J-M Co. Inc.

National Labor Relations Board - Board Decisions

Jan 2, 1969

173 N.L.R.B. 1461 (N.L.R.B. 1969)

J - M COMPANY, INC.
J-M Company, Inc. and Donald Parker, Interna-
tional Union of Operating Engineers, Local Union
No. 965, AFL-CIO and Donald Parker. Cases
14-CA-4580 and 14-CB-1645
January 2, 1969
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On September 30, 1968, Trial Examiner James F.
Foley issued his Decision in the above-entitled
proceedings, finding that the Respondents had not
engaged in unfair labor practices as alleged in the
complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in these cases, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
JAMES F FOLEY, Trial Examiner: These cases, Cases
14-CA-4580 and 14-CB-1645, were brought before the
National Labor Relations Board (herein called the Board),
under Section 10(b) of the National Labor Relations Act, as
amended (herein called the Act), 61 Stat. 136, 73 Stat. 519,
against J-M Company, Inc. (herein called the Respondent
Company or Company), and International Union of Operating
Engineers, Local Union No 965, AFL-CIO (herein called
Respondent Union or Union), on a consolidated complaint
issued April 18, 1968, and answer filed by Respondent
Company on May 9, 1968, and answer filed by Respondent
Union filed on April 29, 1968. The complaint is premised on
charges filed February 26, 1968, by Donald Parker, an
individual, and amended April 9, 1968.
1461
It is alleged in the consolidated complaint that Respondent
Company on January 20, 1968, in violation of Section 8(a)(1)
and (3) of the Act, refused, and continues to refuse, to recall
or reinstate employees Donald Parker and Billy Pate to the
positions of employment they held before being laid off
because Respondent Union attempted to cause and caused it
to refuse and continue to refuse Parker and Pate recall or
reinstatement because they were not, and are not, members of
Respondent Union It is also alleged in the consolidated
complaint that Respondent Union, in violation of Section
8(b)(1)(A) and 8(b)(2) of the Act, caused and attempted to
cause Respondent Company on January 16, 17, 18, 20, and
22, 1968, to refuse to recall or reinstate Parker and Pate to the
positions of employment they held prior to lay off because
they were not, and are not, members of Respondent Union.
Respondent Company denies the illegal conduct alleged
against it in the consolidated complaint, and also denies the
allegations that it is engaged in interstate commerce or in
operations substantially affecting interstate commerce within
the meaning of Section 2(6) and (7) of the Act, or that its
operations meet the Board's standards for its assumption of
jurisdiction, as alleged in the consolidated complaint Respond-
ent Union denies the illegal conduct alleged against it in the
consolidated complaint, and neither admits nor denies the
allegations in the consolidated complaint that Respondent
Company is engaged in interstate commerce or in operations
substantially affecting interstate commerce within the meaning
of Section 2(6) and (7) of the Act, or that Respondent
Company's operations meets the Board's standards for the
assumption of jurisdiction as alleged in the consolidated
complaint, and demands strict proof thereof.
A hearing on the consolidated complaint and answer was
held before me on May 28, 1968, in Quincy, Illinois. The
parties were afforded an opportunity to present evidence,
make oral argument, and file briefs. Briefs were filed by
General Counsel and each Respondent after the close of the
hearing.
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT COMPANY
Respondent Company, a Minnesota corporation formed in
June 1967, with principal office and place of business in
Keokouk, Iowa, and local office in Ursa, Illinois, has been
engaged since July 1967 in flood control protection operations
at Ursa, under a contract with the United States Army Corps
of Engineers at Rock Island , Illinois. The particular operations
are being carried out in an area included in the Indian Graves
Drainage District organized under the Illinois Drainage Act
Respondent Company's contract with the Army Engineers is in
the amount of $603,000 . From July to December 31, 1967, it
performed services with a value of $55 ,000, and made
purchases with a value of $35,000 During this period it
operated rented equipment brought in from Iowa and Minne-
sota at a rental cost of $10 ,000. By April 1968, it had received
$209,743 of the total amount due under the contract. From
January 1, 1968, to May 1968, its purchases had a cost of
$30,000 , and its rental cost for the Iowa and Minnesota
equipment amounted to $12,000.1
I These evidentiary findings are premised on testimony of Marvin
McCoy, president of Respondent Company, as a witness for General
Counsel and Respondent Company
173 NLRB No. 227
1462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I conclude and find that Respondent Company is engaged
in commerce within the meaning of Section 2(6) of the Act
under Article I, Section 3, of the Constitution of the United
States,2 and that its operations meet the Board's jurisdictional
standards for the assumption of jurisdiction 3
II THE LABOR ORGANIZATION INVOLVED
Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. Undisputed Evidence
Respondent Company and Respondent Union are parties to
a collective-bargaining contract between Associated General
Contractors of Illinois and Central Illinois Builders of the
Associated General Contractors (herein called Employer), on
the one hand, and Respondent Union on the other, effective
for the period April 1, 1966, to March 31, 1969 (herein called
the Contract) The Contract has a hiring hall provision and a
union shop provision.
