Operating Engineers Local 3 (Joy Engineering)

National Labor Relations Board - Board Decisions

Nov 22, 1993

313 N.L.R.B. 25 (N.L.R.B. 1993)

25
313 NLRB No. 17
OPERATING ENGINEERS LOCAL 3 (JOY ENGINEERING)
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
We have corrected the judge’s inadvertent misspelling of the name
of Union Business Agent Pete Cox.
2 The Respondent has excepted, inter alia, to the judge’s finding
that the 1984 agreement between Richard Joy Jr. and the Union was
ambiguous. In adopting the judge’s findings in this regard, we rely
solely on the language of the document itself. Thus, we find that the
provisions in the agreement which state that it shall apply to the em-
ployees of the signatory individual employer are ambiguous when
read in conjunction with the inclusion of the phrase ‘‘owner-opera-
tor’’ in the agreement, and the fact that the agreement was executed
in the name of Richard Joy Jr. (rather than the partnership, Joy Engi-
neering, asserted by the Union to be bound by the agreement) and
contains Joy’s social security number. Because the agreement is am-
biguous on its face, we may properly resort to extrinsic evidence to
determine its meaning. Timberland Packing Corp., 261 NLRB 174,
176 (1982); Gulf Refining & Marketing Co., 238 NLRB 129 fn. 2
(1978). For the reasons stated by the judge, we agree that the cir-
cumstances surrounding the execution of the 1984 agreement indi-
cate that it is applicable only to Richard Joy Jr. individually, and
does not cover employees of Joy Engineering. See Mid-States Con-
struction, 270 NLRB 847 (1984) (employer not bound by collective-
bargaining agreement despite signing assent of participation which
stated employer was bound, where assent form ambiguous, surround-
ing circumstances indicated employer had not agreed to be bound).
3 The judge found that the Respondent violated the Act by de-
manding recognition as the exclusive bargaining representative of the
Employer’s employees at a time when there was no valid collective-
bargaining agreement. Because this finding is not based on any com-
plaint allegation, we shall amend the judge’s conclusions of law,
Order, and notice to reflect the violations actually alleged and estab-
lished in this case.
Operating Engineers, Local Union No. 3, AFL–CIO
and Joy Engineering. Case 32–CB–3899
November 22, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On May 11, 1993, Administrative Law Judge Joan
Wieder issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the Charg-
ing Party filed a brief in response.
The National Labor Relations Board has considered
the decision and record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings,
findings,1 and conclusions2 and to adopt the rec-
ommended Order as modified.3
AMENDED CONCLUSIONS OF LAW
Substitute the following for the judge’s Conclusion
of Law 4.
‘‘4. By attempting to cause Joy Engineering to hire
only employees dispatched through the Union’s hiring
hall, and to discharge employees not so dispatched, in
the absence of a valid collective-bargaining agreement
authorizing such actions, the Respondent has violated
Section 8(b)(1)(A) and (2) of the Act.’’
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below, and orders that the Respondent, Oper-
ating Engineers, Local Union No. 3, AFL–CIO, Reno,
Nevada, its officers, agents, and representatives, shall
take the action set forth in the Order of the administra-
tive law judge, as modified.
1. Substitute the following for paragraph 1(b).
‘‘(b) Attempting to cause Joy Engineering to hire
only employees dispatched through the Respondent’s
hiring hall, or to discharge employees not so dis-
patched, in the absence of a valid collective-bargaining
agreement authorizing such actions.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT restrain or coerce the employees of
Joy Engineering by threatening them with loss of em-
ployment because they have not been dispatched
through our hiring hall.
WE WILL NOT attempt to cause Joy Engineering to
hire only employees dispatched through our hiring hall,
and to discharge employees not so dispatched, in the
absence of a valid collective-bargaining agreement au-
thorizing such actions.
WE WILL NOT in any like or related manner restrain
or coerce employees in the exercise of the rights guar-
anteed them by Section 7 of the National Labor Rela-
tions Act.
WE WILL notify, in writing, Joy Engineering that we
have no objection to its employment of individuals
who have not been dispatched through our hiring hall.
OPERATING ENGINEERS, LOCAL UNION
NO. 3, AFL–CIO
Valerie Hardy-Mahoney, Esq., for the General Counsel.
Lawrence B. Miller, Esq., of Alameda, California, for the
Respondent.
Mark R. Thierman, Esq. (Thierman, Cook, Brown & Prager)
of San Francisco, California, for the Charging Party.
26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1992 unless otherwise indicated.
2 The father and son have the same names, so the partners will be
referred to as Joy Sr. and Joy Jr.
DECISION
STATEMENT OF THE CASE
JOAN WIEDER, Administrative Law Judge. This case was
tried on November 20, 1992, at Reno, Nevada.1 On a charge
filed on April 28, by Joy Engineering (Charging Party or
Employer), which was amended on March 30, a complaint
and notice of hearing was issued on June 30 by the Regional
Director for Region 32 alleging Operating Engineers Local
Union No. 3 of the International Union of Operating Engi-
neers, AFL–CIO (Respondent or Union) committed certain
violations of Section 8(b)(1)(A) and (2) of the National
Labor Relations Act (the Act). The complaint was amended
at hearing.
Respondent’s timely filed answer to the complaint admits
certain allegations, denies others, and denies the commission
of any unfair labor practices.
The parties were given full opportunity to appear and in-
troduce evidence, to examine and cross-examine witnesses,
to argue orally, and to file briefs. Based on the entire record,
from my observation of the demeanor of the witnesses, and
having considered the posthearing briefs, I make the follow-
ing
FINDINGS OF FACT AND CONCLUSIONS
I. JURISDICTION
The parties stipulated Employer Joy Engineering meets
one of the Board’s jurisdictional standards. Accordingly, Re-
spondent admits, and I find, the Employer is engaged in
commerce and in business affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act. Respondent
also admits, and I find, it is a statutory labor organization
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
A. Preliminary Matters
Counsel for General Counsel moved to strike a portion of
Charging Party’s posthearing brief. The gravamen of General
Counsel’s motion is that portion of Charging Party’s brief
which claims the agreement signed by Joy Jr. is a prehire
agreement under Section 8(f) of the Act which was effec-
tively repudiated, should be stricken from consideration for
it exceeds the scope of the allegations in the complaint and
the theory propounded by General Counsel. Respondent
agrees with General Counsel that ‘‘whether the Employer ab-
rogated or repudiated an 8(f) agreement is neither within the
framework of the pleadings nor the issues litigated at hear-
ing.’’
In opposition to General Counsel’s motion, Respondent ar-
gues a central issue is the nature of the agreement signed by
the Union and the Employer. Thus, Charging Party claims its
theory the agreement is a prehire agreement which was effec-
tively repudiated, is within the scope of the issues raised by
the complaint and a party has the right to raise any theory
that will support its arguments. Charging Party further asserts
its theory does not broaden the issues. Charging Party claims
while ‘‘General Counsel is entrusted with the management of
the prosecution of the complaint. . . . Charging Party is not
required to mimic the General Counsel’s brief on all points.’’
