Millwrights Local No. 1699

National Labor Relations Board - Board Decisions

Jun 24, 1966

159 N.L.R.B. 1337 (N.L.R.B. 1966)

MILLWRIGHTS LOCAL NO. 1699. 1337
mated Meat Cutters and Butcher Workmen of North America, AFL-CIO or
any other union, in a manner constituting interference, restraint, or coercion
within Section 8(a)(1) of the Act.
WE WILL NOT in any like manner interfere with, restrain, or coerce employ-
ees in the exercise of their rights under the Act.
All our employees are free to become and remain members of the above Union
of any other labor organization.
HECK'S, INC.
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.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, Room
2023, Federal Office Building, 550 Main Street, Cincinnati, Ohio 45202, Telephone
684-3627.
Millwrights and Machine Erectors ' Local No. 1699, AFL-CIO
( Swinerton and Walberg Company ) and Lysander D. Hamilton.
Case 19-CB-1067. June 24,1966
DECISION AND ORDER
•- On March 15, 1966, Trial Examiner James R. Webster issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, Respondent and the General Counsel filed
exceptions to the Trial Examiner's Decision and supporting briefs.
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 [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, the briefs, and the entire
record in this case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.,
[The Board adopted the Trial Examiner's Recommended Order
with the following modification : Add the following to paragraph
2(a) of the Trial Examiner's Recommended Order, and to the last
paragraph of the notice attached to the Trial Examiner's Decision,
' No backpay is warranted here because the Union advised the Company that it could
hire Hamilton without a referral slip , the Company then offered Hamilton a job, and
Hamilton voluntarily declined it.
159 NLRB No. 81.
1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to read : ". . . , and notify him if presently serving in the Armed
Forces of the United States of his right to this official referral slip
upon application in accordance with the Selective Service Act and
the Universal Military Training and Service Act, as amended, after
discharge from the Armed Forces."]
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
This case ,, with all parties represented , was heard before Trial Examiner James
R. Webster in Richland , Washington , on October 19, 1965, upon a complaint of
the General Counsel and answer of Millwrights and Machine Erectors ' Local No.
1699, AFL-CIO, herein called Respondent . The complaint was issued on July 29,
1965 upon a charge filed June 24, 1965 . The complaint alleges that Respondent
violated Section 8(b)(1)(A ) and (2 ) of the National Labor Relations Act, herein
called the Act, by refusing to dispatch Lysander D. Hamilton for employment with
Swinerton and Walberg Company and thereby causing or attempting to cause said
employer to discriminate against him in violation of Section 8(a)(3) of the Act.
Briefs have been filed by the General Counsel and the Respondent and have
been carefully considered . Upon the entire record and my observation of the
witnesses , I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Swinerton and Walberg Company is , and at , all times material herein has been,
a California corporation with its principal office in San Francisco , California, is
engaged in construction work in the State of Washington , and is a member of the
Inland Empire Chapter of the Associated General Contractors of America, Inc.
Swinerton and Walberg Company has an annual gross income in excess of $50,000
and'annually purchases and receives in the State of Washington goods and supplies
shipped from points outside the State of Washington valued in excess of $50,000.
The Inland Empire Chapter of the Associated General Contractors of America,
Inc., is, and has been at all times material herein , a multiemployer association
whose membership consists of various general contractors and other employers of
millwrights and machine erectors in the States of Washington and Idaho. Said
Association was formed and exists for the purpose , among , others, -of representing
its members in collective bargaining with labor organizations , including Respondent.
The members of said Association in the aggregate course and conduct of their
business operations have an annual gross income exceeding $ 1 million ; annually
purchase goods and supplies from outside the States of Washington and Idaho
valued in excess of $50,000 ; and annually perform services relating to the national
defense for the U . S. Government , which services are valued in excess of $50,000.
I find that Swinerton and Walberg Company and Inland Empire Chapter of the
Associated General Contractors of America, Inc., are employers within the mean-
ing of Section 2 (2) of the Act, engaged in commerce within the meaning of Section
2(6) and ( 7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
I find that Respondent , Millwrights and Machine Erectors ' Local No. 1699,
AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act.