The hiring hall provision provides that the Union shall
maintain a list of persons available for employment, that it
shall be the sole and exclusive source of referral of applicants
for employment, that it will not discriminate against persons
seeking employment either in the maintenance of the list or in
its referrals foi employment because of membership or
nonmembership in the Union, nor make selection of appli-
cants for referral in any way based on or affected by union
membership, by-laws, rules, regulations, constitutional provi-
sions, or any other aspect or application of union membership,
policies or requirements. The hiring hall provision also sets out
the requirements fora qualified applicant for referral, and a
procedure for referral
The applicant, to qualify, must have maintained a perma-
nent residence of 2 years in an area of 16 specified counties in
Illinois, or if not living in the area at the time of application,
must have had 2 years' permanent residence in the area, and
have left it only temporarily and have the intention to return.
The qualified applicant is listed on the referral list or register
according to his work record of length of service in the area of
the 16 counties with member contractors of Employer who are
parties to the Contract. He must re-register on the first
Monday of each quarter in the calendar year to retain his
position on the referral list or register.
The Union refers an applicant to a contractor member in
the order of his registration on the referral list or register who
is competent to fill the position sought to be filled, and who
has acquired the experience and possesses the requisite skills
for the position to be filled as specified by the contractor
member If qualified and competent applicants are not
registered the Union is to furnish such applicants to meet the
2 United States v Appalacian Power Co., 311 U S 377, 426. The
Federal Government has plenary jurisdiction with respect to its flood
control program and is not limited by state law or the requirement of
any governmental authority arising from state law or state soverignty
3 Siemons Mailing Service , 122 NLRB 81 , Ready Mixed Concrete &
Materials, Inc, 122 NLRB 318
4 The 16 counties includes Sangamon County in which is Spring-
field , Illinois, the location of the Union The 16 counties is the
jurisdictional area of the Union
requests of the contractor member from any source available
to it. If it cannot furnish qualified and competent applicants
within 24 hours after the request is made the contractor
member may secure them from any source available to it, and
furnish the Union within 24 hours the names and addresses of
the new employees The Union is required to refer to a
contractor member, pursuant to his request in writing to the
referral office, an applicant employed by him for at least 120
days in the above geographical area during the 18 months prior
to the date of the written request.5
The contractor members in requesting referral of applicants
inform the Union of the number of applicants to be employed,
the work to be performed, the location of the work project,
the nature of the construction, and such other information the
contractor members deem pertinent to the proper referral of
applicants by the Union The Employer and its contractor
members have the sole right to accept or reject, or to employ
or not employ, any applicant referred by the Union, subject to
the right of the applicant to invoke the grievance procedure set
out in the Contract
The Contract provisions dealing with referrals must be
posted by the Employer and its contractor members in places
where notices to employees and applicants for referral are
customarily posted, and the Union is required to post them
where notices to applicants for referral are customarily posted
The union shop provision in the Contract is in substance as
follows
The word employer includes all employers who, either
through associations of employees or by individual choice,
are signatories to the Contract
All employees of employers under the Contract shall be
or become members of the Union after 7 days following the
beginning of employment, as authorized by Section 8,
subsections (A)(3) and (F), of the Act.
Employees not members of the Union shall make applica-
tion for membership and start paying monthly dues and the
initiation fee after 7 days following the beginning of employ-
ment, and shall have 60 days following the signing, or the
making, of the application to pay the initiation fee in full and
any employee who fails to pay the initiation fee and start
paying dues as stated or to continue in good standing in the
payment of his dues shall be removed from the job upon
written notice from the Union. Applicant employees may
make partial or whole initiation fee payments at any time
during the 7-day period following the beginning of employ-
ment.
Nothing in the union shop provision precludes the Union
from assessing a service charge to all persons who utilize the
hiring hall facilities of the Union, which amount shall be
reasonably related to the pro rata-cost of maintaining these
facilities.
Article XII of the By-laws of the Union (herein called
By-laws) provides the following procedure for obtaining
employment for members
5 As stated infra, Business Manager Mayes testified that applicants
for referral are listed on a list or out of work board . Those satisfying the
permanent residence requirement are listed according to the work
experience they have had as employees of contractor members, which is
evidenced by a seniority number , and those not having the area
residence requirements but pay a permit or service charge are listed
below the permanent area residents in accordance with the day they
register as applicants for referral
J-M COMPANY, INC. 1463
EMPLOYMENT BOARD
Sec 1 There shall be only one out-of-work employment
board posted in this Local Union, and it shall be situated in
the Local Union Business Office in the Metropolitan Area
of Springfield, Illinois It shall be maintained at all times
and must be open for inspection by any member or
members at all times Members must sign an out-of-work
card or report by telephone and followed by mail or in
person when out of work.
Sec. 2 Any member accepting employment of any
nature which prevents him from being readily available for
work must report the fact to the Union office or be subject
to a fine and be held responsible for all telephone charges or
any other expense the Local is put to in locating the
member.
Sec 3 Method of Obtaining Employment. Members who
desire this Local to assist them in obtaining employment, if
such employment is available, must fill the following
requirements
1 Notify the Union Office in Springfield in person or
by telephone followed by mail.
2 He must be out of work.
3 He must be readily available for work. If he is to
be unavailable, he must notify the Union Office and will
be taken off the out-of-work board until he notifies
this office that he is available.
4. His employment must be terminated before re-
porting out of work.
From the time Respondent Company began operations at
Ursa, Illinois, in July 1967, until December 30, 31, 1967, it
had 12 employees assigned to it by Respondent Union, located
at Springfield, Illinois These employees were under the
supervision of a project superintendent by the name of Frank
Parker. On December 30 and 31, operations were shut down
because of frozen ground. The employees were notified on
December 30 or 31 of the shut down. They were paid the
following Thursday, January 4, 1968.
