Teamsters Local 959

National Labor Relations Board - Board Decisions

Jan 17, 1979

239 N.L.R.B. 1387 (N.L.R.B. 1979)

TEAMSTERS l OCAL 959
Teamsters Local 959, State of Alaska, affiliated with
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America
(Ocean Technology, Inc.) and Barton N. Stone.
Case 19-CB 2859
January 17, 1979
DECISION AND ORDER
BY CHIAIRMAN FANNING AND MEMIBFRS JLNKINS
AND PENEILO
On January 18, 1978, Administrative Law Judge
Richard J. Boyce issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief, and the General Coun-
sel filed a brief in support of the Administrative Law
Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The Respondent represents two units, both of
which are coterminous with the State of Alaska. One
of them consists of construction workers, drivers,
and warehouse employees, while the other, the one
involved in this proceeding, consists of technical en-
gineers or surveyors. Employees in both units are re-
ferred through the Respondent's exclusive hiring
hall. The Employer herein, Ocean Technology. Inc.,
is one of five surveying subcontractors of Alyeska
Pipeline Service Company performing work on the
Trans-Alaska Pipeline.' The instant dispute concerns
whether the Respondent violated Section 8(b)(1)(A)
and (2) of the Act when it insisted on the right to
dispatch from the hiring hall its designees as union
stewards in preference to other eligible employees.
In the spring of 1974, the Respondent, together
with various other construction unions, succeeded in
obtaining a project agreement from the Alyeska
Pipeline Service Company which required that ans
pipeline work subcontracted to other firms be per-
formed pursuant to the project agreement. Thus,
Ocean Technology signed an agreement with the Re-
I he employers commonlk send surveying crews. consistlng of three It
four employees. to various locations throughout Alaska Although iIt a,
served with the complaint and notice of hearing. neither :he I mplotsi nor
an) one of the four other surseying subcontraclors working on the pipeilne
is an parts to this proceeding.
spondent whereby, among other things. it agreed to
hire for work on the project only employees referred
hby the Respondent's exclusive hiring hall. The exclu-
sive hiring hall provisions of the contract provided
that the Union would refer employees on a first-in/
first-out basis. with several exceptions. The Employer
could reject for a '"legitimate reason" an5 applicant
referred by the Respondent. In addition, the Em-
ployer could override the hiring hall's first-in first-
out procedure by requesting specific employees b?
name to fill supervisory positions or to fill any posi-
tions if the named employees had worked for the
Employer for at least 400 hours during the previous 2
sears. Finally, the contract provided that " [t]he Job
Steward may be the first person hired and/ or dis-
patched at the Union's discretion."
Prior to Feb-ruary 1977, the Respondent had never
sought to enforce the steward preference clause
against the surveying subcontractors, apparently
being able to designate acceptable stewards from
among those employees referred out of the hiring
hall. It should be noted that as work on the pipeline
project intensified the number of surveyors in the
unit increased from about 100 in 1972 to a peak of
1.200 during the 1975 and 1976 seasons. With the
pipeline nearing completion in 1977, however, em-
ployment was cut back drastically to at most about
300 surveyors during the summer. In mid-February
1977, the Respondent apparently became aware that
although it had referred about 88 surveyors to the 5
subcontractors working on the project, all of them
had been dispatched according to those employer's
name requests and apparently none of them was qua-
lified as a steward. In response to this situation, the
Respondent, citing the steward preference clause in
the contract, asked the five surveying firms either to
include an open call for each crew (which the Union,
at its discretion, could fill with a steward designee) or
to notify the Union of their intended requests in ad-
vance so that it could determine whether any of those
named would be suitable as stewards. All but Ocean
Technology complied with this request. Ocean Tech-
nology indicated that it felt the proposal intruded on
its prerogative in the hiring process.
On February 28. 1977, the Employer requested
three employees by name to work on the project. The
Respondent dispatched two of them, substituting
Paul Sweet, a steward designee. for the third request-
ed employee, Armand Sanders. The Employer re-
fused to hire Sweet, since it had not requested him.
The Respondent then dispatched Rex Poe but the
Employer refused to hire him as well. Then, on
March 3. the Employer requested another crew con-
sisting of Barton Stone, the Charging Party herein,
George Paulsen. and a minority applicant. But the
1387
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent determined not to refer ansone until the
issue of the steward preference clause was settled.
Under pressure from Alyeska, Ocean Technology fi-
nally agreed to accept the Respondent's steward and
to award Sweet and Poe showup pay for the days
they were dispatched but not hired. In June, the par-
ties agreed that the Respondent could dispatch two
more stewards, one for northern Alaska and one for
southern Alaska.
In August, the Respondent apparently appointed
another steward at the Employer'sjobsite near Prud-
hoe Bay. 2 However, in September. this person was
scheduled for rest and recreation leave. The Respon-
dent sought to send another steward designee to re-
place him, but Ocean Technology refused to accept
him, requesting instead Dale Grinager. Shortly be-
fore the hearing, the Respondent refused to dispatch
Grinager and sent Eugene Duval instead. Under
pressure from the general contractor. British Petro-
leum, the Employer finally issued an open call which
was filled by a steward designee.
