Operating Engineers, Local 302

National Labor Relations Board - Board Decisions

Oct 21, 1970

186 N.L.R.B. 21 (N.L.R.B. 1970)

OPERATING ENGINEERS, LOCAL 302 21
International Union of Operating Engineers, Local
302, Affiliated With AFL-CIO and Rex Wyatt.
Case 19-CB-1404
October 21, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
On June 3, 1970, Trial Examiner Leo F. Lightner
issued his Decision in the above-entitled proceeding,
finding that Respondent had not engaged in the
unfair labor practices alleged in the complaint and
recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's
Decision. Thereafter, the General Counsel filed
exceptions to the Trial Examiner's Decision and a
supporting brief, and Respondent filed a brief in
answer thereto.
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 this 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.
'filed by General Counsel and Respondent have been
carefully considered.
Upon the entire record, and from my observation of the
witnesses, I make the following:
FINDINGS AND CONCLUSIONS
I. BUSINESS OF THE EMPLOYER
Mountain Pacific Chapter of the Associated General
Contractors of America, Inc., is, and at all times herein
material, has been an association whose membership
consists of various general contractors and other employers
of operating engineers in the State of Washington.
Mountain Pacific was formed and exists for the purpose,
inter alia, of representing its employer-members in
collective-bargaining with labor organizations, including
Respondent. The employer-members of Mountain Pacific,
in the course and conduct of their business operations
annually realize, in the aggregate, a gross income in excess
of $1,000,000 and purchase goods and supplies from
outside the State of Washington valued in excess of
$50,000, and perform services valued in excess of $50,000
for the United States Government relating to national
defense.
Fiorito Brothers is a State of Washington corporation,
engaged in construction in said State, with its principal
place of business in Seattle, Washington. It has an annual
business involving a gross income in excess of $500,000 and
it imports goods from outside the State of Washington in an
amount in excess of $50,000, and it is an employer-member
of Mountain Pacific, and bound by the terms and
conditions of a contract between Mountain Pacific and
Respondent.
The complaint alleges, the answer admits, and I find that
Mountain Pacific and Fiorito Brothers are each employers
within the meaning of Section 2(2), engaged in commerce,
and in activities affecting commerce, within the meaning of
Section 2(6) and (7) of the Act.
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
LEO F. LIGHTNER, Trial Examiner: This proceeding was
heard before me in Seattle, Washington, on February 17,
1970, on the complaint of General Counsel and the answer
of International Union of Operating Engineers, Local 302,
Affiliated with AFL-CIO, herein referred to as
Respondent.' The complaint alleges violations of Section
8(b)(2) and (1)(A) and Section 2(6) and (7) of the Labor
Management Relations Act, 1947, as amended (61 Stat.
136, 73 Stat. 519, 29 U.S.C. Section 151 et seq.), herein
called the Act. the parties waived oral argument and briefs
1 A charge herein was filed on April 7, 1969. A complaint was issued on
October 24, 1969.
II. RESPONDENT IS A LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find, that
Respondent, at all times material herein, is and has been a
labor organization within the meaning of Section 2(5) of the
Act; and that the jurisdiction extended to it by its
International includes the following described area in the
State of Washington: the counties of Clallam, Jefferson,
Mason, Grays Harbor, Kitsap, Island, San Juan, King,
Snohomish, Skagit, Whatcom, Chelan, Kittitas, and that
portion of Okanogan, Douglas, and Yakima lying west of
the 120th meridian.
III. THE UNFAIR LABOR PRACTICES
The" Issue
The principal issue raised by the pleadings and litigated
at the hearing is whether the Respondent, as more fully set
forth in the complaint , engaged in conduct in contravention
of the provisions of Section 8(b)(2) and (1)(A) of the Act, by
186 NLRB No. 4
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refusing to dispatch Rex Wyatt, as a scraper operator, at the
request of Fiorito Brothers, on or about March 18, 1969,
and thus caused Fiorito Brothers to discriminate against
Rex Wyatt in regard to his hire in violation of Section
8(a)(3) of the Act.