The project reopened on January 8, 1968. Frank Parker
resigned as superintendent during the shutdown Eugene
Robertson, who had been one of the 12 employees under
Parker, was appointed superintendent in Parker's place He had
been employed by Respondent Company for 2 months as a
mechanic and welder He was a member of Respondent Union
during the 2 months he was mechanic and welder, and
continued his membership while superintendent He became a
member of Respondent Union in 1956.6 On January 8,
Robertson recalled one of the employees who had worked
prior to the project closedown by communicating directly
with him, and not by contacting the Respondent Union In the
same manner he rehired two more on January 11, two more on
January 16, and two more on January 17
On January 16, 1968, Leo Stewart, the union steward
appointed by Respondent Union, told Robertson not to shift
the Monigan, a dragline, until he had contacted the Union One
operator of the dragline had been recalled, and was operating it
on the day shift Robertson intended to return its operation to
three shifts daily The other two operators of the Monigan
prior to the shutdown were Donald Parker and William Pate.
Parker, the son of Frank Parker, the former superintendent,
who at the time he was hired resided in Tennessee and never
had a permanent residence in the area covered by the Contract,
was a member of Local 234, Des Moines, Iowa, of Interna-
tional Union of Operating Engineers, AFL-CIO, but not of
Respondent Union Pate, who at the time he was hired resided
in Paragould, Arkansas, and never had a permanent residence
in the area covered by the Contract, was not a member of
Respondent Union or any other union Robertson telephoned
the Union on January 17 and 18, 1968, about the eligibility of
Parker and Pate, on January 19, about securing eligible
operators for the Monigan; on January 20, regarding the
operators to be assigned by Respondent Union, and the
possibility of being permitted to recall Parker, and on January
22, to find out who the operators were who were to be
assigned.
On January 22, Respondent Union assigned two operators
to Respondent Company to operate the Monigan on the
second and third shifts in place of Parker and Pate Their
names were Gene Behr and Raymond Smith Following the
assignment of Behr and Smith, and without consulting the
Union, Superintendent Robertson recalled the remaining 2 of
the 11 employees, besides himself, who had worked prior to
the shutdown on December 30 and 31, 1968. As stated, the
unfair labor practice charges were filed by Parker on February
26, 1968, and amended by him on April 9, 1968, and the
consolidated complaint was issued on April 18, 1968
Evidence in Controversy
On Tuesday, January 2, 1968, following his layoff on
December 31, 1967, when the project at Ursa was shutdown,
Pate applied or signed up for unemployment compensation.
Pate testified that when Superintendent Frank Parker told him
on December 31, that the project was being shut down on
account of the weather, he did not refer to it as a temporary
shutdown but that he understood such a shutdown to be a
temporary one, although he had no knowledge of how long it
would be As stated, Pate and the other employees were paid
the wages due them on Thursday, January 4 On January 9,
when he again signed up for unemployment compensation he
was told by the office administering this program that he had
to report he was out of work to the Union in order to draw
unemployment compensation On January 9, he telephoned
the Union and had a conversation with John S. Hudson,
financial secretary of Respondent Union, a position he had
held for 10 years. Hudson testified that each week he handles
some of the referrals.
Pate testified that on direct examination he told Hudson he
was laid off, that it was a temporary layoff, Hudson asked him
how long it would be before he went back to work, and he
replied that he did not know, that there was no definite date,
and Hudson then said he would put him on the out-of-work
board
Hudson testified that he talked to Pate on January 9 when
he called in, that Pate said the job had been shut down, and he
had been laid off, and he mentioned unemployment compensa-
tion, and they discussed whether or not he should report out
of work or what he wanted to do, and Pate said he did want to
6 The contract between Respondent Company and Respondent
Union, discussed infra, provides that a supervisor in the employ of an
employer who holds union membership shall not be bound or in any
way affected in the performance of his duties for the employer
including hiring, by any obligation of union membership, bylaws, rules
and regulations, or the constitution of the Local or International Union
1464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
report out of work, and he then "put him on the out of work
board."
Hudson testified he was familiar with the Contract and that
Respondent Union has a seniority system of referral under
which each person has a seniority number and the lowest
number is held by the men with the longest service dating back
to 1936 or 1937, and that referrals are made without regard to
membership or nonmembership in the Union. He testified that
the provisions of the Contract dealing with referrals were
implemented in rules and regulations 7
Respondent Union placed in evidence through Hudson a
memorandum dated March 13, 1968, that it furnished to the
Board' s Regional Office in St Louis, Missouri , in which are
listed the names of 26 persons not members of the Union
referred by the Union's hiring hall in 1965, 1966, 1967, and
1968 These persons have addresses in states other than
Illinois, and in Illinois counties not within the Union's
jurisdictional area There are some with addresses in the
jurisdictional area . Hudson testified that at the time of the
hearing there were approximately 50 persons not members of
the Union working in the jurisdictional area of the Union This
area is the same as the area set out in the Contract in the
provision dealing with residence requirements for referral.
