
in the aforementioned paragraph "are presently unknown"
and, at the hearing, he announced that "we do not know or
have any present knowledge of the other reasons." In
essence, then, the General Counsel contends that Respon-
dent's refusal to refer Flynn, as required by the contractual
hiring hall provision, was motivated by its resentment of his
intraunion political activities and that, for this reason,
Respondent violated Section 8(b)(2) and (l)(A) of the Act.
Obviously with this posture of the issue and on this point, it
is unnecessary to show that a job was open at the time
Flynn requested referral for a discrimination may be
inferred where it is clear that the Union's attitude toward
an applicant would make reapplication, when work became
available, a futile gesture . N. L. R. B. v. Local 803, Interna-
tional Brotherhood of Boilermakers, etc. (Harbor Ship
Maintenance Co.), 218 F.2d 299, 302 (C.A. 3); N.L.R.B. v.
The Lumus Company, 210 F.2d 377, 380-381 (C.A. 5). If
Respondent's failure or refusal to refer Flynn was due to
the exercise of protected concerted activities, a violation of
the Act is established.
The record shows that Flynn, a member of long standing
in the Union, actively sought to replace Peter W. Weber as
president-business manager of Local 825. His intention was
first expressed in a letter to the Union dated August 28 and
then voiced at a union meeting in October. It is not without
significance, however, that Flynn announced his candidacy
about 2 years in advance of the time when a vacancy was
due to occur.9 He attributed the timing to a belief that (a)
the next election would be held in August 1970 and it was
necessary to give notice of his intention 6 months in
advance thereof, and (b) the results of the last election are
inconclusive as they are being contested in court. Granted
Flynn was mistaken in his belief about the year of the next
scheduled election, the fact is he made known his bid for
office about 6 months in advance of the date when a
declaration of intent could properly be filed even under his
interpretation of the Union's constitutional requirements.10
Further, reliance on a favorable outcome of a pending
court proceeding is hardly an adequate basis on which to
predicate a present campaign. The inadequacy of the
explanations advanced by Flynn for the timing of the
announcement reflects adversely on the motive for his
action.
Respondent readily acknowledged receipt of the two
aforementioned letters from Flynn, one of which notified
the Union of his candidacy. While it is clear, and I find,
that Peter Weber was aware of Flynn's intraunion political
activities, there is no showing that Flynn incurred Weber's
enmity as a result of such conduct. Indeed, there is no
8 One such check dated July 24, 1969, in an amount of $2,000 and in August 1968.
payable to cash , was endorsed by Flynn. According to Flynn, the money 10 According to Respondent 's attorney , a notice of intent must be filed
represents but a fraction of his total investment in the company. not sooner than 4 months before the date of a scheduled election.
9 Elections are held once every 3 years The last election was conducted
LOCAL 825, OPERATING ENGINEERS 53
evidence that Flynn's activities were ever mentioned by
Weber or any other union official.
Coning now to the crucial question of the alleged failure
and refusal to refer, the General Counsel contends, as
aforestated, that Flynn was discriminated against because
he announced his candidacy on August 28. The fact is,
however, that Flynn was denied a referral before receipt of
the announcement and on two separate occasions-one in
July, the other in early August. That Flynn was denied a
referral is conceded. In defense, Respondent contends that,
at all material times, it was motivated by a reasonable belief
that Flynn was an independent contractor and not an
employee and, therefore, that the rights guaranteed to
employees in Section 7 of the Act were not available to him.
In this regard, Respondent points to the fact that,
intermittently over a period of about 14 years, Flynn has
been engaged in business for himself. Further, it is
contended that, during the 8-year period immediately
preceding his initial request for a referral in July 1969,
Flynn had requested and obtained from the hiring hall
more than 100 workmen for employment in his business
and that, currently, he has a collective agreement with the
Union. Respondent also contends that the invitation to
Flynn to attend the February 11 meeting of the executive
board was a good-faith attempt by the Union to ascertain
his present status in order for it to rule fairly on his
application to use the hiring hall. In explaining the
executive board's decision, Yanuzzi testified that Flynn
should have known whether he was in or out of business
and his uncertainty about his status was a factor in the
decision to apply the Union's policy of not referring
contractors to him.ii Flynn argues, however, that he and
other individuals were referred at times when they operated
as contractors. There is no merit in the argument. As to the
Union's alleged referrals of Flynn, Flynn admitted that he
did not personally appear in the hiring hall during the 8-
year period prior to September 1969, and that the referrals
to which he alludes were no more than instances when the
Union acquiesced in notices from Flynn that he would
perform certain jobs himself on his own equipment. And, as
to the alleged referrals of other contractors, not one was
called to testify nor was the absence of a witness accounted
for.
In view of the foregoing and the record as a whole, I am
led to the conclusion that Respondent's refusal to refer
Flynn was not discriminatorily motivated by the fact that
11 Flynn's assertion that he told the executive board his company had
not been dissolved serves to reinforce its ultimate conclusion
12 Miranda Fuel Company, Inc, 140 NLRB 181, enforcement denied 326
F 2d 172 (C A 2)
13 See Local Union No 18, International Union of Operating Engineers,
AFL-CIO, and its Agent, George E Miller (Ohio Pipe Line Construction
he had announced his candidacy. Quite to the contrary, the
evidence shows that Flynn was denied a referral before he
made known his intention to run for office and that the
announcement itself was greeted with stoic forbearance.
Nor is the evidence sufficient to support a finding that
Flynn was not referred for "unfair or irrelevant or
invidious" reasons within the principles enunciated by the
Board in the Miranda decision.12 The most that can be said
is that Respondent deliberately refused to refer Flynn.
However, the refusal was prompted by an honest and
reasonable belief that Flynn was outside the bargaining
unit and, consequently, that there was no legal obligation to
refer him.13 That Respondent may have been mistaken in
believing that Flynn was still a contractor is not determina-
tive, absent a showing-not present here-that the action
taken against him was arbitrary and without a lawful
purpose.14 As Justice Burton aptly said in Ford Motor Co. v.
Huffman: 15
A wide range of reasonableness must be allowed a
statutory bargaining representative in serving the unit it
represents, subject always to complete good faith and
honesty of purpose in the exercise of its discretion.
In short, I find that the Respondent refused to refer
Flynn from the hiring hall for a legitimate union purpose; 16
namely, a desire to limit referrals to individuals who are
employees under the Act. It follows, and I further find and
conclude, that Respondent did not violate Section
8(b)(1)(A) or (2) of the Act. Accordingly , I shall re-
commend that the complaint be dismissed in its entirety.
CONCLUSIONS OF LAW
1. Associated General Contractors of New Jersey is
engaged in commerce and the Union is a labor organiza-
tion , all within the meaning of the Act.
2. The General Counsel has failed to establish by a
preponderance of the evidence that the Respondent has
engaged in or is engaging in the unfair labor practices
alleged in the complaint.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and
conclusions of law , and on the entire record in the case, I
recommend that the complaint herein be dismissed in its
entirety.
Company) 144 NLRB 1365, 1368.
14 Miranda Fuel Company, Inc, supra
's 345 U S 330, 338
16 Local 357, International Brotherhood of Teamsters (Los Angeles-Seattle
Motor Express) v. N L R .B, supra