Intl. Union of Operating Engineers Local 302

National Labor Relations Board - Board Decisions

Apr 4, 1979

241 N.L.R.B. 737 (N.L.R.B. 1979)

INTL. UNION OF OPERATING ENGINEERS, LOCAL 302
International Union of Operating Engineers, Local
No. 302, AFL-CIO (Associated Sand and Gravel,
Inc.) and Clayton F. Kline. Case 19-CB-3100
April 4, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On September 20, 1978, Administrative Law Judge
David G. Heilbrun issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Counsel
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 and to
adopt his recommended Order, as modified.
The Administrative Law Judge found that Respon-
dent violated Section 8(b)(l)(A) and (2) by threaten-
ing Kline with reprisal unless he ceased working as a
screed operator, a job within the jurisdiction of the
Operating Engineers, and by demanding that the Em-
ployer remove him from that position on or about
September 20, 1977. While the record does not con-
tain evidence indicating exactly when certain inci-
dents occurred, such as when the jobs at Cle Elum
and North Bend began and ended, we agree with the
Administrative Law Judge's findings; however, we do
not adopt his rationale for the 8(b)(2) violations
In finding that the discharge of Kline violated Sec-
tion 8(b)(2), the Administrative Law Judge rejected
Respondent's defense that the Employer was obli-
gated to staff its jobs through the Union's hiring hall
as a pretext, and concluded that but for Kline's non-
membership in the Union, he would have continued
to work as a screed operator from and after Septem-
ber 20. To support his finding, he noted the Union's
acquiesence to Kline's employment as a screed opera-
tor from April when the hiring hall could not supply
I Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an Administrative Law Judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Drv Wall Products. Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
2 Respondent, in its brief, characterized the Administrative Law Judge's
Decision as "unartfully written." We agree that parts of the opinion are not
as clear as they might be.
a screed operator and the Employer said it would use
Kline,3 until shortly after his application was rejected
around July 5. He found, in effect, that because of the
continuing relationship between the Employer and
Kline that the Employer did not have to request a
screed operator on the new North Bend job. The Ad-
ministrative Law Judge did not explain, however, the
basis for his finding that the contract could be ig-
nored where there was a continuing employment rela-
tionship. The contract between the parties contained
a valid exclusive hiring hall clause with a 48-hour
provision; after which time, if Respondent did not
refer an employee, the Employer could hire whom-
ever it chose. Respondent's witness, Gulke, testified
that the work orders from the hiring hall showed that
on or about September 16, 1977, the Employer had
submitted a request for a screed operator which was
filled by the Union within the 48 hours required by
the contract. The Administrative Law Judge credited
this uncontroverted testimony. Thus, if the Employer
first submitted a request on the new job on September
16. it would appear that Kline was properly demoted.
But such was not the case because Lilly, the Em-
ployer's superintendent at North Bend, who was
credited by the Administrative Law Judge, testified
that Gulke telephoned him twice soon after Kline's
membership application had been denied4 and told
him that Kline's application had been rejected and
that he should be taken off screed work. Lilly agreed
to take Kline off, but he simultaneously requested
that Respondent send him another screed operator.
Lilly testified that "a month or two" elapsed before
the Union finally sent him a replacement for Kline.
The contract has no provision for "bumping" non-
hiring-hall hires but, as indicated, gave the Union 48
hours in which to fill the Employer's requests for
workers.
We, therefore, find that since Respondent did not
fill Lilly's initial requests for a screed operator within
48 hours, Kline was properly on the screed job, and
that his removal on or about September 20, at Re-
spondent's insistence, violated Section 8(b)(2).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and orders that the Respondent, International
Union of Operating Engineers, Local No. 302, AFL
' It was about this time, in fact. that a union agent was sent to the jobsite
in Cle Elum to sign up Kline; i.e .give him application papers to fill out. etc.
Kline submitted his application for membership on May 13, 1977.
4 The record indicates that the calls were made on July 5 and sometime in
August. according to the testimonies of Gulke and Lilly.