Pate testified that on January 10, the day following the day
he was told by the government office administering the
employment compensation program to report to the Union he
was out of work, and he called the Union and reported out of
work to Hudson, he had a conversation with McCoy, President
of Respondent Company, and the latter told him that there
would be "no need for me losing my job, that I'd get my job
back when the machine started back up." Pate testified that he
talked to Robertson about being recalled at the project at Ursa
prior to the resumption of operations. Robertson was putting a
frost breaker on the blade of a bulldozer He said to Pate he
thought that McCoy was going to resume operations as soon as
he could get rigged up Pate talked to Robertson again on
Thursday or Friday, January 18 or 19 He testified he asked
him what his chances of going to work were, and Robertson
replied that he would have to call Respondent Union, and find
out, that he could not recall him because he was on the
out-of-work board.
7 The only rules and regulations in evidence are the By -laws of
Respondent Union
8 Leo Stewart had been the steward of the Union on Respondent
Company's operations since June 1967, as well as an employee of
Respondent Company Prior to that time , he had been a business agent
of the Union He was appointed steward by the Union Sections 2
through 5 of Article XIII of the By-laws of Respondent Union provide
as follows
Section 2 . After the steward has been appointed , employees sent
to the job must be notified who the Steward is and must report to
him before going to work
Sec. 3 All stewards must study the By-laws and Constitution,
working rules and agreements so that they may deal properly with
their employer and the employees under their charge
Sec. 4. In case of a dispute which cannot be settled by the
Steward he shall notify the Business Manager or authorized assistant
In the event of an accident to one of our members , he shall take
charge of the injured or sick , gather all evidence available and if
necessary accompany the injured or sick to the hospital or doctor In
case of loss of time while caring for sick or injured, it shall be paid
by the Local Union.
Sec. 5 . Stewards shall see that all employees working on the job
are in Good Standing in the payment of their dues He shall make a
report to the Business Manager of those who are in arrears. He shall
Pate, the same day, telephoned the Union, and talked to
Hudson or Mayes. Pate testified he asked either Hudson or
Mayes what his chances were of going back to work, and was
told that Respondent Union was supplying new operators, and
he would have to wait and see. Hudson testified he had a
second conversation with Pate but did not disclose when he
had the conversation or what was said , and had no knowledge
whether any attempt was made to refer Pate after he was
placed on the out-of-work list. He also testified that when a
person from outside the area covered by the Contract reports
out of work, he is placed at the bottom of the out-of-work list
Parker testified that when his father told him on December
30, 1968, that the project was being shut down, he said it was
a temporary shutdown on account of the weather He testified
that he talked to Robertson at the project on January 17 and
the latter said they would go back to work as soon as the frost
broke up He talked to him the following day, and Robertson
said that he and Pate had been replaced because they were out
2 weeks and were paid up
Superintendent Robertson testified that when he tele-
phoned Respondent Union on January 17, 1968, after Leo
Stewart, Respondent Union's steward, told him on January 16
to call the Respondent Union before he shifted the Monigan,
he talked to Hudson and asked him about the work status of
Pate and Parker Hudson said that Pate was ineligible as he had
signed on the out-of-work board, but he did not have a
ruling on Parker. He said he would find out. Parker had signed
for unemployment compensation on January 2 and 9, as Pate
did, and was told on January 9 , as Pate was , that he had to
report out of work to the Union. He reported out of work to
his local in Des Moines, Iowa, and it placed him on its out-of-
work board. Respondent Union did not have any information
about Parker. Hudson testified that is was not necessary for
Robertson to have called the Union about manning the
Monigan, that he could have recalled Parker and Pate to man
it Robertson testified that he would not have called the Union
had not Leo Stewart, the steward, told him to do so.
Robertson also testified that in the case of a temporary
shutdown the practice had been to allow the employer to
recall the employees laid off directly and without contacting
the Union. This is also the testimony of Hudson Mayes
see that an apprentice engineer is employed to oil and grease all
equipment coming under the Engineer 's jurisdiction except where
the Engineer is allowed to oil or grease his individual machine,
subject to Local working agreements.
Robertson and Mayes testified that the steward had the duties set out in
the By - Laws In substance, they said that he was to look out for the
interests of the Union They testified that he had no authority with
respect to the assignment of workers Hudson testified that he knew of
no authority a steward had to act as agent for the Union
I conclude and find that the above duties of a steward listed in the
By-Laws, and the testimony that Steward Stewart exercised these
duties, clothed him with the apparent authority of agent of the Union,
especially since he had been a business agent of the Union before taking
a job with Respondent Company and being appointed steward by the
Union A member of the Union like Superintendent Robertson would
not recall an employee before checking with the Union on being told by
Steward Stewart not to do so until he checked with the Union in view
of Stewart 's background and his duties as a steward of Respondent
Union This is so notwithstanding the provision in the Contract that a
superintendent is not bound by anything connected with his union
membership or anything in the By -Laws or Constitution of the Union
Local 456 , Teamsters, 142 NLRB 1409 , 1410 -11, International Associa-
non of Bridge , Structural and Ornamental Iron Workers, Local 600,
etc , 134 NLRB 301, 306-307.
J-M COMPANY,
testified that any employee laid off, temporarily laid off as
well as permanently laid off, should report to the Union and
get on the out-of-work board.
Robertson called the Union on January 18 and again talked
to Hudson. He said he would like to start manning the
Monigan during the second and third shifts beginning that day
with the second shift which started at 4 p.m. Hudson said he
would call him back. Hudson telephoned Mayes who was in
Quincy, Illinois, from the Union's office in Springfield, Illinois,
and asked him about the work status of Parker and Pate.