I find it unnecessary to grant the motion. I conclude the
merits of the Charging Party’s argument need not be reached
based on the findings and conclusions here. Assuming I find
there was a contract between Respondent and Charging
Party, I further conclude its position is inconsistent with
General Counsel’s position and is beyond the scope of the
complaint. There was no notice to Respondent the issues en-
compassed within the complaint included the issue of wheth-
er the agreement was an 8(f) agreement which was repudi-
ated by Charging Party’s actions. There was no clear oppor-
tunity afforded Respondent to address these positions adopt-
ed by Charging Party in its brief. Charging Party failed to
state explicitly on the record it was going to adopt this posi-
tion. General Counsel’s motion to strike portions of Charging
Party’s brief is denied, however, in considering Charging
Party’s brief, those portions concerning the existence of an
8(f) contract and repudiation of such a contract, are not con-
sidered here.
In view of the lack of clear and fair notice to Respondent
concerning these issues, I conclude Charging Party’s theory
concerning the existence of an 8(f) prehire agreement which
was repudiated should not be considered as encompassed
within the complaint hereunder consideration. See Tyson’s
Foods, 172 NLRB 2008 (1968); Utility Workers v. Consoli-
dated Edison Co., 309 U.S. 261 (1940); Piasecki Aircraft
Corp. v. NLRB, 280 F.2d 575 (3d Cir. 1960), cert. denied
364 U.S. 933 (1961); Sailors Union (Moore Dry Dock), 92
NLRB 547 (1950).
B. Background and Issues
The issues raised in this proceeding are whether the
Charging Party and Respondent entered into a valid collec-
tive-bargaining agreement covering any of its employees;
whether Respondent threatened one of Charging Party’s em-
ployees that it would seek his discharge because the em-
ployee had not been dispatched by Respondent; and whether
Respondent demanded the Charging Party discharge employ-
ees because they had not been dispatched by Respondent.
1. Is Charging Party a signatory to an agreement
with Respondent?
Charging Party is, and has been at all material times, a
California partnership with an office and place of business in
Portola, California, engaged in the construction industry as
an excavation contractor. The partnership was formed in
1980 by Richard L. Joy and his father.2 In 1980, Charging
Party did not have employees, only the partners performed
work. In 1984, Charging Party had two part-time employees
in addition to the partners. Joy Jr. was working alone in An-
tioch for MJM Construction, a firm based in California.
MJM became a signatory to a collective-bargaining agree-
ment with the Union. An official of MJM informed Joy Jr.
if he wanted to retain his employment he ‘‘had to become
an owner-operator.’’
Because Charging Party lived in or around Reno, Nevada,
and knew and trusted the union business agent, Ed Jones, he
telephoned Jones that evening. During this conversation, Joy
27OPERATING ENGINEERS LOCAL 3 (JOY ENGINEERING)
3 The record is silent how the 1984 agreement met the require-
ments of MJM Construction. There is no claim Jones informed Joy
Jr. he would have to join the northern California branch of the
Union.
4 Owner/operators have a health plan that is separate and distinct
from that maintained for the ‘‘normal rank and file.’’
Owner/operators do not have a pension plan. Pete Cocks, an admit-
ted business representative of Respondent, did not know if
owner/operator members could sit on a negotiating committee, al-
though they can, like any member, vote on contracts. Cocks has
been an agent of Respondent’s for about 6 years.
Jr. informed Jones he ‘‘could not afford to have my company
become union, and that I didn’t mind doing it individually,
I had no problems with that.’’ According to Joy Jr., Jones
replied, ‘‘No problem, we can go ahead with that. . . .
When you get home this weekend, go ahead and give me a
call, I’ll meet you, and we’ll take care of it.’’ It is undis-
puted some contractors are required by their collective-bar-
gaining agreement to use ‘‘union owner-operators.’’ It is also
undisputed the 1984 contract would apply only to work per-
formed in northern Nevada.3
When Joy Jr. arrived home that weekend, he arranged to
meet Jones and again ‘‘discussed the situation in Antioch,
and I told him that I wanted to become an owner-operator
but I did not want my firm to become a union firm, and Ed
[Jones] said it was no problem.’’ On or about February 6,
1984, Jones and Joy Sr. executed a standard agreement enti-
tled ‘‘INDEPENDENT Northern Nevada Construction
Agreement.’’ Written on top of the document was the term
‘‘owner-operator.’’ As here pertinent, the agreement defines
the term employee as any person whose work for an em-
ployer is covered by the agreement within the recognized ju-
risdiction of the Union. Paragraph 4 of the agreement pro-
vides: ‘‘This agreement shall cover and apply to all employ-
ees.’’
At the time Joy Jr. executed the agreement, Charging Party
had two part-time employees. Joy Jr. informed Jones about
these employees. Joy Jr. testified, without contradiction:
Q. When you had your conversation with Mr. Jones
in the parking lot in Reno, did you discuss whether or
not the contract that you were signing was covering
these employees.
A. Yes I did. . . . [Jones] told me that it was not,
that it was only for me, and he—I was really concerned
about it, and that’s why I did what I did, because I real-
ly respect him and knew him. I felt very comfortable
with Ed and he assured me that it was not for the com-
pany, that it was for me as an individual.
Jones admitted he could not recall the details of Joy Sr.
signing the 1984 agreement. Jones could not recall specifi-
cally if he ever signed an owner-operator to another agree-
ment after the owner-operator hired employees. Jones was a
union business agent for more than 9 years, severing his em-
ployment relationship with Respondent in 1988 by retiring.
Although Jones exhibited poor recall concerning the events
resulting in Joy Jr. executing the owner-operator agreement,
he appeared to be attempting to respond to questions in an
open and honest manner. I was impressed with his demeanor
which strongly tends to give his testimony credence. Accord-
ingly, I will credit those portions of his testimony where he
indicated he had recall of the subject matter of the question.
There is no doubt Jones had authority to speak for Respond-
ent in this matter.
Jones also explained the advantages of an owner-operator
signing an agreement as follows:
Q. The advantage of being an owner/operator and
signed with the union is that if you own your own
equipment, some of the general contractors are required
to use union owner/operators, right?
A. Yeah.
Q. So it would be important for an individual who
maybe owned a bulldozer or a backhoe to hold a union
card so that he could be on those jobs, right?
A. Yeah.
Q. The owner/operators, do they ever have employ-
ees?
A. Some of them, yeah.
Q. They would sign a regular agreement or they’d
sign as owner/operator?
A. If they’re owner/operator, they’d sign for
owner/operator, and if they’re—as they get bigger, then
they hire more people and things change.
