Wharf and Dock Builders, Local 454

National Labor Relations Board - Board Decisions

Mar 14, 1972

195 N.L.R.B. 896 (N.L.R.B. 1972)

896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wharf and Dock Builders Union , Local Union #454
and James P. Keenan . Case 4-CB-1835
March 14, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
On December 21, 1971, Trial Examiner Phil Saun-
ders issued the attached Decision in this proceeding.
Thereafter, the Charging Party filed exceptions and a
supporting brief, and the Respondent filed a brief in
answer to the Charging Party's exceptions.
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 Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions' and to adopt his
recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that the com-
plaint herein be, and it hereby is, dismissed in its en-
tirety.
' We hereby correct the following inadvertent error in the Trial Ex-
aminer ' s Decision : In the second paragraph under "Conclusions" the dates
should read November 13, 1970, to May 13, 1971, rather than November
17, 1970, to May 13, 1971.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PHIL SAUNDERS , Trial Examiner : The complaint , issued
on June 30 , 1971,' alleges that the Respondent Union en-
gaged in unfair labor practices within the meaning of
8(b)(1)(A) and 8 (b)(2) of the Act. Pursuant to notice , a hear-
ing was held before me in Philadelphia , Pennsylvania, on
September 23 and 24 ; all parties were afforded full oppor-
tunity to call, examine , and cross-examine witnesses, and
thereafter to submit briefs.
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
The Wharf and Dock Builders Association of Philadelphia
and Vicinity , herein called the Association , is an employer in
both Pennsylvania and New Jersey , and is authorized by its
employer-members to act as bargaining representatives in
negotiating collective -bargaining agreements with Respond-
ent Union . During the past year , the Association and its
employer -members, in the course and conduct of their busi-
' All dates are 1971, unless specifically stated otherwise.
195 NLRB No. 162
ness operations , purchased goods and materials valued at in
excess of $50,000 from firms located in States other than their
own, and performed services valued at in excess of $ 50,000
in States other than their own . The Association and its em-
ployer-members are , and have each been , employers engaged
in commerce within the meaning of Section 2 (6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
Wharf and Dock Builders Union, Local Union #454,
herein the Respondent Union or Local 454, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
For many years the Association has had a succession of
collective-bargaining agreements with the Respondent Union
-a local union of the Metropolitan District Council of Phila-
delphia and Vicinity of the United Brotherhood of Carpen-
ters and Joiners of America-and the current collective-bar-
gaining agreement between the Association and Local 454 is
effective for the 5-year period from June 1, 1968, to May 31,
1973,2 but the only provision in the current contract with
reference to an employer contacting Respondent Union con-
cerning employment vacancies is article XI, section 3, and
which states the following:
(a) The parties of the second part will attempt to furnish
qualified personnel to the Employer, within forty-eight
(48) hours, Saturdays, Sundays and holidays excepted,
after receipt by the parties of the second part of a request
from the Employer for workmen. It is understood, how-
ever, that the Employer may also hire such other qua-
lified personnel as may be required for his work.
The parties agree that the above hiring provision in the
contract does not establish any form of "hiring hall," and
further agree that frequently employer-members of the As-
sociation call Local 454 for employees in hopes of getting the
most skilled men. There is also agreement between the parties
that at certain times the Respondent Union is not able to meet
the number of men required by the various employers of the
Association, and under such conditions the members of the
Association hire employees to perform wharf and dock build-
ing work by recruiting men from a variety of other sources.
Specifically, the complaint alleges that on or about March
1 and on or about May 4 the Respondent Union, through its
Business Agents Harry (Whitey) Anderson and William
(Jack) Gushue, failed and refused to refer and otherwise
properly assist the Charging Party, James Keenan, in secur-
ing employment with employer members of the Association
because of arbitrary, discriminatory, or bad-faith considera-
tions.
Basically, the General Counsel takes the position that Kee-
nan made known his availability for work as a dock builder
on several occasions, but was told that there was no work
available; yet, during the same periods, the Respondent
Union referred other of its members to available jobs, and in
particular the General Counsel points to the U. S. Steel job
in Morrisville and the Raymond Concrete job.' Local 454
maintains that it does not operate any hiring hall-formally
or informally-that the employers in the Association do most
of their own hiring, but whenever any request from an em-
Resp. Exh. 2.