Mayes told Hudson to tell Robertson that the Union was
invoking the 24-hour rule. Hudson called Robertson and told
him the Union was invoking the 24-hour rule and Robertson
replied that he would put off starting the second and third
shifts on the Monigan until the following Monday, January 22 9
Hudson also told Robertson that Business Manager Mayes
would be in the office the next day.
Robertson called the Union the next day and talked to
Mayes He said to him that he needed to run two additional
shifts on the Monigan, and asked him for eligible and qualified
men to man the Monigan on these shifts. Robertson testified
that Mayes asked him if he was requesting Parker, and he said
no, that he was requesting eligible and qualified men. Mayes
testified that he asked Robertson if he was requesting
anybody, and Robertson said no, that he was requesting
operators to run the Monigan on the 4 to 12 and 12 to 8 shifts.
Mayes also testified that he told Robertson that Pate was not
eligible to return to Respondent Company's employment
because he was on the out-of-work board. He denied that he
ever told Respondent Company that Parker was not eligible to
work for, or be reemployed by, Respondent Company
Robertson testified that when President McCoy telephoned
him on January 19 to find out how the project was going, he
told him about the situation involving Pate and Parker. He said
to McCoy that he did not know whether they were going to
get Pate and Parker back McCoy said to him that they ought
to hang on to Parker if they could. Robertson called the Union
the next day, January 20, and talked to Mayes. He asked him
who were coming out. Mayes said he did not know for sure.
Robertson then said to Mayes that he had talked to McCoy,
and McCoy said they ought to hold on to Parker if they could.
Mayes said, "Who in hell is running the job?", and Robertson
answered he was, but that McCoy was his boss McCoy
testified he asked Robertson if he could get Parker and Pate
back to work, and Robertson said "We'll have to get them
cleared in with the Union, we have a Union contract, and we'll
use their referral system "
Robertson telephoned Respondent on January 22 and
talked to Mayes. He telephoned to find out who were being
assigned or were coming out Mayes told him that Gene Behr
would be on the 4 p m to midnight shift, and Raymond Smith
would be on the midnight to 8 a m. shift. Respondent Union
assigned these two men on January 22 to operate the Monigan
on the second and third shifts. Robertson testified that when
one of the two men assigned by the Union quit on January 24,
he would have called Parker if the Union could not have
furnished one in the 24 hours following his request for a
replacement, but admitted that when he requested a replace-
ment on January 24 he did not tell Jack Ginder, an assistant
9 As stated , the Union has 24 hours to meet a request for referral
before the employer may hire from any source available to him.
10 A minimum payment of $5 must be paid on the initiation fee
when each application is made for membership. The initiation fee, $150
INC. 1465
business agent to whom he made the request, that Parker was
available Robertson testified that he knew that the nine
former employees he recalled were members of the Union, and
knew that Parker held a card from another local of the
Operating Engineers . He testified that he knew Pate was not a
member of a union, but understood he had applied for
membership in the Union.
Pate talked to McCoy again on Tuesday or Wednesday,
January 23 or 24. He asked McCoy if there was any way for
him to get his job back, and he replied he did not know but
that he would call the Union and see if there was any way for
him and Parker to get their jobs back. McCoy said to him that
he did not know a call was placed for new men, that he took it
for granted that Robertson would go ahead and call him and
Parker back.
Pate testified he visited Respondents Union's hall on
February 22. He talked to Mayes and Walter Cammier, a
business agent. His first conversation was with Mayes He asked
Mayes if there was anything he could do about getting his job
back, and Mayes said no. Pate said to Mayes that when he
telephoned him to come up to work from Paragould, Arkansas,
he told him he would have work through spring, and Mayes
replied that he did say this but did not think there would be
any shutdowns. Cammrer showed Pate where his name was on
the out-of-work board. Pate testified on direct examination
that Cammrer said that if a member came in that day, and
signed up with the same qualifications he would step ahead of
him on the board On cross-examination he testified that
Cammier may have referred to a member with seniority. Pate
asked Cammier if he could apply for membership and he said
yes, but said he advised him to wait until spring, that members
would be distributed out and gone back to work by then, and
he would have a better chance of being referred. He also said
that Pate could go ahead and apply but it would cost him $5
for nothing. Pate also testified that he had talked to Cammier
in November 1967. Cammier gave him a Union book and took
a $5 initiation fee. He filled out a work qualification card on
him, and advised him not to try to join the Union until spring,
as with winter coming on there were many members in the hall
out of work and it did not do much good to apply for
membership. However as stated, he took the $5.10
Mayes testified that on Saturday, March 16, 1968, at 7:45
p in., he telephoned the address in Mendon, Illinois, that Pate
gave to the Union when he began employment with Respond-
ent Company," and a woman answered, and he asked for
Pate He testified he said it was Respondent Union calling
about a job for Pate, and the woman answered he was working
in Salisbury, Missouri, but would be home Sunday morning,
and he replied he would telephone him later He further
testified he never called him back.