Q. And you’d make them sign a new agreement?
A. Probably.
I conclude Joy Jr. was led to believe by Jones he was
signing as an individual and not as a company representative
for Charging Party. His recitation of events was done with
substantially persuasive detail, giving the strong impression
he was making an honest attempt to accurately recall the
facts. Joy Jr. testified in an open and candid manner. He ap-
peared to be very frank and did not seem to engage in any
dissimilation. The document had Joy Jr.’s social security
number on it and his name, not the Charging Party’s firm
name. Raymond Morgan, respondent district representative
for northern Nevada, admitted the agreements with employ-
ers do not have the employer signatory’s social security num-
ber.
Lending credence to Joy Jr.’s testimony is the fact the
agreement was between Joy Jr. and Respondent, not Joy En-
gineering. Joy Jr. paid his dues and arranged for owner-oper-
ator health coverage.4 From 1984 until 1992, Joy Jr. did con-
tinue to pay union dues and health insurance premiums for
himself only. The employer operated openly as a nonunion
contractor. There is no claim Joy Engineering ever made
contributions to any of the Respondent’s funds for any of its
employees, and there is no claim Charging Party held itself
out as a union employer or paid union wage rates. None of
Charging Party’s employees were dispatched by Respondent
during this period of time.
During the same period of time, 1984–1992, Charging
Party worked on about 41 jobs in Northern Nevada. For
these jobs, which lasted between 4 days to 6 months, Charg-
ing Party hired between one to six employees. Respondent
never contacted Charging Party about its failure to use the
union referral system, failure to pay union wage rates, and
failure to make contributions to Respondent’s health and
welfare and pension funds. Further, there is no correspond-
ence from Respondent to the Charging Party indicating any
28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 George Morgan is the brother of Raymond Morgan, Respond-
ent’s northern Nevada district representative.
6 Respondent, by Raymond Morgan, claimed both contracts ap-
plied to Joy Engineering, despite the communications between the
Charging Party and George Morgan, Raymond’s brother and Re-
spondent’s northern California representative. There is no claim by
Respondent that the northern California portion of the Union oper-
ated under different rules and/or procedures than the northern Ne-
vada Division.
7 Specifically, Raymond Morgan testified:
ADMINISTRATIVE LAW JUDGE: Let’s assume they have a busi-
ness and that they operate under the business name, how would
you have a contract?
THE WITNESS: I would still put it under his name, if he was
an individual working as an owner/operator, and not hiring em-
ployees.
[ADMINISTRATIVE LAW JUDGE]: What if it’s a partnership and
two people working . . . . as a partnership, not as individuals.
changes to contractual rates or advising Joy Engineering of
any obligation to pay contractual rates.
Further buttressing my conclusion Joy Jr. signed the agree-
ment with Respondent with the understanding it was for him-
self, not Joy Engineering, were the actions of Respondent re-
garding Joy Sr. In 1987, George Morgan,5 Respondent’s dis-
trict representative in northern California, spoke to both Joy
Jr. and Joy Sr. at a worksite in Quincy, California. A week
after this conversation, Joy Sr. signed an ‘‘Independent
northern California Construction Agreement’’ on July 8,
1987. This collective-bargaining agreement was in the name
of Richard L. Joy Engineering. The 1987 agreement was
modified and Joy Sr. executed the second agreement on Oc-
tober 12, 1987.
The modification was to have the collective-bargaining
agreement in the name of ‘‘Richard L. Joy, individually as
owner-operator.’’ Respondent admits this October 12, 1987
collective-bargaining agreement applies to Joy Sr. individ-
ually; it affects work only in northern California, not Ne-
vada. The verbiage printed on the October 12, 1987 collec-
tive-bargaining agreement is similar to the agreement Joy Jr.
executed in 1984 which Respondent claims binds Charging
Party and its employees. There is no basis to conclude the
northern California district of Respondent conducts business
differently than the northern Nevada district. Inasmuch as
Jones has been found to have represented to Joy Jr. that
owner-operators’ contracts do not include the Company, I
conclude this has been shown to be a standard operating pro-
cedure of Respondent in both northern California and north-
ern Nevada.
The change in the 1987 collective-bargaining agreement’s
coverage was a result of a letter from an attorney for Joy Sr.
The letter reads:
Pursuant to our telephone conversation of this date,
it is my understanding that you are in agreement that
the existing ‘‘Independent northern California Construc-
tion Agreement between Richard L. Joy Engineering
and Operating Engineers Local Union No. 3 does not
correctly reflect the intention of the parties, and that the
contract will be corrected to reflect the true intent of
the parties. This will show Mr. Joy, individually, as an
owner-operator of a CAT Dozer joining Operating En-
gineers Local Union No. 3. Mr. Joy’s firm, Richard L.
Joy Engineering, is non-union and there was never any
intention of his firm joining the union. [Emphasis
added.]
Please send a new contract showing Richard L. Joy,
individually, joining the union and confirmation that the
current agreement with Richard L. Joy Engineering has
been rescinded.
By the October 1987 agreement, Respondent reflects it has
collective-bargaining agreements with owner-operators that
do not bind their firms. Respondent argues, by the above let-
ter, Charging Party never sought to modify the 1984 collec-
tive-bargaining agreement to cover Joy Jr. only as an individ-
ual and thus it should be bound to cover the employees of
Joy Engineering. I find this argument to be unpersuasive.
Both the 1984 and 1987 collective-bargaining agreements
refer to the individuals signing the agreement on the line for
individual employer as owner-operators. The only difference
between the 1984 contract for Joy Jr. and the 1987 contract
for Joy Sr. is the term ‘‘individually.’’ The use of this term
is not alleged by Respondent to alter the application of the
contract.6 Respondent admits the 1984 agreement executed
by Joy Jr. was designated an owner-operator agreement. Fur-
ther, Respondent, by Raymond Morgan, admits when it en-
ters into a collective-bargaining agreement with partnerships,
it has both partners execute the contract.7 There is no claim
Joy Sr. signed the 1984 agreement.
Moreover, Respondent never contested the claim in the
above-quoted letter that Charging Party ‘‘is nonunion and
there was never any intention of his firm joining the union.’’
This claim reflects and is consistent with Joy Jr.’s under-
standing that when he signed the 1984 agreement, it covered
him individually, not his company. Thus, I conclude Re-
spondent had owner-operator agreements which solely cov-
ered the individual signatory and not their employees. There
is no claim by Respondent that Charging Party had no em-
ployees at the time Joy Sr. signed the agreement in 1987.
Respondent argues the 1984 agreement should be treated
differently than the 1987 agreement, for Charging Party
failed to ask for modification of the 1984 agreement at the
same time it requested alteration of the 1987 agreement. In-
asmuch as Charging Party operated as a nonunion company
since the 1984 agreement was signed, there was no basis
shown for any request to modify its terms; the 1984 agree-
ment was already similar to those changes requested in the
1987 agreement. Another factor controverting Respondent’s
claims is the difference in the treatment by the Union of the
effects of the 1984 and 1987 contracts.