The Administrative Law Judge found that, in seek-
ing to enforce the steward preference clause in
March, and again in September. by refusing to com-
ply with with the Employer's name requests for San-
ders, Stone, Paulsen, and Grinager, the Respondent
violated Section 8(b)(l)(A) and (2) of the Act.' He
reasoned that because the Board in Dairiylea Cootper-
ative Inc., 219 NLRB 656 (1975), enfd. 531 F.2d 1162
(2d Cir. 1976), established a presumption that any
preference given to union stewards other than for
purposes of layoff and recall is unlawful, the Respon-
dent was required to demonstrate specifically) how its
application of the clause was designed to benefit the
unit as a whole. Then, relying on Local Union 798 of
Nassau Countv, New York, et al. (Nassau Division of
the Master Painters Association), 212 NLRB 615
(1974), he found that the Respondent had not over-
come the adverse presumption since it had not estab-
lished the existence of circumstances of a compelling
nature requiring the presence of specific stewards, or
for that matter any stewards, on particularly trouble-
some jobsites.4
! 1he Emplover was performing this job pursuant to i conIr.ail vith Brit-
ish Petroleum. rather than Alveska. but because British Petroleunl had also
signed a project agreement the Emploser performed thisjob pursuallt t the
union contract.
The Administrative I.ha Judge concluded that. because all silnalorites
to the collective-bargaining agreement were not joined in the proceeding. he
was not empowered to invalidate the clause, but could inl) enjoin the Re-
spondent from seeking to enforce it Although we agree that signalries io
the agreement not parties to this proceeding would not be bound b, a
decision as to the validity of the ste.ard preference clause. nevertheless this
did not preclude the Administrathve l.an Judge from ma;kinlg a deternlna-
lion which would he binding ion the parties to this procceding
4Observing that the Respondent haid not siiught tio place .i st.erlid on
each surveying crew, the Administratie Lav, Judge apparentls c.oncluded
that there wais no special need for slenurds l hu,. findling ni, palrticular
We disagree with the Administrative Law Judge's
premise that all attempts to apply steward preference
clauses in the hiring hall context are burdened with
an adverse presumption. In District Council No. 2 of
the Brotherhood o( Painters & Allied Trades, AFL
('10 (The Paintsmith.s, Inc.). 239 NLRB 1378 (1979),
we recently held that a union seeking to enforce a
'steward preference clause in a new hire context acts
in furtherance of a legitimate interest in ensuring "it
would have present [on the jobsitel a steward who
would be more disposed to enforce trade rules and
police the contract" than one designated from the
employer's employee complement. In so doing, we
overruled Local Union 798, Painters (Nassau Division
of the Ma.ster Painlers Association), supra, relied on by
the Administrative Law Judge, insofar as that deci-
sion stood for the proposition that such an objective
was presumed illegitimate absent a showing of a de-
sire to place a particularly knowledgeable steward on
a particularly troublesome jobsite.5 Moreover, we be-
problenis requiring the presence of specially experienced nr especiall) Iosal
ste ucrd s On parlicularls troublesome jobsites. the Administrative Law
udge concliuded the Respondent had not rebutted the presumption that the
ste, lird preference ;was unlawful.
We nole that Menmber Penello has accepted the Administrative law
Judge's misstatement of the Respondent's business agent's testimons re-
gLrding problems the Rerpondent had experienced with Ocean Technologs
HBoth oul dissenting colleague and the Administrative Law Judge stated that
the Respondent', business agent testified that th: Respondent's prohblems
with Oceain Technrloig had been "'minor' and 'no different than Ithose
itthl other cortipainies \s noted in the Respondent's exceptitns, the rec-
,rd actua;lls sltonAs that this stiltement was made following a discussion
rhout the Respondent's difficulties in the past with what it felt was Ocean
I[echnoliog's use of a diiuble-breasted structure to violate the project agree-
nlent, and nwia in response to} a question as to whether there nwere "an rr other
pruoblems with Ocean Technolog ," (l:mphasis supplied.) Ihe testimon5r is
this
Q. llave there been an\ specific ccnltractual problems that ,ou were
awanlre of or helieved were happeninl: with Ocean Technologs?
A. Yes there hals
Q l.ike nwhat'
,. I think mostlsn what I nwould be suspicious of as to guarding oiur
urisdicmion trnder the tech engineer agreement possibly his (what I call
diible -hreaisted firms
Q I)oes this probleni refer 'pecificall) to Ocean lechntlogs)?
AS No si
Q Well among others If there are ithers is Ocean lechnologs one
of tie comlpanies sou had that concern about'
A. Yes.
Q And hase Su received that type rof report about Ocean 'I echnol-
ogy during Ihe time sou have been business agent for the tech engi-
neers'
A (On numeroun. ioccasions.
Q Were there ainm wtrher prohblems with Ocean Technology, from a
labrbr relatins standpoint? [Emphasis supplied.
A I woiuld sal the) would be minror if the) were. no different than
ither crinipanies
WVe fiitd it difficult Iui understand Member Penello's interpretation of the
testimotls
In Pntel,l, the Board held. over then Member Fanning's and Member
Jenkins' dilsentl that bs) "inisting orn la steward preference clause to govern
referral, from its hiring hall without a showing of a specific need to refer
patrtitularls knov ledge;able stewards o, potentiall troublesome jobhsiles or
to ai piriiculairl difficult emplorerl and striking to obtain it" a union "at-
tempted to cause the employers to discriminate against emplosees and ap-
plicant.I fir eTlplOs inent inl sialiton ,if Section
8
(a)1 3 of the Act ald
!388
TEAMSTERS LOCAL 959
lieve the Administrative Law Judge's reliance on
Dairylea, supra, to erect a presumption against stew-
ard preference clauses in hiring hall agreements is
misplaced. There, the Board recognized that the con-
tinuous presence of an experienced steward on the
job provides a benefit to all employees in the unit
which outweighs the incidental detriment to other
unit employees engendered by granting the stewards
superseniority for purposes of layoff and recall.