The General Counsel further maintains that as long as there is any
hiring arrangement, even voluntarily undertaken, between Local 454 and
the employers involved, Respondent Union's failure to refer Keenan to such
employers restrains and coerces him, for having once undertaken the obliga-
tion of making some referrals, however few, Respondent Union also obli-
gates itself to pursue this practice without discrimination.
WHARF AND DOCK BUILDERS , LOCAL 454 897
ployer was known it was passed on to Keenan the same as it
was passed on to anyone else.
The General Counsel produced background testimony
through Keenan to the effect that he has been a member of
the Respondent Union for 20 years, and in 1962 he ran unsuc-
cessfully for office as business agent against Harry Anderson
and William Gushue (Anderson and Gushue are also the
present business agents for Local 454). Keenan testified that
during the 1962 preelection period, Anderson made the state-
ment at a union meeting that Keenan would never work at
dock building so long as he was business agent , and testified
that prior to this period he had received all of his dock
building jobs and referrals for carpentry work through the
business agents of Local 454. Keenan also stated that the jobs
here in question are controlled by the business agents of Local
454 and that 95 percent of the men receive their jobs through
the business agents.
Keenan further related that it was not only the fact of his
running against Anderson and Gushue that lost his source of
jobs through Local 454, but during the preelection period in
1962 he also campaigned against the Secretary-Treasurer of
the District Council, of which Local 454 is but one Local, and
on the basis of his statements that two of the Secretary-
Treasurer's assistants were Local 454 officers who had cov-
ered up shortages and corruption in the Respondent Union,
he was brought up on "charges" just a few weeks before he
lost the election for business agent. It appears that Keenan
was then fined and barred from attending meetings, but even-
tually was successful in getting the charges dismissed by ap-
pealing to the office of the International President. Keenan
filed a suit under certain provisions of the Landrum-Griffin
Act against the Metropolitan District Council of which Local
454 was a constituent member, as aforestated.
From 1966 through the middle of 1970, Keenan worked
with the Sprinkler Fitters Union, but in October 1970 he
decided to return to Local 454 in an effort to get some dock
building work because he had heard a rumor that anyone
away from dock building for 2 years would lose all previously
earned pension benefits.
On or about October 15, 1970, Respondent Union' s Busi-
ness Agent Anderson informed Keenan that the only work he
had available was a possible job with Steers and Kiewit Com-
pany. Keenan was then successful in getting this job and
worked for Steers continuously until January 15.
At a union meeting on January 15, Business Agent Ander-
son announced that "things are a little slow but there's
enough work for all the book men. Anybody that's out of
work, come and see me." After the meeting Keenan told
Anderson he had just finished with the Steers job and was out
of work, and Anderson then called over a foreman named
Andy Roach and told him that Keenan would start working
with him on Monday and to "layoff a permit man and put
him to work." As a result of the above, Keenan worked for
Buckley and Sons from January 18 until February 23.
On February 24, Keenan went down to the union hall and
informed Anderson he was looking for work, and Anderson
took down his name and phone number. The next day he
returned to the Hall and Business Agent Gushue then asked
him, "How about going over to Kauffman's job at Delair?"
Keenan worked at Kauffman Construction until March 1,
when a laborer's picket forced the job to close, and he then
notified Gushue of this development and that he was out of
work.
Keenan stated he then waited at home for a week or so, but
on March 8 he went to the union hall and Anderson told him,
"I'm trying to get hold of the Spencer-White job there. I'll let
you know how I make out." On March 9, Keenan started
working at Spencer, White & Prentis and continued there
until April 23.'