After Joy Jr. signed in 1984, the Union never claimed
Charging Party was a union company, never requested their
employees be dispatched by Respondent, never required the
employees join the Union, never asked that their employees
be paid pursuant to any collective-bargaining agreement,
never requested payment of benefits to any health or pension
funds for employees, and never informed Charging Party of
any changes in benefits pursuant to contracts negotiated after
1984. Finally, neither Respondent nor any of its affiliated
trust funds sent Charging Party report forms for any employ-
ees other than Joy, Sr. and Joy Jr.
In contrast, the day after Joy Sr. signed the contract in
1987, a union representative called Charging Party and in-
formed them they ‘‘were now a union firm, that we would
have to obtain our operators from the hall.’’ It was only after
29OPERATING ENGINEERS LOCAL 3 (JOY ENGINEERING)
8 The following is a summary of Charging Party’s operations in
northern Nevada from 1984 through 1991. In 1984, one job lasting
4–5 months employing one operator. In 1985, Charging Party em-
ployed two operators for 2-1/2 to 3 months. In 1986 it employed two
operators for 2-1/2 or 3 weeks. In 1987, Charging Party had six jobs
employing one to four operators, one job employed four operators
for 6 to 7 weeks, and another job lasted throughout the year and em-
ployed between one to three operators. In 1988, there were nine jobs
employing between one to three operators, with one job having three
operators for 5 months. In 1989, Charging Party had seven jobs, one
using six operators for 3 months and another utilizing four operators
for 3 weeks. In 1990, there were four jobs, one using one to three
operators and lasting throughout the year. In 1991, Charging Party
had five jobs in northern Nevada, one using three operators for 3
weeks and another using two operators for 2 months.
9 Charging Party did not reply to this letter from Respondent.
10 Respondent did not cite any cases in its brief.
this conversation concerning the 1987 agreement that Charg-
ing Party sought modification of the Joy Sr. contract to in-
sure it applied only to Joy Sr. and not Charging Party. The
alterations Respondent agreed to in the agreement were to
make it similar to the 1984 contract by referring to Joy Sr.
as an owner-operator and to delete reference to Joy Engineer-
ing.
If Respondent had considered Charging Party to be a
unionized firm since 1984, then there would have been no
reason to inform them after Joy Sr. executed the 1987 agree-
ment, that only then, in 1987, were they obligated to get em-
ployees through union referrals. Respondent never refuted
Charging Party’s claim in their attorney’s August 6, 1987 let-
ter that ‘‘Richard L. Joy Engineering, is non-union and there
was never any intention of his firm joining the union.’’ The
record is silent concerning whether the northern California
division communicates with the northern Nevada division,
and whether representations made to one division does or
does not bind the other division. Assuming these divisions do
not communicate, there is still an absence of any evidence
they historically treated the owner-operator agreements dif-
ferently.
Respondent indicated it contacted Charging Party in 1992
after it saw Joy Engineering was the successful bidder on the
DRI Research job. The form collective-bargaining agreement
provided for exclusive referral of employees by Respondent
Union. After checking their contract file, Respondent wrote
Charging Party the February 25 letter. There was no claim
Charging Party was not designated as a successful contractor
on other bidders list between 1984 and 1992. Thus, there was
no convincing claim or other probative evidence that Re-
spondent did not know Charging Party employed operators in
northern Nevada between 1984 and 1992. In fact, Pete
Cocks, one of Respondent’s business agents, previously
worked as a foreman on jobs in northern Nevada where
Charging Party was the successful bidder as a subcontractor
in 1986. Cocks also admitted Respondent regularly checks
the bidders sheets.
The clarity and consistency of Charging Party’s under-
standing is depicted by a review of the jobs it performed in
northern Nevada without any adherence to a collective-bar-
gaining agreement covering its employees and without any
claim by the Union these employees and Charging Party
were subject to such an agreement. Respondent did not ex-
pressly aver it had no knowledge of any of Charging Party’s
operations in northern Nevada.8 Raymond Morgan, Respond-
ent’s northern Nevada district representative for the past 6
years, never explicitly and convincingly demonstrated why
the Union waited until February 25, 1992, to inform Charg-
ing Party they were considered a signatory contractor who
had to get their operators from the Union and had to set up
a monthly billing with the Union for their employees fringe
benefits.9 In fact, the owner-operator designation on the
agreement informs the trust funds they should not bill the
employer.
Discussion
Having found Respondent represented to Joy Jr. that
Charging Party’s employees would not be covered under the
1984 agreement, the dispositive question is whether this con-
clusion overrides the written terms of the agreement. General
Counsel cites10 Steelworkers v. American Mfg. Co., 363 U.S.
564, 567 (1960), for the following holding:
In our role of developing a meaningful body of law to
govern the interpretation and enforcement of collective
bargaining agreements, we think special heed should be
given to the context in which collective bargaining
agreements are negotiated and the purpose which they
are intended to serve. See Lewis v. Benedict Coal
Corp., 361 U.S. 459, 468.
General Counsel also cites Auto Workers v. White Motor
Corp., 505 F.2d 1193, 1199 (8th Cir. 1974), cert. denied 421
U.S. 921 (1975), for the following determination:
In interpreting a collective bargaining agreement it is
often necessary to go outside the four corners of the
contract itself and examine the agreement history to as-
certain the intent of the agreement and determine the
rights and duties of the parties.
Both these cases involved the construction and interpreta-
tion of collective-bargaining agreements which contained ar-
bitration clauses. This consideration does not render these
cases inapplicable. In John Wiley & Sons v. Livingston, 376
U.S. 543 (1964), the Court took a substantial departure from
orthodox contract law and found a successor to be subject to
the terms of a collective-bargaining agreement even though
they did not sign or specifically agree to the terms of that
agreement. In NLRB v. C&C Plywood Corp., 385 U.S. 421
(1967), the Court determined the Board had authority to in-
terpret collective-bargaining agreements that do not have ar-
bitration clauses.
As held in Gulf Refining & Marketing Co., 238 NLRB
129, 133 (1978),
Without giving probative weight to the bargaining his-
tory, there can be no effective assurance of the enforce-
ability of the written contract. In NLRB v. Strong Roof-
ing Co., 393 U.S. 357, 361 (1969), the Supreme Court
observed that the Board may ‘‘if necessary to adju-
dicate an unfair labor practice, interpret and give effect
to the terms of a collective bargaining contract,’’ citing
NLRB v. C&C Plywood Corp., 385 U.S. 421 (1967).
30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 Citing Am.Jur.2d., Labor and Labor Relations, § 1208 which
stated:
A collective bargaining agreement is not an ordinary contract
to which apply the principle of law governing contracts. It must
be construed liberally rather than narrowly and technically, and
it must be read as a whole and in the light of the law relating
to it when made . . . .