Thus, the Board held that, although superseniority
for stewards is not per se unlawful, it may be pre-
sumed to be so where it is not limited to layoff and
recall, and accords benefits to stewards which are
unrelated to their performance as stewards. How-
ever, the Administrative Law Judge's literal applica-
tion in the hiring hall context of Diarvlea's "layoff
and recall" standard misconstrues the rationale of
that decision. Because workers in hiring hall situa-
tions are usually employed only for the duration of
particular jobs rather than on a permanent basis, the
concept of "layoff and recall" has little relevance.
Nonetheless, as we held in The Paint smiths, lsupralt
ensuring the presence of experienced, qualified, and
loyal stewards on such jobs to administer the collec-
tive-bargaining agreement is a legitimate union ob-
jective. Thus, we hold that where, as here, the stew-
ard preference clause does nothing more than grant
the union discretion to send a steward to a job ill
place of another employee who would otherwise hae
been entitled to that referral, there is no presumption
of illegality. Accordingly, we find the clause herein
valid on its face since by assuring the presence of a
qualified steward on the job it serves the same basic
accordingly. violated Section 8(h} I t A and (2) of the Acl. and refulcd ti
bargain in violation of Sec 8(bX3) as well. Of course. the Boa;lrd, i.llrits',
requirement there that a union make a prospective howine w f peca;l ir-
cumstances before it even may attempt to negotiate a stew .ard preference
clause assumed remarkable prescience on the part of union h.rinilillng rep-
resentatises Further. our dissenting colleague's presenl attempt to r1ani.ll
lze that rule is based on a convoluted reading of R.idi,, Olru ir' I sn,w iit,,
Commercial Telegrapher. A FL [.4 If Bull Sreamnthip (i ./ X. . 1L R B. 347
U.S. 17 ( 19541. and subsequent declsions relslng thereon In Rhd, ll t)ft),r *
the Supreme Court held that when a union seeks to iffect an enlpl ,\e'.
relationship with his or her emploser that action ma! be presumed to h itc
a tendencs to encourage union membership But. as the Boa.rd his citni1.
tentl) stated. that is not to sas that the Baord is rcquiired 10i ctlludc tilc
chanically that all such encouragement is unlawful Rather. if a unoin'-
actions are taken pursuant to a lawful union-securlt\ a.reclmentl i in lur
(herance of legitimate union .obJecllves there Is no presumed unlaI ilul effect
See cases cited hb Member Penello in his dissent in lh, Iirlirilrh, qi/rii.
in 24 Thus In Dairilea (isooerattic. iuipri. the Board stated tihll ai t uln
would not be presumed to have sio.lled the Act where it netal.lled .ad
enforced a clause providing that stewards hase supereliorus foir p"ltpiOss
of layoff and recall. In so doing. the Board did not require. as our d1 scint
ing colleague appears to suggest it should hase required, hat al union iinak
a specific showing of special circumstances requrin the precnce of 1i.i an.-
ular stewards at paruicular jobh each time it neotil tes ;. superscnlrll t Is'"
vision limited to lasoiff and recall or each timte it seeks to enforrc ile inr
would it have been logical to do s, Srflmilrmas. dc o not hbliec that rcqui
Ing such a special showing i s loginal here
objective as a clause granting stewards superseniority
for purposes of layoff and recall.
In finding that the Respondent's attempt to en-
force the steward preference clause violated the Act.
the Administrative Law Judge employed an errone-
ous standard. The appropriate question is not wheth-
er there was a compelling need to send particular
stewards to particularly troublesome projects. but
rather whether the Union's conduct was "arbitrary,
invidious, or irrelevant to fits] legitimate . .. inter-
est." As.hler, Hickman ULhr Co., 210 NLRB 32, 33
(1974)." Accordingly. unless there is a showing that
the Respondent's appointments belied any motiva-
tion to assure effective administration of the con-
tract,. a violation of the Act is not established. No
such showing has been made here.8
ORDER
It is hereby ordered that the complaint in Case 19-
('B 2859 he, and it heteby is, dismissed.
M '1iBI R Pt!skHi o i dissenting:
I do not agree with my colleagues' finding that
Respondent Union did not violate the Act by seeking
to enforce the steward preference clause contained in
the agreement between it and the Employer. As more
fully explicated in my dissenting opinions in two
cases issued today.9 I find that the Respondent's ap-
plication of that clause was not necessary to the per-
'(h.railrnin nnin filis \ uInllecesar\ Ito rcls on these descripilve
terims I i hts opiniun. as the clntrlilt cel\c the tnlnn the riehl t o dcsignalte
a stc.lrdl On tIhe job. the I nloin s nlotis.r ion. If unlawful in s irai tter iof
affirllloixc proof Io le established hs the (reneral ( ounsel
MItilher Pentl l rroneui r LI a-serls thflt iiri decisi)on in thl, case. i
.
uell
ax, 1his e II Iitit AtnIlrlnil. iqrlt and nii itd rolhrhri dl ti ( irq/,itliri tnd
Jtunl p,/ 4tminn ,- It,tli/a IS -it l Dumi a )ltI t lilt ). 219 Ni RB 117-
l19'
9
t, ill rcauhll - thc (cncral (t llnscl [being] foreclosed from esen
.;ttemnping III refUtIC the Uirns11~ .a,sertlnl,- Ihlt It, purpose in enforcing a
sie,.wrd rclferenrce proslstmn is ti .assure effectie adminlstration if Ihe
,cnil.keI I,,c iorin 4- ,h/c. Jit Iurli-i hri iupeil the Btoard cleirls erected
stindirtd i Ichbes th o arlc n duct Is to he judged
I or etxample. uc helie held that unions c irlated the Act when thes
crantlied preferences arbi rarilt In Illludttng Material, Irute Drlvr1 . ( hault
/c"" itd It/[c/. ii Ia " sli 2v /inr/ hlt.lt Brt lh. ritisd itf rirrisero.