Respondent denied the commission of any unfair labor
practice, and affirmatively asserted that for an applicant to
be eligible to be referred out of order, by reason of prior
employment, such applicant must have worked for such
employer under the specific collective-bargaining agree-
ment and that the Charging Party did not so qualify.
Background
The facts set forth under this section are undisputed.
Effective June 1, 1968, and, by its terms, remaining in
effect until May 31, 1971, a collective-bargaining agree-
ment was entered into between the Mountain Pacific,
Seattle Northwest and Tacoma Chapters of the Associated
General Contractors of America, Inc., and Respondent.
The jurisdiction of the Union set forth, supra, and the
geographical coverage of the agreement are identical.
We are herein concerned with what are referred to as the
"Hiring Hall" provisions, contained in Appendix "A,"
particularly sections 3, 4, and 5.
Section 3 outlines the order of reference, for hiring or
rehiring, from an out-of-work list in the following
sequence : Group 1, operating engineers "who have been
employed by an employer or employers, parties to this
agreement" who have worked 500 hours or more within a
period of 2 years immediately preceding registration date;
Group 2, operating engineers with the same qualifications
but less than 500 hours employment within the 2-year
period; and Group 3, all other applicant operating
engineers.
Section 3 also contains the following definitions:
Employees covered by this Agreement have certain
accrued rights or benefits for themselves and their
dependents under health and welfare and pension plans
which accrue to them by virtue of length of employment
with employers party to this Agreement, and such rights
are generally continuous while under employment and
remain effective until a certain period of time after lay-
off or discharge.
Priority rights mean the right accruing to employees,
as hereafter provided in this Agreement, through length
of service with employers party to this Agreement which
will entitle the operating engineer to a priority or
preference of rehire after termination or lay-off.
The Employer Associations and the Union shall
make up and prepare the roster for preference of rehire
by grouping all operating engineers who come within
the above classifications and shall utilize the health and
welfare and pension records in establishing these
accrued rights based on length of employment.
"Employers" under this paragraph mean, (1) any
employer party to this Agreement, (2) an out-of-town
employer who adopts or works under this Agreement
and contributes to the health and welfare and/or
pension plans , and (3) any employer who employs
operating engineers under the terms of this Agreement
and is a contributing employer, within the meaning of
the health and welfare and pension plans.
Section 4 provides:
Registration or re-registration of applicants for
referral shall be accepted by the Union at any time
during its customary office hours. All applicants shall
be registered in the order of time and date of
registration. To remain on the registration list, an
applicant for referral must renew his registration not
later than ninety (90) days from the date of his last
registration. There shall be three groupings of the out-
of-work list. All operating engineers with accrued rights
shall be registered in either Group I or Group 2, and all
other operating engineers, who are qualified, but
without accrued rights, shall be registered in Group 3.
Each applicant for employment shall be required to
furnish such data, records, names of employers and
length of employment and licenses that may be deemed
necessary, and each applicant shall complete such
forms or registration as shall be submitted to him.
Applicants for employment shall also list any special
skills they may possess.
Section 5 provides, in part:
(e) The referral procedure as contained herein shall
be followed except that, ( I) requests by employers for
key men to act as supervisors, master mechanics or
foremen shall be honored without regard to the
requested man's place on the out-of-work list, (2)
requests by employers for a particular man previously
employed by the employer and who has been layed off
or terminated by the employer within five (5) years
previous to the request shall be honored without regard
to the requested man's place on the out-of-work list.
The same chapters of AGC also have a collective-
bargaining agreement with Local 612, of the same union,
whose geographical jurisdiction encompasses Pierce, Thur-
ston, Lewis, and Pacific Counties, Washington, except for a
portion of Pacific County therein described. The effective
period of this agreement was identical to the period of the
agreement between AGC and Local 302. The agreement
with Local 612 contains provisions identical with those
provisions of the Local 302 contract set forth supra.