In order to interpret a collective bargaining agreement, it is
necessary to consider the scope of other related collective bar-
gaining agreements as well as the practice, usage, and custom
pertaining to all such agreements . . . .
The industrial common law—the practices of the industry and
the shop—is equally a part of the collective bargaining agree-
ment, although not expressed in it.
12 Strong Roofing Co., supra, 393 U.S. 357, 361, citing NLRB v.
C&C Plywood Corp., supra, 385 U.S. 421.
13 Steelworkers v. American Mfg. Co., supra at 567.
14 In light of these conclusions, I deem it unnecessary to reach
Charging Party’s argument that the Union’s attempt to enforce the
1984 contract against Joy Engineering is improper for Joy Jr. would
then have to be determined to have been fraudulently induced to
enter into the agreement by Jones’ promises it applied only to him
as an individual. Citing Rozay’s Transfer v. Teamsters Local 208,
850 F.2d 1321 (9th Cir. 1988), cert. denied 490 U.S. 1030 (1989).
I do, however, note the analogy to the Rozay’s case that Joy Jr.
clearly informed Respondent he would never enter into the agree-
ment if it covered Joy Engineering and its employees rather then
himself as an individual.
I find the circumstances of this case oblige me to inquire
into all the relevant circumstances surrounding the negotia-
tion of the 1984 agreement. The inclusion of the term owner-
operator to the agreement with the representation by the
Union that such an addition negates the clause in the contract
which provides it covers all employees creates ambiguity.
The ambiguity is increased when the contract is not in the
name of the Employer, is not executed by both partners, and
contains the social security number of Joy Jr. The bargaining
history in this case, where Joy Jr. testified, without contradic-
tion, Respondent’s representative informed him the addition
of the term owner-operator rendered the clause of the con-
tract which made it applicable to employees, ineffective fully
establishes such latent ambiguity.
The use of parole evidence in these circumstances appears
warranted. As held in Printing Industries of northern Califor-
nia, 204 NLRB 329, 332 (1973): ‘‘the parole evidence rule
as applied to commercial contract is unsuitable of application
to a collective-bargaining agreement. If the true intent of the
parties is to remain our concern it would seem important that
we not be required to close our eyes to all but the uncertain
writing itself.’’11
On all the foregoing, I find the credited evidence dem-
onstrates the parties agreed the 1984 agreement would apply
only to Joy Jr. and not include the employees of Charging
Party. This conclusion explains and clarifies the parties’ in-
tent regarding the provisions of the collective-bargaining
agreement. Beech & Rich, Inc., 300 NLRB 882 (1990). To
hold otherwise would alter the terms of the collective-bar-
gaining agreement by making them applicable to Charging
Party, even though Joy Engineering is not a designated party
to the agreement and the social security number of Joy Jr.
indicates it is an agreement solely between him and Re-
spondent. As noted above, Respondent does not have the
Employer’s signatory put his social security number on its
collective-bargaining agreements. This determination is sup-
ported by the failure of Joy Jr.’s partner, Joy Sr., to sign the
collective-bargaining agreement.
If reliance on the bargaining history is deemed improper,
then logical analysis of the undisputed evidence would re-
quire a similar conclusion. Respondent’s northern California
division permitted Joy Sr. to enter into an analogous agree-
ment as an individual with the same owner-operator appella-
tion. Thus, there has been established an industry practice of
the Union permitting owner-operators to sign agreements as
individuals without applying the contract to the owner-opera-
tor’s employees; despite the written provisions concerning
employees. Respondent failed to produce any owner-opera-
tors who signed similar agreements as individuals that later
were applied to their employees. Respondent admittedly had
a practice of not setting up accounts for billings where the
contracts contained the owner-operator appellation. Jones
opined Respondent would require a new agreement if it were
applied to the owner-operator’s employees.
Although Raymond Morgan claims it is common for
owner-operators to execute contracts with Respondent in
their own name rather than their firm name, not one contract
of this type was placed in evidence. There was no expla-
nation why the Respondent’s practice of having the partner
also sign the agreement when the contract covers a partner-
ship was not followed in this case. Raymond Morgan was
not working at the northern Nevada location at the time Joy
Jr. signed the agreement and he was not shown to know the
practice at that location in 1984. Finally, when the northern
California representative attempted to bind Charging Party
rather than Joy Sr., it prepared a contract with Joy Engineer-
ing as the Employer signatory. When the northern California
representative converted the contract to cover Joy Sr. only,
not Charging Party, it merely changed the name of the em-
ployer to Joy Sr., owner-operator. There was no credible evi-
dence the northern Nevada division followed a different op-
erating procedure.
In sum, in this case, it is necessary to adjudicate the unfair
labor practice allegation, to ‘‘interpret and give effect to the
terms of a collective bargaining agreement’’12 by analyzing
the ‘‘context in which collective bargaining agreements are
negotiated and the purpose which they are intended to
serve.’’13 The negotiations leading to the 1984 agreement
and the Union’s practice established with the 1987 Joy Sr.
agreement, the failure to have the firm name and the partners
signature, and the inclusion of Joy Jr.’s social security num-
ber, clearly demonstrate that at the least, there is ambiguity
on the face of the agreement sufficient to permit parole evi-
dence which unrefutedly requires the construction the con-
tract was entered into with the clear understanding it would
only apply to Joy Jr. and not Charging Party.
Under the surrounding circumstances, the provision of the
contract referring to Joy Jr.’s employees is implicitly ambig-
uous and superfluous because it has been demonstrated that
Jones and Joy Jr. agreed the contract was to apply only to
Joy Jr. and not Joy Engineering and its employees. I con-
clude under these circumstances, Joy Engineering is not
bound by the 1984 agreement and its employees are not sub-
ject to the provisions of that agreement.14
31OPERATING ENGINEERS LOCAL 3 (JOY ENGINEERING)
15 Garver also testified:
Q. Did you inform Mr. Cocks that you were working for Joy
Engineering?
A. Yes, I did.
Q. And did you do that before or after he asked you if you
had cleared through the hall?
A. After.
Q. Did he say anything to you after you said you worked for
Joy Engineering?
A. You mean other than what I’ve already related to you?
Q. Right, what you’ve already told us.
A. Nothing of any consequence that I can recall.
After Garver informed Cocks of his Employer, Cocks did not re-
tract his comments or modify them to indicate they applied only to
employees of a subcontractor working on the project that was a sig-
natory to a collective-bargaining agreement with Respondent. Thus,
the fact Cocks learned the identity of Garver’s employer after the
questioning is not exculpatory. Cocks did nothing to repudiate his
prior comments or mitigate their impact.
16 Garver testified:
Well, as I already mentioned, I was a member of the Operat-
ing Engineers at the time, and as that week or so passed I began
to see that I was getting in the middle of an unpleasant situation
because of my union affiliation, and so I walked past—Pete was
visiting that day, out on the job site, and I stopped to talk to
him for a moment. And I told him that I was a member and
that I wasn’t carrying a card. I was concerned about having
problems with the union as a member.