241 NLRB No. 111
737
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CIO, Seattle, Washington, its officers, agents, and
representatives, shall take the action set forth in said
recommended Order, as so modified:
1. Substitute the following for paragraph 2(b):
"(b) Make Clayton Kline whole for any loss of pay
suffered by reason of its unlawful conduct toward
him on or about September 20, 1977, with backpay to
be computed in accordance with F. W. Woolworth
Company, 90 NLRB 289 (1950), and interest as pre-
scribed in Florida Steel Corporation, 231 NLRB 651
(1977). See, generally, Isis Plumbing & Heating Co.,
138 NLRB 716 (1962)."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten employees with repri-
sals when they are lawfully working as operating
engineers.
WE WILL NOT demand that Associated Sand
and Gravel, Inc., remove persons from the posi-
tion of screed machine operator, solely because
they are not a member of this Union.
WE WILL NOT, as affected Clayton Kline, in
any like or related manner restrain or coerce em-
ployees in the exercise of rights guaranteed by
the National Labor Relations Act, as amended.
WE WILL compensate Clayton Kline for all
loss of pay suffered, with interest, beginning on
or about September 20, 1977, which is traceable
to our demand that he then be removed from the
position of screed machine operator at a North
Bend, Washington, jobsite.
INTERNATIONAL UNION OF OPERATING EN-
GINEERS, LOCAL No. 302, AFL-CIO
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge: This
case was heard before me in Seattle, Washington, on July
13, 1978, based on a complaint alleging that International
Union of Operating Engineers, Local No. 302, AFL-CIO,
herein called Respondent, violated Section 8(b)(1)(A) and
(2) of the Act by threatening Clayton F. Kline and Associ-
ated Sand and Gravel, Inc., herein called the Employer,
with reprisal and shutdown, respectively, and by demand-
ing on or about September 20, 1977, that the Employer
remove Kline from his position as an operating engineer
because he was not a member of Respondent.
Upon the entire record, my observation of witnesses, and
consideration of post-hearing briefs, I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
By virtue of membership in the Associated General Con-
tractors of America, Inc., the Employer is contractually
bound to secure qualified operating engineers (if available
within 48 hours of request) from an exclusive, facially non-
discriminatory hiring hall run by Respondent.' In the
course of roadbuilding and related operations, the Em-
ployer primarily utilizes operating engineer, teamster, and
laborer occupations. Clayton Kline has worked for the Em-
ployer since 1961, primarily as a laborer. On occasion over
the past several years, he has temporarily operated the
screed attachment to a road paving machine. The screed is
mounted at the rear of a paver and establishes depth and
slope of finished asphalt surface. The principal operator of
a paving machine is traditionally within the trade jurisdic-
tion of the International Union of Operating Engineers,
while other employees (beside the screed operator) perform
hand raking, dumping, and other functions as paving pro-
ceeds.
Kline testified that approximately 4 years ago, while op-
erating the screed, he was approached by Respondent's
business agent, Lee Gulke, who angrily ordered him off that
function, Gulke stated that if he did not get off and stay off
he would not be allowed to join Respondent. Gulke recalls
the conversation as originating with a casual remark as he
arrived at a job and saw Kline on the screed. Gulke recalls
further asking if Kline was "cleared" for this work, to
which Kline answered it was management's problem, not
his.
In the spring of 1977, Construction Superintendent Iver
Johnson was running a job for the Employer at Cle Elum,
Washington. He telephoned Respondent's hiring hall dis-
patch office for the locality to request a screed operator.
Advised that the order could not be filled, Johnson assigned
Kline to the work. Later that day a local business agent
came to the job and solicited membership application from
Kline. The application was processed along with initiation
dues payment and related application remittances as Kline
continued working the screed machine for several weeks.?
By that summer Kline had transferred to a highway job
the Employer was running at North Bend, Washington.
During July, Respondent's treasurer, John Murphy,
stopped by the job and, alluding to Kline's continual screed
work, said that it was going on "far too often," a situation
which would have to be corrected if it did not stop. In
August Murphy visited again, saying that Kline was not
allowed to operate the screed, and that the entire job might
be shut down if he persisted.