Fiorito Brothers is a member of the identified chapters
and is a signatory to both agreements.
Sequence of Events-March 18, 1969, and thereafter
Elmer Warren Jones has been a foreman and job
superintendent for Fiorito Brothers more than 20 years.
Jones was Fiorito Brothers superintendent on an undertak-
ing described as the Nisqually job, located in Thurston
County, in the jurisdiction of Local 612, which the record
indicates was completed approximately in the fall of 1968.
Jones credibly related that, in June or July 1968, he
terminated Rex Wyatt, a scraper operator, (also called a
OPERATING ENGINEERS , LOCAL 302 23
pull operator) Charging Party herein, who had been
employed on the Nisqually job 2
In March 1969 Jones commenced work on what is called
the Yakima job, in the geographical jurisdiction of
Respondent. On March 18, 1969, Jones requested that
David Kellogg, dispatcher in the Yakima office, dispatch
Rex Wyatt. Jones asserted that Kellogg responded that he
could not clear Wyatt as Wyatt did not have "his hours
in." 3
Kellogg, whom I find to be a credible witness, asserted
that Jones made the request while Kellogg was at the
jobsite.4 Kellogg asserted he checked the,' Yakima officelto
see if Wyatt was registered .5 When Kellogg ascertained that
his office had no information about Wyatt he called Seattle,
and was advised by Morris Langberg, secretary of Local
302, that Wyatt had no hours of work in the area of Local
302, and, accordingly, was not eligible for a recall as a
former employee within the meaning of Section 5(e)(2) of
the Appendix, supra.6
General Counsel does not dispute the accuracy of
Respondent's records. However, at the outset of the
hearing, he asserted that the evidence would reflect
discrimination on the part of Respondent in that the
treatment accorded Wyatt was at variance with the
treatment accorded two other employees of the Fiorito
Brothers, identified as Hintz and Bauman . The record
evidence of the employment of Hintz and Bauman is next
set forth.
Superintendent Jones credibly related that Hintz and
Bauman were employed, by Fiorito Brothers, at a job
identified as the Northgate job, which had started in
November 1968, and was within the jurisdiction of Local
302. Thus the transfer to Yakima constituted continuous
employment, and was not a recall or rehiring of either of
these employees.
In 1965 and 1966, Hintz worked under superintendent
Jones, on what Jones identified as the Tukwila job, within
the jurisdiction of Local 302. Hintz then worked, under
Jones, on the Nisqually job, for several years, until it was
completed. Jones then transferred Hintz directly to the
Northgate job, with no break in service. The transfers of
Hintz to and from the geographical areas of Local 302 and
612 did not involve a break in service.
Jones credibly related he transferred Bauman from the
Northgate job to the Yakima job in March 1969. There was
no break in service and both jobs were in the geographical
area of Local 302.7 The first time Bauman worked for Jones
was, inferentially, during the summers of 1967 and 1968 on
the Nisqually job. Jones acknowledged he did not advise
either Local 302 or 612 when Bauman commenced work at
Northgate, in the fall of 1968. Bauman acknowledged there
was a break in service between the Nisqually job and the
2 It appears Wyatt was employed, by Fiorito Brothers , for about one
year.
3 Kellogg asserted that if Wyatt had previously worked for Fiorito
Brothers "in 302s area" he would have been eligible for employment.
4 Wyatt, having asserted that he talked to Jones previously about going
to work, and relating that Jones thought he was cleared to go to work,
recited one effort to obtain clearance , at the union office , on March 18, at
7:30 a.m., when Kellogg refused to issue a dispatch slip. According to
Wyatt, he had a further discussion with Kellogg the following day at the
jobsite , with Detore , a Fiorito partner present . I find the confusion on the
precise date of the union refusal to grant clearance unimportant.