And he told me that, you know, he didn’t have any problems
with me and that they were dealing with and that it was between
them, basically, and I was pretty much not going to get sucked
into it . . . .
I believe during the course of the second conversation when
Pete and I were just chit-chatting that I asked him if they had
gotten things worked out yet, and he said that as far as he knew,
no.
And I said, well, you know, I have no problem whatsoever
with going to the hall. I’d be more than happy to dispatch, you
know.
And I told him, also, that, you know, I was a member in good
standing on the A list with the Reno hall and that if they wanted
to work something out with Joy Engineering and dispatch me
through the hall, I had absolutely no objection.
As a matter of fact, I would have liked it if they had done
that.
2. Allegations Respondent violated Section 8(b)(1)(A)
and (2) of the Act
In late April, Respondent, by Business Representative Pete
Cocks, an admitted agent, went to Charging Party’s worksite
and spoke to an employee, Derek Garver. Garver was a
member of the Union at the time of this conversation. Ac-
cording to Garver:
A. Well, I needed to speak with the supervisor of the
subcontractor, with whom I had to coordinate my ef-
forts. And I went to speak with him, and at that time
Pete [Cocks] was standing there talking to him and I,
at the time, didn’t know Pete until then.
And he apparently was checking to make sure that
all the guys on the job site were cleared through the
hall. And when I drove up he asked me if I was, identi-
fied himself, and I told him, ‘‘No, I wasn’t.’’
And he [Cocks] told me that I couldn’t be out there
working if I wasn’t cleared through the hall, and I told
him he’d have to take that up with my supervisor.15
Garver became concerned about this conversation and in-
formed Rick Joy
that Pete Cocks had asked me if I was a member of
the Operating—if I had dispatched out of the hall and
that I told him, no, I hadn’t. And that Pete said I
shouldn’t be working out there unless I had, and I
told—I’m repeating what I told Rick—that I told Pete,
‘‘Well, you’d have to take that up with my super-
visor.’’ I wasn’t going to just leave unless my boss told
me to.
Garver admitted Cocks never said he was going to seek to
have him discharged from Joy Engineering. Garver volun-
teered ‘‘Pete was very nice. Every time he spoke with me,
he was extremely civil and pleasant.’’
About 1 week later, Garver saw Cocks and spoke with
him, having become concerned about his status.16 Cocks ad-
mitted having two conversations with Garver. Cocks de-
scribed the first conversation as:
Mr. Garver indicated to me that he had worked prior
for Joy Engineering. He was somewhat—pardon me—
he indicated he did not want to speak to me at length
on the job, due to the fear of someone seeing him talk
to me.
I expressed that was no problem and that I was
just—my thoughts were that Joy was signed and that
that’s—that everyone there would be squared away.
That was the end of the conversation.
Cocks described the second conversation as not containing
any threat, claiming:
He [Garver] asked me how we were doing, and I
says, you know, at this time we have not been able to
do anything.
He asked me about the fringe benefits. And I said
if he was indeed—if the contract was settled, then we
were—then he was signatory, then he would get his
fringe benefits.
I said, you know, I cannot tell you that, because we
can’t get any contact with Rick, so I don’t know where
we stand on our contract.
He indicated that he was looking forward to getting
the insurance. I said, ‘‘Well, I can’t tell you the answer
to that.’’
Cocks claimed Garver was nervous talking to him, he did
not want to be seen talking to Cocks because he feared
‘‘someone seeing him talk to me.’’ He admitted expressing
‘‘that was no problem and that I was just—my thoughts were
that Joy was signed and that that’s—that everyone there
would be squared away.’’ This appears to substantiate
Garver’s claim Cocks said he needed to be dispatched by Re-
spondent.
Garver’s testimony is credited based on his forthright de-
meanor. Also, he was explicit, sure, and certain in his recall
of these encounters with Respondent’s representatives. In
contrast, Cocks volunteered information and was not respon-
sive to some questions. He appeared to be tailoring his testi-
mony to fit Respondent’s litigation theory. Accordingly, I
32 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 Burres explained, ‘‘it started out I went down to basically chase
them off the haul road. I felt they were parked in a dangerous loca-
tion on the project.’’ Burres initially asked Raymond Morgan and
Cocks to move because ‘‘they were parked in a dangerous spot.’’
In response the union representatives introduced and identified them-
selves.
18 On cross-examination, Burres explained ‘‘they—after they intro-
duced themselves, they brought up the subject of Derek Garver. . . .
They said Derek couldn’t be on the job. They objected to Derek
being on the job. . . . Because he had not been dispatched by the
hall.
19 On further examination Burres elaborated, stating:
We had a fellow working for us named Chuck Hall. Chuck was
running an excavator that particular day, putting in some storm
drain. Chuck Cocks [sic] came up to me and said— as I recall,
he said he had been down to talk—talking to Chuck and he said,
‘‘He can’t be on that machine.’’ And he turned and he pointed
down to the area of the job where the machine was. So that was
his comment, he said, ‘‘He can’t be on that machine.’’
Q. And you responded?
A. Well, as I said earlier, I—my first reaction was, ‘‘Why
can’t he be on that certain machine? What kind of a machine
can he be on,’’ you know.
credit Garver’s version of these conversations and find Cocks
told him he should not be working for Joy because he had
not been dispatched by the Union.
Both Cocks and Raymond Morgan spoke with Timothy
Burres, Charging Party’s project manager on the DRI Loop
Road Project in northern Nevada, the job Garver was work-
ing on. According to Burres, the project began on April 13.
On or about April 24, Burres noticed a vehicle parked on the
projects haul road, so he drove over to determine who was
on the road.17 He recalled there were two gentlemen in the
vehicle and they introduced themselves as representatives of
Respondent. Burres could only recall the name of one, Ray-
mond Morgan. Most of Burres’ conversation was with Mor-
gan; he had no recollection concerning the identity of the
second union representative. According to Burres:
Q. And what happened after they introduced them-
selves?
A. They objected to one of the employees that we
had on the job. They objected to him being there.18
Q. What was said?
A. As best as I can recall, the exact wording was
that he can’t— he can’t be here because he hasn’t been
dispatched by the union.
Q. And what was your response?
A. I replied that we were non-union, that we were
a non-union contractor.
Q. And then what happened?
A. This was a very short conversation, the wind was
blowing very hard that time. I had other problems and
I basically shined him on.
I didn’t want to talk with him.
I asked him to leave. I asked him to get off the haul
road.
They were parked in a dangerous location and they
did leave, and they went one way and I went the other.
Burres described the conversation as very short ‘‘because
I didn’t want to get run over by a scraper. We were parked
in a bad spot, and it was a very quick-and-dirty conversa-
tion.’’