M. THE ALLEGED UNFAIR LABOR PRACTICE
A. Facts and issue
At all times material herein, Swinerton and Walberg Company has been engaged
in the construction of a pulp mill at Wallula, Washington , which project is within
the territorial jurisdiction of Respondent . Respondent is a party to a labor-
management contract with the Inland Empire Chapter of the Associated General
Contractors and with the employer-members thereof , including Swinerton and
Walberg Company. Pursuant to the provisions of this contract , Respondent
MILLWRIGHTS LOCAL NO. 1699 1339
operates a hiring hall, and Swinerton and Walberg Company uses this hiring hall
for referral of millwrights. In the operation of the hall, Respondent maintains in
its office-a list of unemployed workmen, but during the month of June 1965 employ-
ment was plentiful in the territory served by Respondent and all of its members
that wanted work were employed. In fact, Respondent was having difficulty get-
ting enough workmen and was getting additional workmen from other areas.
These out-of-area workmen would either sign the out-of-work list, or leave their
names and addresses and return periodically to the union office.
On the weekend preceding Monday, June 21 , 1965 , Lysander Hamilton, the
Charging Party, arrived in the Wallula, Washington, area for the purpose of seek-
ing employment as a millwright with Swinerton and Walberg Company. Hamil-
ton's residence is in Arcadia, California, and he has not worked within the past
year for any employer within the area served by Respondent or covered by the
Inland Empire Chapter's labor-management contract. , He was last employed on
a project by Swinerton and Walberg Company in about 1961 in California.
On Monday morning, June 21, 1965, Hamilton went by the offices of Respondent
and was informed by a secretary that they did not need any millwrights and that
the pulpmill job was at its peak and that no employment was available. He did
not register on the out-of-work list. The next day he went to the pulpmill con-
struction site of Swinerton and Walberg Company and was told by Job Superin-
tendent William Rich that he needed millwrights. Hamilton obtained from Rich
a handwritten request for his referral as follows:
Mr. Larry King, B.A. 6-22-65
I am still short of men from my last order. Will you please clear Mr. L. O.
Hamilton to me this date . Thanks.
Fraternally yours,
(S) William E. Rich.
Hamilton then proceeded to the union hall of Respondent, and as he arrived
in the office of Lawrence R. King, business representative of Respondent, he heard
King tell two other persons that there were no millwright jobs available with
Swinerton and Walberg Company and he took their names for possible referral
in the future. Hamilton testified that he had heard that King was difficult to deal
with. He became upset in hearing King tell these two men that no jobs were avail-
able when he had just talked to the job superintendent and had been, told that
millwrights were needed. In the presence of the two other men he told King that
he wanted to go to work at the pulpmill. King replied, "I just got through telling
these fellows here that I didn't need any millwrights." Hamilton "got a little
perturbed" and stated, "I know from the superintendent and all that they do
need men. These two fellows here should be' going to work." Hamilton handed
or displayed to'King the note from' Rich and stated that he had been told there
was a standing call' for millwrights. King "was getting warm under the collar"
and told Hamilton that he "didn't give a damn who told him we had a standing
call for millwrights, we had never had a standing call for millwrights from Swiner-
ton and Walberg." Hamilton stated that if King did not give him a dispatch, he
was going to bring charges against him. King replied that he did not care and that
"if you want to go to work at the pulp mill, you get right on down there and go
to work, but I am not going to give you a dispatch slip."
Hamilton went back to the jobsite and talked with Superintendent Rich. Rich
then called King on the telephone. There was a misunderstanding between these
two men as to the Company's need for additional millwrights. King thought that
the requisition for millwrights previously received had been filled. Rich then
requested 11 more millwrights and asked about Hamilton. King replied that he
would not dispatch or give a referral to Hamilton, that Hamilton had made his
own problem and he would have to settle it, and that if the Company wanted to,
it could go ahead and hire Hamilton. Rich then checked with the Company's
home office and was advised to offer employment to Hamilton, which he did. Ham-
ilton considered the matter and returned to the jobsite in the afternoon and told
Rich that he would decline employment.