Northgate job. He estimated the length of time as
approximating 1 month . It follows that approval of the
transfer, by Local 302, was neither sought nor obtained.
According to Bauman, John Murphy, a business
representative for Local 302, recognized him while Bauman
was working at Northgate . Murphy knew Bauman from the
latter's work on the Tolt River Dam, where Murphy was
business agent during a period of 3 years in 1961, 1962, and
1963. Bauman asserted he worked in and out of the
geographical area of Local 302 many times during the past
17 years, identifying Olson, inferentially the contractor, at
Enumclaw, in King County , as the individual by whom he
was employed.
There is no evidence that Kellogg, in March 1969, was
advised of the method by which Fiorito Brothers obtained
the services of Bauman in the fall of 1968.
I turn next to the evidence relative to the understanding
of the parties to the contract relative to the meaning of the
provision of section 5(e)(2) of the Appendix.
Melvin Hord is manager of the Mountain Pacific Chapter
of the Associated General Contractors , and has been for 11
years. Hord has been a participant in negotiations between
the Association and Local 302 and, on several occasions,
has been chairman of the negotiating committee. Hord
credibly related that section 5(e)(2) was inserted in the
agreement in 1959 , at the end of an 8 -week strike , during
which the hiring hall clause was the main issue. Hord
asserted that the chapters of AGC, identified supra, have
jointly negotiated with both locals, and in 1963 , as well as in
other years, have sought to obtain one agreement covering
the entire geographical areas of Locals 612 and 302, without
success. One reason advanced by the Unions, as a basis for
their refusal , was their desire to retain local jurisdiction
over hiring . Accordingly, Hord related the practice under
the provisions of section 5(e)(2) has been for employers to
request individuals who have worked for them "in the
territory" or within the jurisdiction of the Local Union
within the previous 5 years.
Russell T . Conlon is business manager of Local 302 and
general vice president of the International . He has been
business manager, the chief executive officer in the local,
for 10 years. He is also chairman of the negotiating
committee of Local 302. Conlon corroborated the assertion
of Hord . He asserted the interpretation of the parties of the
provisions of section 5(e)(2) has been: that a man who has
been previously employed by the employer and who has
been laid off or terminated within 5 years "if he has worked
in our area" is entitled to be called back . The number of
hours the employee may have worked is of no
consequence.8
5 Wyatt does not contend that he registered as unemployed with Local
302, prior to March 24.
6 Langberg, whose duties included the preparation and maintenance of
records of transfers of members from other locals, corroborated Kellogg
relative to their conversation.
° Bauman corroborated Jones.
Dallas Stiegelmeyer has been business manager of Local 612 for 14
months, and has been business representative since January 1, 1960. In
asserting that an employer could not request an individual by name who
had never performed any work in the territorial area of Local 612, within
the meaning of section 5(e)(2), Stiegelmeyer corroborated Conlon and
(Continued)
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUDING FINDINGS
It is undisputed that Respondent operates what is
commonly referred to as a "hiring hall." In the Local 357
cases the Supreme Court held: If hiring halls are to be
subjected to regulation that is less selective and more
pervasive, Congress not the Board is the agency to do it.
The Court held that Section 8(a)(3) does not outlaw all
encouragement or discouragement of membership in labor
organizations; only such as is accomplished by discrimina-
tion is prohibited.'°
Similar to the case at bar, the Supreme Court in Local 357
said. Nothing is inferrible from the present hiring hall
provision except that employer and union alike sought to
route "casual employees" through the union hiring hall and
required a union member who circumvented it to adhere to
it.li
Initially, General Counsel asserted the evidence would
demonstrate that the treatment accorded Wyatt, by
Respondent, was at variance with that accorded Hintz and
Bauman. Obviously, the last two were transferred, from
Northgate to Yakima, as employees of Fiorito Brothers.