About 1 week to 10 days later, Cocks came up to Burres
on the jobsite:
and he introduced himself, identified himself again, and
so on, and said he had been down talking with one of
our operators, a gentleman named Chuck Hall. And he
made the comment to me, he said, ‘‘Chuck can’t be on
that machine.’’
And my reply was, ‘‘What machine?’’ You know, I
suppose I misunderstood him a little bit at first. I
thought he meant he couldn’t be on that specific ma-
chine.
And I replied then that Chuck was—Chuck was non-
union and that we were a non-union contractor, also.
Mr. Cocks at that point made the comment that Rick
Joy was personally signatory, therefore all the operators
on the project had to be dispatched by the union.19
We subsequently discussed the fact that Chuck had
not been dispatched by the hall. That was their objec-
tion—his objection. . . .
I must have replied, ‘‘We’re a non-union contractor.
Chuck Hall was non-union, as far as I knew. We’re a
non-union contract.’’
And I didn’t understand why he was trying to tell me
that Chuck couldn’t be on that particular machine. . . .
Mr. Cocks said that Rick was personally signatory in
the union, therefore all the operators on the job had to
be dispatched by the union.
Q. And what was your response?
A. My reply? Well, I didn’t have a lot of interest,
you know, in the problem. We were a non-union con-
tractor, as I said a while ago, I had shined off the first
two gentlemen and basically at that point I lost interest
in the conversation with him and I, you know, I kind
of shined him off, too.
I said, ‘‘It isn’t my problem. I don’t have time to
deal with it. You can call Rick or call his lawyer or call
somebody, but you and I aren’t going to have a discus-
sion about this.’’
Burres admitted he did not know the legal requirements
and he was very busy. Burres admitted; ‘‘I basically shined
him on’’ and concluded the conversation by saying ‘‘Call
Rich, or call his lawyer or something like that.’’
Raymond Morgan recalled talking to Burres in ‘‘mid-
March or April—back at the first of the year, right after they
started the DRI job.’’ According to Raymond Morgan, he
and Cocks ‘‘were looking for Mr. Joy and then to let him
know that they were signatory and we wanted [Charging
Party] to comply with the agreement.’’ He denies talking
with any employees of Charging Party. On cross-examina-
tion, Raymond Morgan admitted informing Burres the Union
wanted Charging Party to be bound by and adhere to the
1984 agreement. He also admitted Burres said they would
‘‘have to talk to Rick Joy.’’
Cocks also claims he first went to the jobsite in late March
or early April, even though Burres testified without con-
tradiction that the job did not start until April 15. According
to Cocks, the first time he spoke with Burres was mid-April
and:
33OPERATING ENGINEERS LOCAL 3 (JOY ENGINEERING)
just told him Rick was signed and that he needed to get
his guys cleared and he said that, you know, he had
nothing to do with that and would really prefer that I
get a hold of Rick.
And I explained that I had tried, and I asked him if
he could possibly get a message to Rick so, you know,
at least we could get in contact with him.
Cocks denied telling Burres or anyone in management for
Joy Engineering they were to terminate an employee or in-
forming Garver or any other employee of Joy Engineering
they would be discharged or they had to be cleared through
the hiring hall. If an employee is not cleared through the hir-
ing hall and is working for a signatory employer, the Union
files a grievance and the employer pays ‘‘monies into our
trust for the time that person’s on the job that he is not
cleared.’’ In essence, the employer pays twice for that em-
ployee’s services; ‘‘double-payroll.’’ When the employer
clears that employee through the hiring hall, the double bill-
ing stops.
Cocks admitted:
Q. And you also asked Mr. Burres that the Joy Engi-
neering employees who were operators be cleared
through the hall?
A. I did not ask him, I told him that’s what they
needed to be done.
Q. The words you said, ‘‘they must’’ or ‘‘they need-
ed’’ to be cleared?
A. To be cleared.
Q. So it wasn’t a request, it was a statement?
A. It was a statement.
I find Cocks’ admission he informed Burres Joy Engineer-
ing had to clear their employees through the Union’s hiring
hall more believable than Raymond Morgan’s denials. This
admission also buttresses Burres’ testimony, which I find
credible. Cocks, on the other hand, will only be credited
where his testimony is an admission against Respondent’s in-
terests. He exhibited an unconvincing mien. Although de-
meanor alone warrants not crediting his testimony, I also
note a portion of his testimony was elicited through the de-
vice of leading questions, his testimony was self-serving and
exaggerated, and he appeared more interested in supporting
a litigation theory than in testifying candidly about the
events.
Discussion
General Counsel argues Cocks’ statement to Garver ‘‘that
[Garver] couldn’t be out there working if he wasn’t cleared
through the hall,’’ reasonably tended to coerce and restrain
employees from exercising their statutory right to refrain
from joining or assisting the Union. Citing Clothing & Tex-
tile Workers (Troy Textiles), 174 NLRB 1148 (1969), and
Save-On-Drugs, 227 NLRB 1638 (1977). Charging Party
adopts a similar position, that absent a hiring hall arrange-
ment, the Respondent violated Section 8(b)(1)(A) of the Act
by informing Garver he had to go through the Respondent’s
hiring hall. Citing, among others, Carpenters Local 2396
(Tri-State Ohbayaashi), 287 NLRB 760 (1987).
Respondent, in addition to claiming it was merely enforc-
ing a valid collective-bargaining agreement, thereby engaging
in lawful activity, denies its agents made any threats. I con-
clude Respondent’s reasons for discrediting General Coun-
sel’s witnesses are unpersuasive. The fact Burres admitted he
‘‘shined him on’’ bespeaks his candor, as did his direct and
forthright manner. Cocks admitted the first conversation oc-
curred on a day when the weather conditions made it dif-
ficult for Charging Party to perform its work obligations.
Thus the short direct conversation without immediately re-
porting the communications to either Joy Jr. or Joy Sr. is not
improbable.
That the Local may not have threatened any employees
with discharge, merely threatened the Employer with ‘‘dou-
ble billing’’ if the employee is retained without being cleared
through the hiring hall, if credited, is no less coercive. Very
few if any employers, threatened with ‘‘double billing’’
would be able to continue their business operations without
requiring the employee to be cleared through the hiring hall
or terminating an employee unwilling to be cleared through
the union hiring hall. Further, I have found Cocks told
Garver he should not be working for Charging Party because
he had not been dispatched ‘‘out of the hall.’’
I have also found Respondent’s representatives informed
Burres, an employee, he could not be working for Charging
Party; ‘‘he can’t—he can’t be here because he hasn’t been
dispatched by the union.’’ About 1 week later, Respondent
notified Burres that an employee named Chuck Hall could
not be operating ‘‘that machine,’’ because ‘‘all the operators
on the project had to be dispatched by the union.’’ There
was no reference to double billing.