Hamilton, who had been a member of the Union for 10 years and had occupied
at one time the position of job steward, was fearful that if he worked without the
official referral slip from the Union, the Union might institute proceedings against
him resulting in the loss of his union book for a period of time. He based this
opinion on a prior experience, when he worked on a project without obtaining- a
referral slip from a local millwright union; he testified that on' that' occasion' his
union book was taken from him for a period of time.
1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the request made by Superintendent Rich for additional millwrights
during this conversation with Business Representative King on June 22, 1965,
Respondent on June 24, 1965, dispatched the two jobseekers who had been present
in the office when King had his conversation with Hamilton. Hamilton went back
to the union hall the latter part of that week (about June 23 or 24) but Business
Representative King was not in. He then filed the charge herein on June 24, 1965.1
The issue in this case is as follows: Although Swinerton and Walberg Company
offered Hamilton employment without the usual official referral slip from Respond-
ent, nevertheless did Respondent, by its refusal to give Hamilton an official referral
slip as is customary, thereby attempt to cause Swinerton and Walberg Company
to discriminate against him, and did Respondent, by this conduct, thereby violate
Section 8(b)(2) of the Act.
B. Conclusions
The established procedure followed by Respondent in the operation of its hiring
hall, pursuant to its contract with the Inland Empire Chapter of the Associated
General Contractors, is to issue an "official referral slip" in duplicate to each mill-
wright referred for employment. King testified that men going to a job from
Respondent must bear an official referral slip to be in compliance with the hiring
procedure and practice. One of the slips is presented to the employer and the
other to the job steward. A third copy is retained by Respondent. A referral
slip is either given to the employee prior to his reporting for work or it is dis-
patched or delivered at a later date, as where the entire referral procedure has
been handled by telephone. In exceptional situations, as where the job lasts for
only 1 day or a short time, no written referral is actually issued.
All millwrights are obtained through the hiring hall of the Union and when
local millwrights are exhausted, the Union seeks employees from other areas. At
the time involved, June 22, 1965, all local millwrights who wanted employment
were employed, and to fill the Company's requisition for 11 additional millwrights,
Respondent needed additional qualified men. There is no dispute as to Hamilton's
qualification due to his experience in the field and his membership in the Union.
The two other millwrights who sought employment on June 22, 1965, were referred
to Swinerton and Walberg on June 24, 1965. Because of Hamilton's remarks to
King at the union hall on the morning of June 22, King stated that he would not
give a referral slip to Hamilton. Although King told Rich that the Company
could go'ahead and employ Hamilton, Superintendent Rich was concerned as to
whether he should do so in the absence of the customary referral slip, but on advice
from his home office, employment was offered to Hamilton.
This is a situation where a misunderstanding between two persons caused each
to say and do things that were unnecessary and improper. On the morning of
June 22, King honestly was of the opinion that there was no current need for
additional millwrights on the project of Swinerton and Walberg. Since Respondent
operated a hiring hall for referral of millwrights to this project, it was King's need
and responsibility to know the situation and to refer qualified millwrights to meet
requisitions from this company. Hamilton, having just come from the project
site, knew that additional millwrights were in fact needed, and he believed King
to be derelict in his duties in not knowing this situation. He confronted King with
his error before other jobseekers and did so in a perturbed manner. King was
embarrassed and angered by the accusation, and retaliated by telling Hamilton, and
Rich at a later hour that day, that he would not issue an official referral slip to
Hamilton.
In Local 694, United Brotherhood of Carpenters (Jervis B. Webb Company),
133 NLRB 53, cited by Respondent, the Board found that the union involved did
not violate the Act by refusing to give an applicant a referral slip, but this holding
was based on a finding that referrals were not required in all cases; and in the
absence of more direct evidence of the referral procedure and practice, this finding
was predicated on evidence that the employer involved offered work to the appli-
cants although they had no referral slips. A similar fact deduction is not war-
ranted in the instant case as the referral procedure and practice were thoroughly
litigated and show that referral slips were required by the procedure and practice,
with an exception being allowed for work of short duration. King, because of
Hamilton's insinuations and conduct at the union office on June 22, refused to
follow the referral procedure as to Hamilton. Although he told Hamilton and
i The referral slips issued on June 23 , 24, and 25 were signed on King's behalf by a
person who initialed the signature with "dw."