In his brief, General Counsel urges that Wyatt was
discriminated against, by Kellogg, in that the treatment
accorded him varied from a presumed failure on the part of
Murphy to inquire into the circumstances surrounding the
hiring of Bauman, by Jones, at Northgate.12 There is no
evidence in this record, that Murphy, or any Local 302
official, was apprised of Bauman's break in employment
Assuming, without finding, that Murphy was negligent in
performing his functions at Northgate, it does not follow
perforce that the action of Kellogg relative to Wyatt was
discriminatorily motivated. Bauman, unlike Wyatt, neither
sought nor obtained a Local 302 clearance Accordingly, I
find no evidence of probative value which would support a
finding that the refusal of Kellogg to dispatch Wyatt, on
March 18, 1969, was discriminatorily motivated.
I turn next to the question of whether section 5(e)(2) of
the collective-bargaining agreement, as interpreted and
applied by the parties, is in derogation of the Act. I have
found that a right of recall by an employer is limited to
employees engaged within the geographical jurisdiction of
the Union.
Respondent correctly urges that Congress, in 1959, added
Section 8(f) to the Act, providing in part:
It shall not be an unfair labor practice under
subsections (a) and (b) of this section for an employer
engaged primarily in the building and construction
industry to make an agreement covering employees
the meaning of section 5(e)(2), Stiegelmeyer corroborated Conlon and
Hord
9 Local 357, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America v N L R B, 357 U S 667, 677
10 Id at 675
11 Id at 676
12 Respondent erroneously asserts that Bauman was moved from
Nisqually to Northgate without a break in service
13 Citing Local Union No 18, International Union of Operating
engaged (or who, upon their employment, will be
engaged) in the building and construction industry with
a labor organization of which building and construction
employees are members . . . because . . . (3) such
agreement requires the employer to notify such labor
organization of opportunities for employment with such
employer, or gives such labor organization an opportu-
nity to refer qualified applicants for such employment,
or (4) such agreement . . . provides for priority in
opportunities for employment based upon length of
service with such employer, in the industry or in the
particular geographical area... .
Respondent urges that a consistent application of a
requirement that a registrant on the out-of-work list have
prior employment within the geographical area covered by
the collective-bargaining agreement between Local 302 and
Mountain Pacific - AGC is not violative of Section
8(b)(1)(A) or (2) of the Act.13 I concur.
Accordingly, absent evidence to sustain a finding of
violation of the provisions of Section 8(b)(1)(A) and (2) of
the Act, I will recommend dismissal of the complaint.
On the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. International Union of Operating Engineers, Local
302, Affiliated with AFL-CIO, is, and has been at all times
material, a labor organization within the meaning of
Section 2(5) of the Act
2. Mountain Pacific Chapter of the Associated General
Contractors of America, Inc., and Fiorito Brothers are, and
each has been at all times material, an employer, engaged
in commerce, within the meaning of Section 2(2), (6), and
(7) of the Act.
3 Respondent has not engaged in conduct constituting
unfair labor practices: (1), within the meaning of Section
8(b)(2), by causing or attempting to cause Fiorito Brothers
to discriminate against Rex Wyatt in regard to his hire, in
violation of Section 8(a)(3); or (2), by restraining or
coercing Rex Wyatt in the exercise of rights guaranteed in
Section 7, in violation of Section 8(b)(1)(A) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and
conclusions of law, I recommend that the complaint be
dismissed in its entirety.
Engineers, AFL-CIO, et al (Ohio Pipe Line Construction Company, et al),
144 N LRB 1365, International Union of Operating Engineers, Local No 98,
AFL-CIO (Consolidated Gas and Service Co), 155 NLRB 850, Local 542,
International Union of Operating Engineers, AFL-CIO (Ralph A Marino,
General Contractor), 151 NLRB 497, Local Union No 337, United
Association of Journeymen and Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada, AFL-CIO (Townsend and Battum,
Inc), 147 NLRB 929, and Pacific Maritime Association, 155 NLRB 1231