Keenan testified that after he finished his work on the
Spencer-White job he waited around for a week, but on May
4 and 5 he went down to the union hall looking for work and
on both occasions Business Agent Gushue informed him
there was no work available. Keenan further related that at
a meeting of Local 454 on the evening of May 5, another
member of Local 454 told him that earlier in the day Gushue
had been around looking for men to work on a job for Ray-
mond Concrete at the Philadelphia Gas Works. On May 6
Keenan went to the Regional Office of the National Labor
Relations Board and spoke to someone there who advised
him that the best way to work out his problem was with the
business agent . Keenan returned to the union hall on Friday,
May 7, but Gushue again told him there was no work availa-
ble. Keenan then informed Gushue he had gone to the Labor
Board, and Gushue told Keenan to go ahead and do what he
wanted, and that there were 40 men out of work, "and you're
the forty-first."
On Monday morning , May 10, Keenan went directly to the
Raymond Concrete jobsite, and he testified that at 8 o'clock
20 "book men" from Local 454 were hired by Raymond
replacing men who had been working on "permits." Among
the book men hired was "John Szumski 's son," whom Kee-
nan had seen speaking with Gushue at the union hall on May
4. Keenan then put in a phone call and informed Anderson
about these hirings at the Raymond Concrete site and asked
Anderson, "Where did all of these men come from when
there was no work available on Friday when I was at the
Union Hall?" Keenan also mentioned to Anderson that he
had already contacted the National Labor Relations Board.
Anderson first replied, "do as you please," and told Keenan
they had already sent too many men down to the Raymond
job, but then asked him if he wanted a job. Keenan's reply
was "What do you think I've been ... going to the Hall for?"
Anderson then told him to see Ray Canew at the J. E.
Brenneman yard. Keenan did so, was hired and is still work-
ing at this job.'
The General Counsel maintains that on or about March 1,
the Respondent Union should have referred Keenan to Bren-
neman 's U. S. Steel job at Morrisville, Pennsylvania, because
this job was hiring men and Keenan was out of work from
March 1 to March 9. The General Counsel introduced tes-
timony through Patrick Lewis to the effect that he had heard
rumors about hirings at the U. S. Steel job in Morrisville and
called Anderson to find out if these rumors were true. Lewis
testified that Business Agent Anderson then suggested to him
that he go up to the jobsite. Lewis was hired on March 4, and
since it was an emergency job he worked 12 hours a day-
7 days a week. John Cole received a call at his home from
Anderson inquiring if he wanted to work on the U. S. Steel
job, and was then hired on March 4. Cole was still working
on another job when he went on the U. S. Steel project.
Nathan Bewley was also called by Anderson and told to
report to the U. S. Steel job and was hired on March 9. John
Lapiska heard that men were being hired on the U. S. Steel
job so he called the union hall to verify if they needed welders
and Anderson told him to go up to the job and find out for
himself. He was hired on March 9. William McLean asked
Anderson about the availability of work on the U. S. Steel job.
He was initially told there was probably nothing available,
but Anderson then called him at home and told McLean that
On May 1 the Philadelphia Operating Engineers struck many employ-
ers in the area and the strike lasted for several weeks.
' This Brenneman job is known as the "Esso" job and is not to be con-
fused with the Brenneman U. S. Steel job.
898 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD
if he "wanted to take a chance" he could go up to the jobsite.
He was hired at this job on March 9 as a welder. James
Snyder had also heard rumors about possible work on the U.
S. Steel job and called the union hall to get further informa-
tion . Anderson then told Snyder to go up to Morrisville "and
see if they are hiring." Snyder was hired on March 4 and did
dock building work . John Smith was down at the union hall
and in talking with both Anderson and Gushue mentioned
that he was interested in the U. S. Steel job because it was
close to where he was already working. He was then told,
"Well, you can go up and try." He was hired on March 4.
The General Counsel also contends that the Respondent
Union should have referred Keenan to the Raymond Con-
crete job during the May 4 to May 10 period as Keenan was
out of work during the time while other man from Local 454
were referred.
William J. Glishue, the son of Business Agent Jark Gu-
shue, was told -by his father that men were going down to
Raymond for jobs on May 10 and he should go if he wanted
to "take a shot at it." Young Gushue was hired on May 10.
William Walsh went to the union hall, inquired about 'the
availability of a job , and was told by one of the business agents
that the Raymond job was working and it "was possible" that
if he went to the jobsite he would be hired. Walsh also went
to work for Raymond on May 10. John Smith was out of
work and went to the union hall on May 7. Gushue told him
to go to the Raymond job for work, and he was hired the same
day. Frank McAneny knew about the Raymond job because
his home is in the area where the work was being done.