MILLWRIGHTS LOCAL NO. 1699 -1 1341
Rich that the Company could go ahead and hire Hamilton; at.•most this would
be an effort on his part to make an exception to the established .referral procedure
in Hamilton's case, and' not a following of it. It is questionable, that he had the
authority to vary the procedure in this manner. Both the Company and Hamilton
ran the risk of the consequences of being a party to a violation of the established
referral procedure, if King's statement were followed. The Company after con-
sultation with its home ' office decided to offer employment to Hamilton because
of a prior experience declined to be a party to a departure' from the established
and correct referral procedure.
Although King did not cause the Company to discriminate against Hamilton by
refusing to employ-him, I find that he did "attempt to cause" Swinerton and Wal-
berg to refuse to employ Hamilton by his refusal to adhere to the, established, referral
procedure as to Hamilton, and by this conduct Respondent violated Section 8(b) (2)
of the Act. By attempting to cause Swinerton and Walberg Company to discrim-
inate against Hamilton, the Respondent also has restrained and coerced Hamilton
and the employees of-Swinerton and_Walberg Company,in the exercise-of rights
guaranteed by Section 7 of the Act, and has. thereby violated Section 8 (b) (1) (A)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in' section ' III, above, occurring in
connection with the operation of the employers named above in-section- I, 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 com-
merce and the free flow of commerce.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW - -
1 Swinerton and Walberg Company and Inland Empire Chapter of the Asso-
ciated General Contractors of America, Inc., are I employers within the 'meaning
of Section 2(2) of the Act and aie engaged in comrnei•ce-or in an industry affecting
commerce within the meaning of Section 2(6), and (7) of the Act.
2. Millwrights and Machine Erectors' Local * No 1699, AFL=CIO; is` a labor
organization within the meaning' of Section ; 2 (5 ) ' of the Act:`
3. By' attempting to cause Swinertoi and Walberg' Company' to discriminate
against Lysander D Hamilton in violation of Section 8(a)(3) of the Act, Respond-
ent has engaged in an unfair labor practice within the meaning of Section 8 (b) (1)
(A) and (2) of the Act.
4. The aforesaid unfair labor practice is an unfair labor practice affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY -
Having found that Respondent has engaged in activities violative of Section 8(b)
(1) (A) and (2) of the Act, I shall recommend that it cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the Act.
Having found that Swinerton and Walberg Company offered employment to
Hamilton on June 22, 1965, which he voluntarily refused, therefore, and in con-
sideration of the circumstances of the case, no back pay shall be recommended.
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in this case, it is recommended that the Board, pursuant to Section
10(c) of the Act, issue the following:
RECOMMENDED ORDER
Millwright and Machine Erectors' Local No. 1699, AFL-CIO, its officer, repre-
sentatives, and agents, shall
1 Cease and desist from:
(a) Causing or attempting to cause Swinerton and Walberg Company, or any
other employer engaged in commerce within the meaning of the Act, to deny
employment to, or in any other manner to discriminate against, Lysander D. Ham-
ilton in violation of Section 8(a)(3) of the Act.
(b) Refusing to issue to Lysander D. Hamilton an official referral slip in accord-
ance with Respondent's hiring hall procedure and practice.
1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) In any like or related manner , restraining or coercing employees. in the
exercise of rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Upon request, issue to Lysander D. Hamilton an official referral slip in
accordance with Resspondent's hiring hall procedure and practice for employment
in a position of millwright if available within its territorial jurisdiction. ,
(b) Post at its offices, meeting halls, and hiring halls, copies of the attached
notice marked "Appendix." 2 Copies of said notice to be furnished by the Regional
Director for Region 19, shall, after being duly signed by a representative of the
Respondent, be posted immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places, including all places where
notices to members are customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered, defaced, or covered by any,
other material.