In early July Kline's membership application was re-
jected, and moneys paid (other than for service dues cover-
'The Employer maintains a place of business in Everett, Washington,
where it is engaged in the construction industry, annually grossing in excess
of $500,000 from its operations, while purchasing goods and materials valued
at $50,000 directly from suppliers located outside Washington. I find the
Employer to be engaged in commerce within the meaning of Sec. 2(6) and (7)
of the Act, and that Respondent is a labor organization within the meaning
of Sec. 2(5).
l All dates hereafter are in 1977, unless otherwise indicated.
738
INTL. UNION OF OPERATING ENGINEERS, LOCAL 302
ing workweeks as an assigned screed operator) were re-
turned. The specific reason for rejection, as testified to by
Respondent's secretary, Frank Polsak, was that at the time
of formal consideration Kline was not working within Re-
spondent's bargaining unit. Gulke soon telephoned General
Superintendent John Lilly twice to state that Kline's mem-
bership application had been rejected, and that he should
be taken off screed work. Lilly acquiesced to this, and he
simultaneously requested another operator who was even-
tually supplied from the hall. Gulke's version of these con-
versations is that he advised Lilly of Kline being neither
registered nor dispatched from the hall for which, conse-
quently, Lilly should put in an order. Gulke expressly de-
nied requesting the removal of Kline as a screed operator
during these conversations which participants agree last oc-
curred in August or September. Respondent's records show
that a replacement was dispatched to the North Bend job
within 48 hours of an employer request around September
20 for a screed operator. After this incident the Employer
demoted Kline to lower paying work as a laborer.
General Counsel theorizes that Respondent had neither
occasion nor interest in triggering its hiring hall mechanism
for the North Bend screed operator work except as a pre-
text to disadvantage Kline for chronically absorbing work
of its trade jurisdiction while he was not a member.'
Respondent contends the law of this case follows hiring
hall principles as enunciated by the U.S. Supreme Court in
N. L.R.B. v. Local 357, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America
[Los Angeles-Seattle Motor Express], 365 U.S. 667 (1961).
It is argued that the Employer disregarded its obligation to
staff the North Bend job through the hall, although re-
quired to do so. I reject this defense as there is sufficient
evidence to show its pretextual nature; but for Kline's non-
membership in Respondent, he would have continued from
and after September 20 as a screed operator without inci-
dent. This is adequately clear from the fact that no attempt
was made to rehabilitate the Employer's claimed breach
until the point in time of rejecting Kline as a prospective
member. Of coequal significance to the inferential factors of
the case is Lilly's testimony, which I credit, to the effect that
Gulke expressly demanded removal of Kline in terms of his
application having been rejected.' A a traditional mecha-
nism for funneling available construction workers to areas
of need, the hiring hall concept is well established at law
but implemented only through chosen language of a collec-
tive-bargaining agreement. Here a typical string of eligibil-
ity groupings is established, and numerous other procedural
details are necessary to its functioning set forth. However,
'Given the proviso to Sec. (b)XIXA). it is immaterial that Respondent's
reason for rejecting Kline when it did seems lame and illogical. He had, for
months preceding, been assigned work well within the trade jurisdictional
definition and was amply "qualified" (collective-bargaining agreement AP-
PENDIX "3"-Section I) in the Employer's eyes. Suffice it that Respondent
perceived its membership to be adequate under industry circumstances then
existing, or even that some lingering resentment against Kline surfaced dur-
ing its inner councils. On this point I expressly credit Kline over Gulke
concerning what was said 4 years ago. On demeanor grounds Kline's testi-
mony is more persuasive, and Gulke is otherwise contradicted in his memory
of various remarks by the sincere-seeming Lilly.
'Such a conversational exchange is not inconsistent with paving Foreman
James Knudson's uncontradicted testimony that around late August. by his
inquiry at the North Bend jobsite. Murphy answered cryptically as to Kline's
craft status with the remark. "let's just say he's on permit."
the fundamental variations in an ongoing employment rela-
tionship, as between Kline and the Employer, are not
treated in such detail as to say it must interpose on the
North Bend job to which Kline relocated during a course of
continuous service with the Employer. Such gaps need be
filled by further contract verbiage, or, should Respondent
choose or have chosen, by traditional declaration of recip-
rocal contract rights. What cannot be permitted is the suf-
fering of Section 7 violations under the guise of institutional
objective. Cases relied on by Respondent respecting this
ultimate issue, particularly United Brotherhood of Painters,
Decorators & Paperhangers of America, Local Union No.