Pate paid $2.50 a week to the Union during the time he was
employed He received a receipt by mail for the payment This
amount appears to be a service charge for the use of the Union
as a referral office. Pate applied for work to the Union by
letter in October 1967. Four days later Mayes telephoned him
at his house in Paragould, Arkansas, and asked him to come to
Ursa that Monday night . He said an operator was needed for a
5W Monrgan Mayes arranged for him to report for work to
Respondent Company on the "graveyard shift," starting 12
or more, plus tax and 3 months ' dues must be paid within 60 days from
the date the application is signed
11 Pate moved his trailer to Mendon from Paragould , Arkansas.
1466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
midnight on Sunday, October 22, 1967. Parker's father,
Superintendent Frank Parker, telephoned Parker^ at his home in
Memphis, Tennessee, in regard to his taking employment with
Respondent Company, and he reported for work about the
same time as Pate. His father arranged for his employment
with both Respondent Company and Respondent Union
Superintendent Parker told his son, like Mayes told Pate, that
an operator was needed to run the 5W Monigan. Parker, like
Pate, paid a weekly fee of $2 50 to the Union, and received a
receipt for each payment in the mail
Mayes testified that Respondent Union has an exclusive
hiring hall arrangement with Respondent Company, that it is a
seniority referral system. He said that some persons call it "out
of work board" but he called it a referral system. He testified
that when a person went out of work he went on the
out-of-work board according to his seniority number, and
that in the case of a permit man or a service man he went on
the out-of-work board in accordance with the date he
reported out of work He testified he told Robertson that Pate
was not eligible to go back to work for Respondent Union,
because he was on the out-of-work board, although he was
eligible to work elsewhere He testified that Parker's name was
not on the out of work board, that he never reported out of
work. He testified that Pate was not at the top of the
out-of-work board, but was at the bottom of it. As stated, he
denied he ever told Respondent Company that Parker was not
eligible for reemployment. The record is silent as to any
conversation he or Hudson had with Parker or of any contact
Parker had with Respondent Union.
Analysis, Credibility and Evidentiary Resolutions, and Findings
and Conclusions of Fact and Law-' 2
The question is whether the preponderance of the foregoing
evidence, considered as a whole, shows that Respondents
discriminated against employees Pate and Parker because of
non-membership in the Respondent Union or any other
reason related to union membership or the absence of it, by
Respondent Company's refusal to recall them on January 17,
1968, and thereafter, to the jobs they held prior to the
shutdown due to frozen ground, and the causing of this refusal
by Respondent Union.
It is clear from the evidence that Parker and Pate would
have been recalled by Respondent Company, by Superintend-
ent Robertson, on or about January 17, 1968, if Stewart, the
steward for Respondent Local, on Respondent Company's
Ursa project, and agent of the Union, had not told Robertson
to check with the Union before placing the Monigan back on
the second and third shifts,' 3 and if Robertson had not
heeded Stewart, and recalled them without contacting the
Union
Seven of the original employees had been recalled by
Robertson directly by January 17, 1968, and two more were
recalled directly by him on January 22, 1968. This made up
the entire complement of 12, with the exception of Parker and
12 Credibility resolutions and resolutions of conflicts in evidence
have been made upon evaluation of demeanor testimony and oral and
written evidence See Felix Mackevicius, dlblal Bighton Bakery, 1158
NLRB 512, in 1,NLR.B.v. United Brotherhood ofCarpenters, Local
517, AFL, 230 F.2d 256, 259 (C.A 1), N L.R B v Universal Camera
Corporation, 179 F 2d 749 (C A. 2), reversed on other grounds 340
U S 474
13 Parker and Pate had operated this dragline on these shifts prior to
the shutdown on December 30 and 31, 1967 In effect , Stewart told
Pate, employed prior to the shutdown, as Robertson, 1 of the
12, was then superintendent and doing the recalling The nine
recalled and Robertson were members of the Union, while
Parker was a member of Local 234 of Operating Engineers but
not of Respondent Union, and Pate was not a member of any
union.
The conversations Robertson had with Hudson and Mayes
on January 17, 18, 19, 20, and 22, 1968, had disclosed to the
Union by January 22, 1968, when it referred to Respondent
Company's Ursa project two men to replace Parker and Pate,
that Respondent would like to reemploy Parker and Pate.
Being conversant with the established policy of direct recall by
the employer after a temporary shutdown, it could have
informed Robertson he could recall them directly without
having them processed through the Union's referral service.
I find from this evidence that Parker and Pate were
discriminated against on January 22, 1968, by being denied
recall on that date by Respondent Union, and by being
replaced on that date by two men referred by Respondent
Union and hired by Respondent Company There now remains
for disposition the vital question of whether the evidence
shows they were discriminated against because of non-
membership in the Union and not because they lacked area
residence and work experience with contractors signatory or
parties to the Contract. If the discrimination was for the latter
reason, there is no violation 1 4
The legality of the exclusive hiring hall operated by
Respondent Union is not in issue However, illegality does not
attach per se to an exclusive hiring hall system operated by a
umon under a collective-bargaining contract providing that in
connection with referrals by the union a preference shall be
given to area residents of 2 years or more in accordance with
the extent of their work experience as employees of employers
signatory or parties to the collective-bargaining contract, and
providing that no discrimination against persons seeking
employment because of membership or non-membership in
the union shall be shown by the union either in the
maintenance of a referral list or in the referrals for employ-
ment, and that the selection of applicants for referral by the
union shall not in any way be based on or affected by union
membership, by-laws, rules, regulations, constitutional pro-
visions, or any other aspect of union membership, policies or
requirements. The evidence shows that the exclusive hiring hall
operated by Respondent Union is operated under such a
collective-bargaining contract. Therefore there is no presump-
tion that the denial by the Respondent Company and
Respondent Union, in the operation of the exclusive hiring hall
system, of reemployment to non-members lacking permanent
residence in the area specified in the Contract, and lacking
work expenence as employees of contractors signatory or
parties to the Contract, is on its face discriminatory conduct
violative of the Act The burden is on the General Counsel to
prove that the conduct in issue constitutes illegal dis-
crimination .15
Robertson not to recall Parker and Pate without first contacting the
Union.