( ittiil/f i I t h./ ,,ti ailt t el,,r i t'icri if . l rt tplf. In ), 229 Ni RB
347 I;'-T. uhere the unaiin' buhuiness aient conferred a stcaurd posllion
c. dln] it 11 tt11. 1 .1 uIpe tiiienlollti ini his onirl-l law. and in Paitirlrl tlirr
-I.r, .i Dtnl ! )l ll'liP I intll',ll. lllrl / ,,Aiii ttn IA - lxl nol Stir1 l 41- t'rtli.
41l 1 /( /J} /r if , Pt ten rn l/f,lt.hlrr,r, 4s-,,ltll.ttn. 233 NI RB 410
t19' 77 here tIh uiotn cranled a hirinre preference to its present .ani for-
tller iftl.crs w ho perfi, inied l/} scui. rd tunllutriis al tIhe planl
IIc (incert t kinii o ttn rcrill - c ii thIe ! c o irltr pcrmitrs the uniti on)
1 refcr lie te ic. rd as tie flltt rl lin ol[ ..n ia iob." anid thai in rin elih r
IaLIt1111 initi..c.Id herCinu rcrc the Rcspoldent'i s stcu.rds Ihe firsi nien di,-
pathed I hce cmlal iII .i1t 1 ''p', ds tht I [lihc Jub Steward iTi..s be thc
firtl I'Cr'" Illrd a.nI . r dls't.lllCd ai . th I nitili 's dlsclCtioi ' S Ce bhihci c
hit t l1.1il Illr.i Tclsatll. hlt he IrIilertcicId Ii perriril the L nloni to desiclin.li
sIte .al. id I e ri\t sxt l Ii tc Alrdis wa is donue i Sepitemnher as wel la
., pCrinl thc t I tiotn l i i rcfel one tc',si rd is a b i ill pl.acc of one of three
rildl ul ut requc'eI hf Iit I C. Iii i d t rIieC Il \1 irch
I),t i ( an,,,, 1 [, ' ,,/ tit, elit tilgl t lt' d ill 4 //led Irad,>
J J ( If i i IhtAt. I'*l , w Iih , h. ?3" \I R B 137at ( 1979g .and I a.'d Br,-0,
l,,ill ,I (alitt l' ,ll /i ,]tul ,i 4lil., ,t I,NIl 49 i 'i ati ,ll titi 1), lt tr
li , 2' 1 NI RB I 71 7 t197)I
1389
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
formance of its representative functions. Accord-
ingly, the Respondent's insistence on dispatching
persons of its own choosing to be job stewards, which
resulted in the prevention of employee Barton Stone
from being hired, constitutes a violation of Section
8(b)(1)(A) and (2) of the Act.
The Respondent and the Employer are parties to
an agreement which provides, inter alia, for an exclu-
sive hiring hall pursuant to which the Respondent
would refer employees on a first-in/first-out basis. A
stated exception to that rule gives the Employer the
right to request specific employees by name based
upon previous work experience with the Employer.
Additionally, the agreement provides that the job
steward may be the first person hired and/or dis-
patched at the Respondent's discretion.
In February 1977 the Respondent learned that
substantially all of 88 dispatches made at the start of
the season to 5 companies, including the Employer,
were pursuant to name calls and that it did not have
an appointed steward in the field. The Respondent
apparently was of the opinion that no one it consid-
ered to be qualified as a steward had been called.
Therefore, the Respondent. in an attempt to apply
the steward preference clause, requested the Em-
ployer to either include an open call for each crew,
which the Respondent could, at its discretion, fill
with a steward designee, or notify it in advance of its
request for a crew so that it could determine if any
employees requested by name would be acceptable
as stewards. As noted by the Administrative Law
Judge, this was an "unprecedented" move on the
part of the Respondent. The Employer refused to
comply with the Respondent's request.
Subsequently, the Employer requested three em-
ployees by name. The Respondent dispatched two of
them and took the liberty of substituting, for the
third employee, its choice of an employee to act as
steward. The Employer refused to hire the Respon-
dent's choice since it had not requested that employ-
ee and also refused to hire a second emplo\ee sug-
gested by the Respondent. Shortly thereafter, when
the Employer requested another crew by name, in-
cluding the Charging Party herein, the Respondent
determined that it would not refer anyone until the
steward preference issue was settled. On another oc-
casion when a steward appointed by the Respondent
went on vacation, the Employer refused to hire the
Respondent's choice of a steward designee to replace
him and instead requested an employee by name. a
request refused by the Respondent, who sent its own
choice of an employee. At no time before these inci-
dents had the Respondent refused the Employer's re-
quests for specific employees for the purpose of hav-
ing a person of its own choosing as steward.
In my dissenting opinions in The Painismiths and
Scott and Duncan, supra, I took the opportunity to
express my views regarding cases such as this which
involve a union's enforcement of a steward prefer-
ence clause. Accordingly, I shall not repeat here the
contents of those opinions. However, certain obser-
vations made previously are necessary to an under-
standing of the case under consideration.