487, AFL-CIO (American Coatings, Inc.), 226 NLRB 299
(1976), and Hellenic Lines Limited, 228 NLRB 1 (1977), are
readily distinguishable on their facts. Also cf. Local Union
No. 18, IUOE, AFL-CIO and its Agent, George E. Miller
(Earl D. Creager, Inc.), 141 NLRB 512 (1963); International
Union of Operating Engineers, Local 450, A FL-CIO (Hollo-
way Sand and Gravel Co.. Inc.), 222 NLRB 1213 (1976);
Shopmen's Local Union 455, International Association of
Bridge, Structural and Ornamental Iron Workers, AFL-CIO
(Simpson Metal Industries, Inc.), 237 NLRB 147 (1978).
Murphy did not testify, and the uncontradicted remarks
attributed to him are accepted as fact. General Counsel
successfully moved to withdraw paragraph 7 of the com-
plaint, leaving only as alleged independent 8(b)(1)(A) con-
duct, the threats of reprisal against Kline by Murphy. The
Knudson-Murphy exchange has significance to the com-
plaint, and only minimally so, as a harmonizing remark of
Respondent's agents given near a point in time that Kline's
application was rather arbitarily rejected. Accordingly, I
render as conclusions of law that Respondent, by threaten-
ing Kline with reprisal unless he ceased working as an oper-
ating engineer and by demanding his removal from that
position on or about September 20, has violated Sections
8(b)(1)(A) and (2), and 2(6) and (7) of the Act.
Disposition
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER'
The Respondent, International Union of Operating Engi-
neers, Local No. 302, AFL-CIO, Seattle, Washington, its
officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Threatening Clayton Kline with reprisal unless he
ceases to work as an operating engineer for Associated
Sand and Gravel, Inc.
(b) Demanding that this Employer remove Kline from
I In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Sec 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
739
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the position of screed operator because he is not a member
of Respondent.
(c) In any like or related manner restraining or coercing
employees in the exercise of rights guaranteed them in Sec-
tion 7 of the Act.6
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Notify Clayton Kline and Associated Sand and
Gravel. Inc., in writing, with a copy furnished to the Re-
gional Director for Region 19, that it has no objection to
Kline's employment as a screed machine operator, unless
and until such employment originates or continues at some
future time in violation of such job referral (hiring hall)
provisions as may be contained in an applicable collective-
bargaining agreement.
(b) Make Clayton Kline whole for any loss of pay suf-
fered by reason of its unlawful conduct toward him on or
about September 20, 1977, with backpay to be computed in
accordance with F. W. Woolworth Company, 90 NLRB 289
6 Although a fundamental violation is shown, the apparent past practices
of Respondent and unique narrowness of this case combine to show little
likelihood of continuing discrimination. On this basis, I decline to recom-
mend broad cease-and-desist language. See Local 90, Operative Plasterers
and Cement Masons' Inernational A sociations of the United States and Can-
ada, AFL CIO (Southern Illinois Builders Associatlon), 236 NLRB 329
(1978).
(1950), and Florida Steel Corporatrion 231 NLRB 651
(1977).
(c) Post the attached notice marked "Appendix" at its
business offices and all meeting halls wherever located in
the State of Washington. Copies of this notice, on forms
provided by the Regional Director for Region 19, after
being duly signed by Respondent's authorized representa-
tive, shall be conspicuously posted by it immediately upon
receipt, and be maintained by it for 60 consecutive days
thereafter, in all places where notices to members are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that notices are not altered, defaced, or
covered by any other material.
(d) Furnish to the Regional Director for Region 19
signed copies of such notice for posting by Associated Sand
and Gravel, Inc., if it is willing, at places where it customar-
ily posts notices to employees.
(e) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps Respondent
has taken to comply herewith.
* In the event that this Order is enforced by a Judgment 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 Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
740