General Counsel cites Clothing & Textile Workers Local
990 (Troy Textiles), 174 NLRB 1148 (1969), enfd. 430 F.2d
966 (5th Cir. 1970), which held the union violated Section
8(b)(1)(A) of the Act by threatening employees with loss of
employment if they did not join the union, inasmuch as that
statement reasonably had the tendency to coerce employees.
‘‘The test of coerciveness of a statement does not, of course,
depend upon its actual effect upon listeners but, rather, upon
whether it reasonably tends to have a coercive effect.’’
As the Supreme court held in Radio Officers v. NLRB, 347
U.S. 17, 40–42 (1954):
The policy of the Act is to insulate employees’ job
rights from their organizational rights. Thus Sections
8(a)(3) and 8(b)(2) were designed to allow employees
to freely exercise their right to join unions, be good,
bad, or indifferent members, or abstain from joining
any union without imperiling their livelihood. . . . [n]o
other discrimination aimed at encouraging employees to
join, retain membership, or stay in good standing in a
union is condoned.
I find, in the absence of a lawful collective-bargaining
agreement between Charging Party and Respondent Union,
by engaging in the above-described conduct, Respondent vio-
lated Section 8(b)(1)(A) and (2) of the Act. The Respond-
ent’s statements constituted implied threats that employees
would not be permitted to continue working for Charging
Party if they did not join the Union, or agree to be dis-
patched through the Union’s hiring hall. The statements to
Burres were attempts to cause the Employer to discriminate
against employees who were not dispatched through Re-
spondent’s hiring hall. Without a lawful collective-bargaining
34 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
agreement binding on Joy Engineering, these statements ex-
ceed the bounds permitted by the Act.
Although Respondent did not expressly demand the dis-
charge of any one employee, it informed Burres an employee
could not operate a piece of equipment because he had not
been dispatched from the Union’s hiring hall. As held in
Northwestern Montana District Council of Carpenters (Gla-
cier Park), 126 NLRB 889, 897 (1960):
An express demand or request is not essential to a vio-
lation of Section 8(b)(2) of the Act. It suffices if any
pressure or inducement is used by the union to influ-
ence the employer.
Analogously, NLRB v. Jarka Corp., 198 F.2d 618, 621 (3d
Cir. 1952), was quoted in Electrical Workers IBEW Local
441 (Otto K. Olesen Electronics), 221 NLRB 214 (1975), as
follows:
[I]t is unnecessary to determine whether Respondent’s
unlawful conduct was fortified by a threat as ‘‘the rela-
tionship of cause and effect, the essential feature of
Section 8(b)(2), can exist as well where an inducing
communication is in courteous or even precatory terms,
as where it is rude and demanding.’’
In Operating Engineers Local 18 (Ohio Contractors), 204
NLRB 681 (1973), the Board stated in part:
When a union prevents an employee from being
hired or causes an employee’s discharge, it has dem-
onstrated its influence over the employee and its power
to affect his livelihood in so dramatic a way that we
will infer—or, if you please, adopt a presumption
that—the effect of its action is to encourage union
membership on the part of all employees who have per-
ceived that exercise of power [citing Radio Officers].
But the inference may be overcome, or the presumption
rebutted, not only when the interference with employ-
ment was pursuant to a valid union-security clause, but
also in instances where the facts show that the union
action was necessary to the effective performance of its
function of representing its constituency.
In this case, General Counsel has made a prima facie
showing Respondent did not have the right to claim dis-
patches must be made through its hiring hall and there was
no demonstration by the Union there was any lawful basis
for its demands the employees be dispatched through their
hiring hall as a condition of employment to both Burres and
Garver. Accordingly, I conclude the statements of Respond-
ent’s admitted agents were in derogation of Charging Party’s
employees right to refrain from supporting the Union, and
encouraged employee support for the Union, as well as en-
deavoring to enforce the 1984 agreement by attempting to re-
quire the Employer to hire only employees dispatched
through the Union’s hiring hall, or to otherwise discriminate,
in violation of Section 8(b)(2) and (1)(A) of the Act. See
Bricklayers Local 2 (Glenshaw Glass), 205 NLRB 478
(1973).
CONCLUSIONS OF LAW
1. Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act.
2. Charging Party is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
3. By threatening employees with the loss of their employ-
ment if they did not get dispatched through Respondent
Union’s hiring hall, Respondent has violated Section
8(b)(1)(A) of the Act.
4. By demanding recognition as the exclusive bargaining
representative of the employees employed by Joy Engineer-
ing, when there was no valid collective-bargaining agreement
covering the employees, and by seeking to enforce the agree-
ment by attempting to require the Employer to hire only em-
ployees dispatched through the Union’s hiring hall, or to oth-
erwise discriminate, Respondent has violated Section
8(b)(1)(A) and (2) of the Act.
5. These unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent violated 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 ef-
fectuate the policies of the Act.
I shall recommend Respondent cease and desist from act-
ing as the collective-bargaining representative of Charging
Party’s employees in northern Nevada, until Respondent is
certified by the Board as the collective-bargaining representa-
tive of the employees in question or Respondent and Joy En-
gineering voluntarily enter into a clear and unambiguous col-
lective-bargaining agreement covering Joy Engineering’s em-
ployees in northern Nevada.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended20
ORDER
The Respondent, Operating Engineers Local Union No. 3,
AFL–CIO, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Threatening employees of Joy Engineering with loss of
employment if they are not dispatched through Respondent’s
hiring hall.
(b) Acting as the bargaining representative of the employ-
ees of Joy Engineering in northern Nevada, for the purposes
of collective bargaining, unless and until there is a valid col-
lective-bargaining agreement between Respondent and
Charging Party and attempting to cause Joy Engineering, or
any other employer, to deny employment to or otherwise dis-
criminate against employees who have not been dispatched
through Respondent’s hiring hall.
(c) In any like or related manner restraining or coercing
employees in the exercise of the rights guaranteed them by
Section 7 of the Act.
35OPERATING ENGINEERS LOCAL 3 (JOY ENGINEERING)
21 If this Order is enforced by a judgement of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgement of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Notify Joy Engineering, in writing, that it has no objec-
tion to the employment of employees that have not been dis-
patched through the Union’s hiring hall.
(b) Post at its business offices and other places where no-
tices to their members are customarily posted copies of the
attached appropriate notice, marked ‘‘Appendix’’21 Copies of
the attached notice, on forms provided by the Regional Di-
rector for Region 32, shall be posted by the Respondent after
being signed by its authorized representative, shall be posted
for 60 consecutive days in conspicuous places where notices
to members are customarily posted. Reasonable steps shall be
taken by Respondents to ensure that the notices are not al-
tered, or covered by any material.
(c) Notify immediately Joy Engineering that it has no ob-
jection to the Company’s employing individuals that have
not been dispatched through the Union’s hiring hall.
(d) Mail to the Regional Director for Region 32 signed
copies of the notice for posting by Joy Engineering, if will-
ing, in places where notices to employees customarily are
posted.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.