We have consistently held that a union violates the
Act when it causes the discharge of an employee,
except in certain circumstances. We have explained
our rationale for this holding as follows:' °
When a union prevents an employee from
being hired or causes an employee's discharge, it
has demonstrated its influence over the employ-
ee 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 perceived
that exercise of power. But the inference may be
overcome, or the presumption rebutted, not only
when the interference with employment 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 per-
formance of its function of representing its
constituency.
There is no contention made here that the Union's
refusal to dispatch the employees requested by the
Employer was pursuant to a union-security clause.
Thus. it would appear that the Respondent could es-
cape the effects of the adverse presumption only by
showing that its actions were necessary to the effec-
tive performance of its representative functions. If no
such showing is made, the adverse presumption
would work to find the Respondent in violation of
the Act.
However, my colleagues have seemingly aban-
doned this approach by their holding in this case,
and, in the process, they have abandoned the concept
of the adverse presumption. They are apparently
content to rest with the finding they made in The
Paintsmiths that "ensuring the presence of experi-
enced, qualified, and loyal stewards on such jobs . . .
is a legitimate union objective." That being the case,
if a steward preference clause gives the union the
chance to send its choice of a steward to a job in
place of an employee who might have been referred,
there is no presumption of illegality.
What my colleagues have done, in effect, is to re-
move from the Act's scrutiny a union's attempted
Inlernalonal t nion of Operating Engineer. l.ocal 18. AFL ClO (Ohio
('ltl, ir s 204 Nl RB 681 119731.
1390
TEAMSTERS LOCAL 959
enforcement of a steward preference clause, for thes
have supplied a union with a read) explanation as to
why such a clause must be applied. All a union need
do now is merely claim that having its choice of a
steward on the job will, in essence, promote the en-
forcement of trade rules and the policing of the con-
tract. That is where my colleagues would end their
inquiry; no further justification need be given, no
facts, no "compelling reason," '' and, more impor-
tantly, no connection between the situation on a par-
ticular jobsite and the asserted reason why the union
must have its way in this matter need be shown. Fur-
thermore, with the Union's alleged "reason" being
accepted as prima facie valid, the General Counsel
would be forclosed from even attempting to refute
the union's assertions. For these reasons and as more
fully expressed in my dissenting opinion in The
Paintsmiths, supra, I cannot accept the mlajorit)'s
abandonment of the long-established rule creating an
adverse presumption in circumstances such as those
involved herein.
Frankly, I am puzzled by the majority's overall
treatment of the issue of steward preference clauses
in this case, The Paintsmiths. and Scottl and lDuoan.
For example, in The Paintsmiths in which the majori-
ty overrules Local Union 798, Painters,'2 no mention
is made of Dairylea Cooperative Inc.'" Yet. in Scolt
and Duncan, the majority apparentlN argues that Dai-
rylea is the controlling precedent in steward prefer-
ence clause cases.
While Dairylea and the steward preference cases
involve layoffs of employees (or. as in this case. the
prevention of an employee from being hired) due to
the application of a contractual clause granting some
sort of priority to stewards. that is where the surface
similarities end and the crucial differences begin. In
essence, as I noted in my dissenting opinion in Scotl
and Duncan, the policy considerations which prompt-
ed the Board to conclude that contract clauses
awarding union stewards superseniority restricted to
layoff and recall are not present in steward prefer-
ence cases. In Dairylea, the Board set forth the un-
derlying rationale of that case as follows: "Ihe law-
fulness of . . . [a] superseniority [clause limited to
layoff and recall] is, however, based on the ground
that it furthers the effective administration of bar-
gaining agreements on the plant level by encouraging
the continued presence of the steward on the joh." 14
In these cases. however, the issue is not one of r(t on-
tinued presence" of a steward on the job. Moreover,
and crucial to my dissent in all of these cases toda.,
the unions have not demonstrated whs the "effective
administration of bargaining agreements on the plant
level" could not have been achieved mcrel: b', ap-
pointing as steward an employee alreadth oln the job
Thus. while I do not consider DairIlea to be control-
ling regarding the t)pe of steward preference clauses
with which we are dealing today, nonetheless I do
find certain of its rationale to be instructive. For, as I
have consistently expressed throughout these cases
issued today, " [the issue ultimately is one of justifi-
cation." 15
Accordingly. as I would continue to look at the
particular facts (-f a case to determine whether a
union has rebutted the adverse presumption created
by its application of a steward preference clause, I
conclude that, upon the facts of this case, no such
showing has been made. The Respondent's business
agent. Mitchell, admitted that job stewards were not
present in many areas of the jobsite, and that there
would not necessarily be a steward on a crew 2.000
miles awa'a. I hus. like the Administrative Law Judge.
I can find no merit in the Respondent's assertion that
such alleged reasons as the size of the State. the re-
moteness of jobsites, and the fact that facilities are
primitive favor the appointment of a steward who
possesses certain attributes. It is significant to note
that such reasons had never moved the Respondent
to exercise such control prior to the events occurring
herein. Furthermore. Mitchell could cite no instances
of inadequate performance by stewards appointed
from the Employer's complement of employees. Fi-
nall,. when asked if the Respondent had had any
particular problems with the Employer from a labor
relations standpoint. Mitchell replied, "I would say
they would be minor if the\ were; no different than
other companies." I"
In conclusion. I find that the Respondent has not
justified its attempt to apply the steward preference
clause herein as being neccssary to the effective per-
formance of its representative functions. Accord-
ingls. I would find that the Respondent violated Sec-
tion 8(b)( )(A) and (2) of the Act.
r il ., i. 1/ iil h/ , ( .. 10 i \I R hB 32 i ' 74}
/ ,1 ldl I ?I ! '"l r I ,' %.,i, ( ,triM , .\ 'r ) ,r ,i irrlherho,...d il PtIlule r
ait , :'1 [ritnitl . tI l (11) ( \. 1 a, I,, / } .. I. ti/ ) l , lh l, f tifcr i .rir r A .. ll.