(c) Sign and forthwith return sufficient copies of, said notice to the Regional
Director for Region 19 for posting by Swinerton.and, Walberg, Company, if said
employer is willing, at its business offices and construction site at Wallula, Wash-
ington, in places where notices to its employees are customarily posted.
(d) Notify the Regional Director for Region 19, in writing, within 20 days from
the date of the receipt of this Decision, what steps the Respondent has taken to
comply herewith .3
IT IS FURTHER RECOMMENDED that unless on or before 20 days from the date of
receipt of this Decision the Respondent notify said Regional Director, in writing,
that it will comply with the terms thereof, the Board issue an order requiring it to
take such action.
2In the event that this Recommended Order is 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 . In the further event that the Board's Order Is enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision
and Order."
31n the event that this Recommended Order is adopted by the Board , this provision
shall be modified to read : "Notify the Regional Director for Region 19, 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 OF MILLWRIGHTS AND MACHINE ERECTORS'
LOCAL No. 1699, AFL-CIO
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT cause or attempt to cause Swinerton and Walberg Company,
or any other employer engaged in commerce within the meaning of the
National Labor Relations Act, to deny employment to, or in any other man-
ner to discriminate against, Lysander D. Hamilton in violation of Section
8(a)(3) of the National Labor Relations Act.
WE WILL NOT refuse to issue to Lysander D. Hamilton an official referral
slip in accordance with our hiring hall procedures and practices.
WE WILL NOT, in any other like or related manner, restrain or coerce
employees in the exercise of rights guaranteed in Section 7 of the National
Labor Relations Act.
WE WILL, upon request, issue to Lysander D. Hamilton an official referral
slip in accordance with our hiring hall procedure and practice for employment
in a position of millwright if available within our territorial jurisdiction.
MILLWRIGHTS AND MACHINE ERECTORS' LOCAL No. 1699,
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.
GLAZIERS & GLASSWORKERS LOCAL UNION NO. 513 1343
If members have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 327
Logan Building, 500 Union Street, Seattle, Washington 98101, Telephone 583-
4583.
Glaziers & Glassworkers Local Union No. 513, affiliated with
Brotherhood of Painters , Decorators and Paperhangers of
America, AFL-CIO and Miscellaneous Drivers and Helpers
Union, Local No. 610, affiliated with International Brotherhood
of Teamsters , Chauffeurs, Warehousemen & Helpers of Amer-
ica and Pittsburgh Plate Glass Company . Case 14-CD-220.
June 24, 1966
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the National Labor
Relations Act, as amended, following the filing of charges under
Section 8(b) (4) (D) of the Act by Miscellaneous Drivers and Help-
ers Union, Local No. 610, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers of Amer-
ica (herein called Local No. 610 or the Teamsters), alleging that
Glaziers & Glassworkers Local Union No. 513, affiliated with Broth-
erhood of Painters, Decorators and Paperhangers of America, AFL-
CIO (herein called Glaziers or Respondent), had threatened to cease
work in order to force or require Pittsburgh Plate Glass Company
(herein called Employer) to assign the disputed work to members
of the Respondent rather than to employees represented by the
Teamsters. A hearing was held before Hearing Officer Philip L.
Curd on April 14, 1966. All parties who appeared at the hearing
were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to adduce evidence bearing upon the issues.
The rulings of the Hearing Officer made at the hearing are free
from prejudicial error and are hereby affirmed. A brief was filed
by the Teamsters and has been duly considered.
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 [Members Fanning, Brown, and Zagoria].
Upon the entire record in the case, the Board makes the following
findings :
I. THE BUSINESS OF THE EMPLOYER
The parties stipulated as follows: Pittsburgh Plate Glass Com-
pany is a corporation chartered under the laws of Pennsylvania and
engaged in the business of manufacturing and distributing glass
products, paint products, and related products. During calendar
159 NLRB No. 85.