14 See Local 357, Teamsters v N.L.R .B., 365 U.S. 667.
15 Local 357, Teamsters , 365 U.S . 667, Pipe Fitters Local Union
No 392, United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and Canada,
AFL-CIO, etc. (Alco Products , Inc.), 136 NLRB 492 ( 1962 ), Local 98,
Operating Engineers (Consolidated Gas and Service Co ), 155 NLRB
850 (1965), Northern Stevedoring and Handling Corp. (Local 1-82),
Longshoremen's and Warehousemen 's Union, etc ), 143 NLRB 8 (1963)
J-M COMPANY, INC. 1467
I find from the evidence that Respondent Union had a
referral list or register containing names of competent op-
erating engineers with 2 years' permanent residence who were
either living in the specified area or had left it temporarily with
the intention to return, kept current by the re-registration of
these engineers on the list or register on the first Monday in
each quarter of each calendar year I find that these engineers
received a seniority or priority number, based on the extent of
work experience as employees of contractors signatory or
parties to the Contract, and were listed on the register or list in
the order of these numbers from lower to higher. I find no
evidence in the record that the names were placed on the list
or register, or in any order of preference on the list or register,
by reason of membership in the Union or in connection with
membership in the Union. It may well be that all those
registered on the referral list and having seniority numbers
were union members since the Contract and prior collective-
bargaining contracts had union security clauses requiring
membership in the Union after 7 days of employment, or after
30 days prior to the amendment that changed the period for
the construction industry to 7 days after employment from 30
days after employment. In any event, if it was the case, it
cannot be assumed that the list or register was discriminatory
in favor of those having membership in the Union, and against
those not having membership in the Union .16
I also find that Respondent Union has an out-of-work
board from which referrals are selected Those eligible for
listing on the board are applicants for referral who are out of
work by reason of the termination of prior employment The
listing begins with those having seniority numbers by reason of
their being on the referral list or register because of area
residence and area work experience, in the order of the
seniority numbers from lower to higher, followed by compe-
tent engineers who are not on the referral list or register
because they lack area residence or area work experience or
both, but who have paid a permit or service fee for the use of
the hiring hall. Those in this latter group are listed in the order
of date of registration
I find no substantial evidence that the out-of-work board
or referrals therefrom discriminate in favor of union members
and against non-union members. In making this finding, I
have considered, inter alia, the Union's placement on January
9, 1968, of Pate on the out-of-work board below persons
with seniority based on area residence and work experience
The By-Laws of the Union provide that it shall assist its
members in obtaining employment through an out-of-work
board They do not, however, preclude its being used by the
Union in a nondiscriminatory manner to assist non-members
in obtaining employment Specifically, there is nothing in the
By-laws that provides that members shall be listed on the
out-of-work board so that they shall receive a preference
over nonmembers by reason of their membership Area
residents with area work experience who voluntarily joined the
Union or joined because of the union security clause in the
Contract or prior collective-bargaining contracts, may, in
fact, have a preference over non-members. But absent
evidence to the contrary, the preference is due to their having
the required area residence and work experience, and not
because of their membership in the Union.
I conclude and find that the general operation of the hiring
hall or referral service by Respondent Union by the use of the
above-described referral list or register and the out-of-work
board does not disclose any illegal discmmnation in favor of
union members and against non-union members 1 7
It appears from the evidence, and I so find, that Respond-
ent Union's general operation of its hiring hall does not
disclose any basis for a finding that Parker and Pate were
discrinunated against in violation of Section 8(b)(1)(A) and (2)
of the Act. In making these findings I have considered Business
Agent Cammier's statements to Pate in their conversations in
November 1967 and February 1968 regarding referral of union
men with seniority. These conversations are discussed infra.
The instruction of the Union Steward on September 16,
1967, to Superintendent Robertson not to recall Parker and
Pate to their jobs until he checked with the Union, against the
background of legal operation of the Union's hiring hall, does
not carry evidence on its face of illegal discrimination against
Parker and Pate. The Union not only represents its members,
but is also the collective-bargammg representative of all the
employees in the unit, and conducts a legal referral service
under the Contract. I have found that the referral service does
discriminate in favor of area residents with work experience
with contractors bound by the Contract, but that such
discrimination is legal General Counsel has offered no evi-
dence that labels the Steward's instruction to Robertson as the
beginning of a chain of causation intended to deny Parker and
Pate recall because they were not members of the Union In his
conversation with Pate in February 1968, Mayes disclosed that
in the winter months there are men in the hiring hall seeking
referral, and Cammier disclosed that at least some of these men
are union members with seniority. But the preference they
receive in connection with referrals, on this record, is due to
the seniority based on area residence and work experience and
not to union membership As stated, such a preference is not
illegal. It cannot be assumed that the Union conducts its
operation in violation of law where the conduct in issue may
well have a legal motive as well as an illegal motive There must
be evidence that the illegal motive set the conduct in
motion.' 8
For the same reasons, I find there is absent evidence of
illegal discrimination in the conversations between Robertson
and McCoy; Robertson and Hudson; Robertson and Mayes;
Hudson and Mayes; Pate and Robertson, Pate and McCoy, Pate
and Hudson, Pate and Mayes, and Parker and Robertson. I also
find there is absent evidence of illegal discrimination in Pate's
conversations with Business Agent Cammier in November 1967
and February 1968.