1t I. 21 Il RB iI 'I (1 l '4)
Alltri. '. .' irt IR,, 219\ N RB irth r 1975h
4 /t ,'1 t ctrlprh. i-rph elr~cl
I I rIkhlC I Iru 1rh i I , IC.a a thaIlr I I hae nnrled MirtIe cIl's
[ele[llt /k ,In re.lfrr.e 1i . tlrein Ih el-lt . -`,were there .an olher pror hlerl
I.lh Oc. l eIn L IehrnIoioI rt .r a lahor rel.tihonrs tandpoinrl.r Slithell art-
r.re ledt, not ahboe I fall tr. perceive the rele,.trle of nolrin that this
Ir. I I li xi.h aC f.\ l ead1 .dII--'I d I f .) Cean technolos's double-
hrec.ited oper.rtlon,. iiil/Amutl .hr Ithe lertinion i quoted b. nor colle.ague,. IS.
ait hc tt ,lbir l. .Is .aid flils Io re.eul r1th ar crbantblane i f -.peitfilrt
,hetl r it) fatl. ()C;lt t eihnolopg's alleged double-hbreaited rperations
,ee .I probhlemt If ri; ..olleagues are Irlig (t1 suppl, me Alth thejusttfica-
tm I ,wtI ..r kiik ft. hereity lhex ha.e not succeeded in their altenipl
1391
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF IHE CASE
RICHARD J BoY(E. Administrative Law Judge: This case
was heard before me in Anchorage, Alaska, on September
15 and 16, 1977. The charge was filed March 9. 1977. and
amended March 30 and May 12, by Barton N. Stone. in his
individual capacity. The complaint issued April 28, was
amended May 23 and during the hearing, and alleges that
Teamsters Local 959, State of Alaska, affiliated with Inter-
antional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America (Respondent) has vio-
lated Section 8(b)(1)(A) and (2) of the National Labor
Relations Act (Act).
The parties were permitted during the hearing to intro-
duce relevant evidence, examine and cross-examine wit-
nesses, and argue orally. Briefs were filed for the General
Counsel and for Respondent.
I JURISDICTION
The affected employer is Ocean Technology, Inc.. (OT)
an Alaskan corporation headquartered in Anchorage, en-
gaged in surveying. In its last fiscal year before the trial,
OT performed surveying services of a value exceeding
$50,000 for Alyeska Pipeline Service Company. (Alyeska)
which in turn annually causes goods of a value exceeding
$50,000 to be brought into Alaska from outside the state.
OT is an employer engaged in and affecting commerce
within Section 2(2), (6). and (7) of the Act.
II. LABOR ORGANIZATION
Respondent is a labor organization within Section 2(5)
of the Act.
111 Isst 1is
The General Counsel contends that Respondent violated
Section 8(b)(1)(A) and (2) in March and September 1977
by its interpretation and enforcement of the steward-pref-
erence clause in its hiring-hall agreement with 01T. and by
its attendant refusals to honor OT's requests for the dis-
patch of Armand Sanders, George Paulsen. Barton Stone,
and Dale Grinager.)
Respondent denies any' wrongdoing.
At the iiuise of the hearing counsel for the (; cor.al ( ouinici t.ltd thl!
he was "attacking the clause itself." and not lonlk Rcspiondelilt Iltleplclel-
tion and enforcement of It. hat positl on scenlinllI\ %ac Li .lir .Ih.lldl nicl
because of the nonjoinder in the prloceedirn of .an emlploser-p.iltlC, 1i tlh
agreement containing the clause (Consi'lent ,ltih h11 i 1 sellilg ihllndon-
ment. counsel for the (General ( ounsel states in his hrief: " J`lithoitl theit
parties. [Ihe Administrative Law Judgel did not ha.c Ihe poh " ie 1, l;,nki
their agreement bh declaring a clause thereof vold- I he validity l Ithe
clause is not addressed in this decision
OT at relevant ti.nes was under contract to Alyeska to
do surveying incidental to the construction of the Alaska
Pipeline, and to BP Alaska, Inc. (BP) to do the same at the
West Gathering Field, near the pipeline's northern termi-
nus at Prudhoe Bay. In both undertakings, OT was bound
by a labor agreement between Respondent and the Alaska
Chapter, Associated General Contractors, as concerns
those employed by it as surveyors.2 Four other surveying
firms in Alaska were subject to the same labor agreement.
The labor agreement provided for an exclusive hiring
hall, to be run by Respondent. with job applicants to be
dispatched from the out-of-work lists "in successive order
as their names appear on the list[sj." A stated exception to
the first-in, first-out order of dispatch was this: "The Job
Steward may be the first person hired and/or dispatched at
the Union's discretion." Another stated exception was that
persons having specified prior experience with a requesting
employer were entitled to dispatch "without regard to the
requested person's place on the list."