McAneny stayed around the union hall for a few days until
a business agent for Local 454 told him to go up and "take
a shot at it" and if there was a job "maybe" he would be hired.
McAneny was then hired on May 10. Harry Ellis was told by
a business agent at the union hall on May 7 that there was
work available at Raymond and that Ellis should go up to the
job and inquire. He did so on May 10, and was hired.
Raymond 's general superintendent , Richard Senchak,
stated that his employer started out this particular job with
their own crew, and then , as the work progressed, hired men
who were well known to them from past experiences, but in
situations where Raymond was still short of help , they would '
then call the union hall. Sanchak testified that the number of
men on this job from Local 454 varied from 4 employees to
30 employees.
The General Counsel called Business Agent Gushue and
solicited testimony from him to the effect that it is the busi-
ness agent's , responsibility to inform the members about the
availability of work and in so doing he will call them at home
or speak to them while they work on other jobs . Gushue said
that the agents are made aware of job openings through calls
to them from various companies or by their constant policing
of the jobsites within their jurisdiction . Gushue said that in
some months they would get as many as 50 calls from em-
ployers asking for men , but during other months they would
receive only 5 to 10 calls. Gushue also testified that some of
the members of Local 454 would specify certain particular
jobs they wanted , said that some men wanted breaks or vaca-
tions between jobs, that no written lists of records of any kind
are kept of men seeking work, and said that on occasions
when he received calls he would send whoever was then
present at the union hall: Gushue went on to state that senior-
ity plays no part in referring members to jobs and that he also
refers men to companies not members of the Association.
Gushue admitted that, during the periods in question, Bren-
is of such an intermittent nature that procuring a succession
of jobs becomes very important.
In his brief the General Counsel concluded his argument
by stating that Anderson and Gushue ignored Kennan's work
requests because of the Respondent Union 's animus toward
him-from the initial threats in 1962 through charges, law
suits, and failures to refer-right up to silencing him during
a meeting in August 1971, for pursuing N.L.R.B . charges.
Conclusions
This record clearly reveals that the referral system here in
question operates with great flexibility , and the sources from
which employers obtain workers are many and varied. More-
over, this record further shows that on numerous occasions
the employer himself will control virtually all of the hirings,
and this appears to be in accordance with the related contrac-
tual provisions between the parties , as previously set forth
herein.' But when members of Local 454 do obtain informa-
tion or hear rumors about possible jobs openings they fre-
quently contact the Respondent Union to see whether or not
the information is true . Furthermore, if agents of Local 454
know that a particular employer is in need of employees they
then relay this information to its members and to those who
have inquired about possible jobs.
The two main instances and intervals relied on by the
General Counsel must also be viewed in relation to the fact
that from November 17, 1970, to May 13, 1971 , Respondent
did inform Keenan of five different job opportunities, as fully
detailed earlier herein , and notwithstanding labor tie-ups and
unemployment during this period , Keenan, nevertheless, did
obtain five different jobs as a result of the information which
Anderson and Gushue passed along to him.
Turning now specifically to the Brenneman U. S. Steel job.
Instead of being referred to this work, Anderson told Keenan
about the job with Spencer, White & Prentis where Keenan
was hired and worked until, April 23. It is true that Nat
Bewley was referred by Anderson to the U. S. Steel job, but
Bewley testified that the foreman on this job, Herb Danner,
had specifically asked Anderson for him . John Cole stated
that, while he had not checked on the U. S. Steel job prior
to being called , he had worked for Brenneman on many
occasions and said that he and Foreman Herb Danner always
got along very well together.
John Lapiska and William McLean inquired about the
possibility of working on this job and were both welders.
Other witnesses testified they had heard about this job and
then called the union hall. Furthermore , it appears that the
job openings at U. S. Steel were a matter of common knowl-
edge. General Counsel's own witness, James Snyder, stated
that the U. S. Steel project was'an emergency job and because
of this fact "everybody" would hear about it. Robert Kelly,
counsel for the Association, testified:
If there is any man who worked as a wharf and dock
builder in the eastern half of Pennsylvania and the state
of Delaware and the state of New Jersey who didn't
know about the U . S. Steel job, he must have been criti-
cally ill at the time .. .