Surveying activities in Alaska abate during the winter. In
January and February 1977, however, Respondent did dis-
patch some surveyors to the five firms subject to its hiring
hall. By mid-February, between 80 and 100 had been dis-
patched, including 7 to OT. All had been requested by
name, based on previous experience with the requesting
firms: and Respondent had made no steward designations
from among them.
On or about February 20, in an unprecedented move,
one of Respondent's business agents, Robert Mitchell,
asked four of the firms. 01' among them, if, when they next
needed a survey crew they either would include one "open
call" in the request so Respondent could dispatch a person
of its choosing to be steward) or would advise him in ad-
vance whom they would want dispatched so he could in-
vestigate their suitability to be stewards. Another business
agent, Bruce Dove, made a similar request of the fifth firm.
Of the five, only OT objected. Its chief of surveys,4 Richard
Davis, questioned Respondent's right to intrude on the hir-
ing process in this fashion. Mitchell defended by citing the
steward-preference clause in the labor agreement.
On or about February 25. during a prejob conference in
anticipation of the spring buildup on the pipeline, Mitchell
and I)avis again clashed, Mitchell asserting Respondent's
right to dispatch people of its choosing to be stewards and
Davis opposing.
On February 28. OT asked that Respondent dispatch
three named people to work under the Alyeska contract
David Lowery, to be a party chief: Chris Lampe, to be an
instrument man: and Armand Sanders, to be a chainman.
All had the requisite experience with OT to be requested by
name. Respondent dispatched Lowery and Lampe on
March I, but sent one Paul Sweet, as a steward-designee,
I ilih l .lhl : a lll iciit sed the term "technica; l engineer," rather Ihan
surc,C ls' 1 rIh tLccord establishes thai theC aire sto,nr niolu s
N siures rc. tiie coincerning hen. if eser. I.ampe made iuth . ri
rI.lrk tithell perhlaps dire, the Inference ahen. during the pendernt if
()1 ', reiiuesi for I.Lamp .M trchell asked thai he step aside to enable Respon
denit h, dlpr.t.ch rneMont e of its, choice t,, he xte, .ard Mitcheil bh;cked Ihi,
itth Ith aiCrtl i that I Ampe ltted II to the t nion. primpting I.ampe to
taite thli he ot'c Ihhe i ntln rnlhinge
(if Snd.lcr, M:tihe!l testificd "i didn't knots the man peroiniall'. didn't
knotu h1i fcclni, one i a.\ or the other" Of Palul en he teslifilcd I didn't
kn,) SiMr 'P.ul,cn I haid nolhin .ig.tlnt hint. he seemed qilte and reersed
I di'l kn,, , if hc Lkne, I ani thin Aihoult he tcontracl.
1393
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Co(nclu.Vion.
It is concluded, in the circumstances, that Respondent's
insistence on dispatching persons of its own choosing to be
stewards, and its attendant refusals to dispatch Sanders.
Paulsen, Stone. and Grinager, violated Section 8(b)( )(A)
and (2) substantially as alleged.
In Dairvlea Cooperative Inc.. 219 NLRB 656 (1975). the
Board held that grants of superseniority to stewards for
purposes other than layoff and recall are "presumptively
unlawful and the burden is on the Union to rebut the pre-
sumption." 219 NLRB at 659. The Board's reason for ex-
empting layoff and recall situations from the scope of the
adverse presumption is the desirability of "encouraging the
continued presence of the steward on the job," which con-
tinuity "furthers the eltfective administration of bargaining
agreements . .. [andl . . . thereby not only serves a legiti-
mate statutory purpose but also redounds in its effects to
the benefit u' a;; unit employees." 219 NLRB at 658.'
In the present case, although the incidents in question
arose from OT's efforts to obtain the dispatch of former
employees, it is doubtful that these were recall situations
as opposed to new hire-within the contemplation of Dai-
rylea. But even if they were, the rationale for exemption
from the adverse presumption does not fit Respondent's
actions. It plainly was not acting out of a concern for the
prolonged presence of "ihe steward on the job" (emphasis
supplied) when insisting on the dispatch of persons of its
choice to be stewards. Indeed, while Mitchell testified at
length of his criteria for steward selection, he did not so
much as hint that a would-be steward's background with a
given employer, as a steward or otherwise, is a consider-
ation. The record intimates, moreover, that none of those
Respondent sought to place as steward with OT had ever
before served in that capacity with that firm. It follows that
the adverse presumption of Dairylea, and not the exception
encouraging steward continuity in layoff and recall situa-
tions, applies in this case.
Citing Ashley, Hickham-Uhr Co., 210 NLRB 32 (1974).
Respondent contends that its conduct was permissible, ad-
verse presumption or no. In that case, the Board de-
termined that a union had not violated the Act by insisting
upon the dispatch of a person whom it wanted as steward,
even though a previously-hired employee had to be laid off
as a consequence. The Board reasoned that, because of a
likelihood of jurisdictional disputes, the union had a "legit-
imate and valid concern for placing an experienced stew-
ard on a potentially troublesome jobsite." 210 NLRB at 33.
Respondent, however, has made no showing of potential
difficulty comparable to that in Ashley, Hickham-Uhr. On
the contrary, Mitchell characterized Respondent's prob-
lems with OT as "minor" and "no different than [those
with] other companies." Further, Mitchell admitted that he
See also Otis Elevator (normpani. 231 NlRB 1128, 1131 l1977). 'larAr
Hannifin (Crporraton. 231 NLRB 884, 885 (1977): iUnlird f.hIctrualt R1b,i,
and Machine Workers of America, l.oal 62.1 (l.imlpto SIfg ( ,, i. 230 N I RI
406. 408 (1977): Chauffeurs. Teanrmners and Helper l.ocasl t ni,,, Ns,, 56 (d
NVei Hampshire. a ;;; Teamsterv (Interstatre tfi or F retghl Sis Icno,j 231)
NL.RB 81, 82, fn. I ( 1977): Union C(arhrde ('orporlhio,s ( hin ai anrd'si. t,,
Operations Division, 228 NL.RB 1152. 1153 (1977): Itr,?tial Scrrit Phini ,i
NSezx Jersei. 227 Nl.RB 585, 586 (1976)
did not know, when he first asked OT's cooperation in the
dispatch of a steward to OT's next crew, what that crew's
circumstances might be. Mitchell did testify of a suspicion
or rumor that OT would seek to circumvent the hiring
hall in manning sonre of its crews, the implication being
that stewards of unquestioned union fealty were needed to
deal with that possibility, but this testimony was lamenta-
bly vague. palpably self-serving, and altogether unconvinc-
ing.
Respondent argues that Alaska's vastness and the con-
comitant remoteness of some jobsites, coupled with some-
times-primitive communications facilities, an inhospitable
climate, treacherous wildlife, etc., carry a potential for
trouble sufficient in themselves to require that its stewards
have special attributes of body, heart, and mind, and thus
to warrant its having complete control over their selection
at the point of disp itch. This is rejected as after-the-fact
rationalization. Respondent saw no need to exercise such
control in the preceidng years of far heavier surveying ac-
tivitv, and Mitchell could recall no instances of inadequate
performance by OT's stewards. Mitchell conceded, in addi-
tion, that Respondent does not deem stewards necessary in
many, many areas"- even on some sites "two thousand
miles awas. " "
Nearer the mark than Ashkl r, Hickham-- Uhr is Local
ULnion 798 o/ [' a.rscau CountY, New York, Brotherhood of
Paintcr. anid Allied Tradees, A . (-C0 (Nas.csau Division of
the Master Painter.s As.socialion of Nas.sau-Suffolk (Counties
Inc., el al., 212 NLRB 615 (1974). It involved a union's
insistence upon a contract clause requiring employer-par-
ties to the contract to hire union-designees as stewards, as
opposed to their being appointed from the employer's reg-
ular crews. In terms equally pertinent to the present case.
the Board concluded that the union's conduct was unlaw-
ful:
[T]he Respondent herein has impinged on the em-
ployment relationship in a manner irrelevant to legiti-
mate union interests. Whilc Respondent has legitimate
interests in appointing stewards and policing con-
tracts, we do not here find legitimate justification for
the insisted-upon union control over the hiring pro-
cess. Any failure of stewards who were already em-
ployed to enforce the trade agreements could surely be
controlled by appropriate union training or, if neces-
sary, by internal union discipline of stewards who
failed to perform responsibly. We see no compelling
reason whs Respondent required control over the hir-
ing process in order to maintain proper employee rep-
resentation. 1212 NLRB at 617. 1
Distinguishing Ashleyv. Hickham--Uhr, the Board stated.
again in terms as appropriate to the present case as to that
then before it:
The union [in Ahhley, Hickhanm bUhrj did not vio-
'AIl, relcited is Replondent's argument thai its coinduet .as julifieed bh
the cnltl. in Augusi 1976, of an order b the t niloled Siale. I)istrlct ( our.
I)i m.t of A laska enjosi lng it fronm disregardin an airblnrah,,r
'
,s order I,,
ie e prCeli tl ll l r p:preline proIect silte in ; alde., ; l ihe southern iernmimtu s
f [h. pipe l inc. t on11 , o.ther prolect ite The record gs.e, ri, hbist. for
sLiplossiSg that Itllis carried ;l sigifltic;lnt plotelltlll Of affecting the respownsi
bhiliiic' off Ricpondcnt' te;,slrds ermplosied ho (O)
!394
TEAMSTERS LOCAl. 959
late the Act by requiring the employer to hire a stew-
ard and lay off an employee because the union had a
"legitimate and valid concern for placing an experi-
enced steward on a potentially troublesome jobsite."
The steward was specified by name to deal with a spe-
cific jurisdictional problem. In the instant case, the
Respondent has not sought to place a particularly
knowledgeable steward on a troublesome jobsite or
with a particularly difficult employer, but has sought
blanket hiring preference on every job for an entire
class-i.e., all persons designated solely by the Union
to serve as stewards. [212 NLRB at 617, fn. 3.]
See also Building Material, Truck Drivers, Chaufjeurs. and
Helpers, Local No. 282, Teamsters (Esplo, Inc. , 229 NLRB
347, 351 (1977).
In sum, Respondent has failed to overcome the adverse
presumption that accompanied its insistence upon dispatch
preference for those it wished to install as stewards. It
therefore violated Section 8(b)(l)(A) and (2), both by that
insistence and by its companion refusals to dispatch San-
ders, Paulsen, Stone, and Grinager.
CON(It sIONS OF LAW
1. By insisting that dispatch preference be given to those
it wished to install as stewards, and by its accompanying
refusals to dispatch Armand Sanders, George Paulsen,
Barton Stone. and Dale Grinager, all as found herein, Re-
spondent caused OT to discriminate against employees be-
cause of union membership or activities in violation of Sec-
tion 8(a)(3), and thereby itself committed unfair labor
practices within Section 8(b)(I)(A) and (2) of the Act.
2. These unfair labor practices affect commerce within
Section 2(6) and (7 of the Act.
[Recommended Order omitted from publication.]
1395