We were, I think , hiring everybody . I think we hired
a lot of people who had never been wharf and dock
builders ...
From this testimony it is reasonable to assume that Keenan
must have known about the U. S. Steel job , but never made
any specific inquiry about it. Moreover, had he so desired he
neman's superintendents on the U.S. Steel job and Ray- 6 Many members do not make any contact with the Respondent Union,
mond's superintendent called on various occasions and told but instead they go directly to an employer 's jobsites and obtain information
him they needed men He also admitted that work of this kind and/or employment strictly on their own
WHARF AND DOCK BUILDERS, LOCAL 454 899
could have gone directly to the jobsite and he would have
been hired. In the final analysis, Keenan did not go near the
union hall or contact Local 454 until March 8, and starting
on the very next day Anderson secured a job with Spencer &
White for him.
Keenan stated that he went to the Union Hall on May 4,
5, and 7 and at which time Gushue told him there were no
job openings, but testified that on May 10 he observed "book
men" from Local 454 being hired by Raymond Concrete on
the Philadelphia Gas Works job, as aforestated.
Initially, this situation from April 23 to May 11 must be
viewed with the additional understanding that, at a union
meeting in the early part of May, Keenan specifically asked
Gushue some question relating to his home and procedures
to follow in the raising and repair of his kitchen floor. Gushue
stated that because of these circumstances he assumed, Kee-
nan was not looking for work during the few weeks here in
question. Other members of the Respondent Union hired by
Raymond heard about this job in one way or another and
then specifically made inquiries at the union hall about this
particular work because it was of some special interest to
them-for instance McAneny and Walsh lived in the area.
Prior to May 10 there is no evidence in this record that
Keenan even asked to be considered for this job even though
he had known about it ever since the union meeting on May
5, as aforementioned. It is also noted that when Keenan went
to the union hall on May 4, 5, and 7-there were other men
at the hall also looking for work, and certainly it is conceiva-
ble that business agents might not have remembered to con-
tact each and every man, especially when there are no written
list of names or other procedures to follow.
General Counsel refers to the work at U. S. Steel and at
Raymond Concrete as "premium" work, while maintaining
that the jobs to which Keenan was referred were unsuitable
in many respects and were not the normal jobs which dock
builders prefer. Keenan stated that on the Steers job he was
working at 140 feet by the time he left and that on the Spencer
job he had the "bull work," and he said that on his present
Esso job and ,others the crews were short-handed, which
made the jobs more difficult for those working . However,
other than the contention by the General Counsel that the
two jobs in question were "premium," and the above tes-
timony by Keenan as to what he did on the jobs he worked
-there is nothing in this record, other than very broad work
categories or classifications, which actually reveal the precise
type of duties and risks involved on the Raymond and U. S.
Steel jobs.
In the final analysis, this record fails to support the conten-
tion that there existed personal animus toward Keenan on the
part of Business Agents Gushue and Anderson. As has been
pointed out, during the critical periods Keenan was given
work availability information which resulted in five jobs for
him. Furthermore, when Keenan was at one time,fired from
his job with Spencer, White & Prentis, the Respondent Union
interceded on his behalf and Keenan was returned to his job.
Finally, Keenan received information about his present job at
Brenneman Esso at the same time as Business Agent Jack
Gushue's nephew received the same information. Keenan
obtained a job when he went to the jobsite, but Gushue's
nephew did not.
Since a preponderance of the probative evidence does not
establish that the Respondent Union committed any unfair
labor practice-I will recommend that the complaint be dis-
missed.
CONCLUSIONS OF LAW
1. The, Association and its employer-members are engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. The Respondent Union is a labor organization within
the meaning of Section 2(5) of the Act.
3. The Respondent Union has not engaged in unfair labor
practices alleged in the complaint.
RECOMMENDED ORDER
It is hereby recommended that the complaint be dismissed
in its entirety.