When Pate, in November 1967 and in February 1968,
talked to Business Agent Cammier about making an applica-
tion for union membership, Cammier advised him not to apply
for membership until the spring when union men with
seniority would be assigned out, and he would then be in
better position for referral. He said that there would be large
numbers of these union men with seniority in the hiring hall
awaiting referral during the winter months. The seniority,
however, was premised on area residence and work experience
with contractors bound by the Contract, and not by union
membership Carnmier in effect was saying that his position on
16 Cases cited fn. 15, supra.
17 Cases cited fn 15, supra.
1 8 Local 357, Teamsters v. N L R B , 365 U S 667, 676
1468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the out-of-work board would not improve with union member-
ship. Pate was interested in November in meeting the Contract
requirement that he join the Union after 7 days of employ-
ment, and Camnuer was attempting to save him from having to
pay, within 60 days after signing or making the application for
membership, the required Initiation fee of $150 or more, and
3 months' dues, because membership and this outlay of
money, which he could not afford, would not improve his
referral status. In February 1968, Pate talked to Camrruer
again about joining the Union and Cammier gave him the same
advice he gave hum in November, that is, that union member-
ship with the outlay of initiation fee and dues would not
improve his position for referral on the out-of-work board.
This time Pate was endeavoring to be recalled to his job on
Respondent Company's Ursa project.
The inference to be drawn here from Canunier's statements,
and I draw it, is that better status on the out-of-work board
depended on seniority based on the required area residence
and work experience, which was not obtainable by union
membership. His status would improve with the referral out in
the spring of the men, very likely with union membership for
the reasons stated supra, who had seniority status based on
area residence and work experience. This inference is also sup-
ported by Mayes' statement to Pate on the same day in Feb-
ruary that Pate talked to Canuruer, that his promise to him of
work until the following spring did not contemplate any shut-
down. As stated supra, men with seniority are plentiful in the
hiring hall during the winter months.
Undoubtedly, Parker and Pate would have been recalled
along with the other employees if Pate's name was not placed
on the out-of-work board on January 9, by Respondent
Union, by his reporting out of work. He had to report out of
work in order to be eligible for unemployment compensation,
and Respondent Union, by Hudson, felt that the hiring hall
procedure required that his name be placed on the out-of-work
board in accordance with the prescribed procedure I have
already discussed when he reported out of work. His name on
the board set in motion the procedure for assignment of appli-
cants for referral. The procedure, as I have found, discrimi-
nates in favor of area residents with required work experience.
Although Parker's name was not on the board, he received the
same treatment as Pate. His situation was the same as Pate's
but his name was not on the Union's board as he reported out
of work to his Local in Des Moines, Iowa. That Local put him
on its out-of-work board. He, like Pate, was a permit man, and
not entitled to the preference accorded applicants for referral
who had seniority based on area residence and work experi-
ence.
For the foregoing reasons, I find that General Counsel has
not proved by the preponderance of the evidence on the rec-
ord as a whole that Parker and Pate were denied reemploy-
ment or recall by Respondents because of nonmembership in
Respondent Union or any related illegal reason. I, therefore,
find that the complaint in which is alleged that Respondent
Company failed to recall or reinstate Parker and Pate, and
thereby interfered with, restrained, and coerced employees
with respect to their rights guaranteed in Section 7 of the Act,
and discriminated against employees in regard to the hire or
tenure or terms or conditions of employment of its employees,
thereby encouraging membership in a labor organization, in
violation of Section 8(a)(1) and (3) of the Act, and that Re-
spondent Union restrained and coerced employees in the exer-
cise of their rights in Section 7, and caused and attempted to
cause Respondent Company to discriminate against his em-
ployees as described and stated, in violation of Section
8(b)(1)(A) and (2) of the Act, should be dismissed.
It is not necessary to rule on Respondent's defense that the
provisions of Illinois Revised Statutes, Chapter 48, Sections
269-275, estop the finding under the Act of any illegal con-
duct by Respondents. These provisions of Illinois Revised
Statutes require as a matter of state law that preference be
extended to Illinois laborers and mechanics on public work
projects. As disclosed by footnote 2 of this decision, the
Illinois statutory provisions do not place any limitation on the
application of the Act to this case. Moreover, they are not to
be equated, in terms of limitation on the Act, with state right-
to-work laws. Right-to-work laws, unlike the Illinois statute,
are incorporated in the Act by Section 14(b) of the Act.
CONCLUSIONS OF LAW
1. Respondent J-M Company, Inc., is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act, and
Respondent International Union of Operating Engineers, Local
Union No. 965, AFL-CIO, is a labor organization within the
meaning of the Act.
2. Respondent Company did not interfere with, restrain, or
coerce employees, in violation of Section 8(a)(1) of the Act,
or illegally discriminate against employees to encourage mem-
bership in Respondent Union in violation of Section 8(a)(3)
and (1) of the Act, by denying recall or reinstatement to em-
ployees Parker and Pate to their former jobs.
3. Respondent Union did not restrain or coerce employees
in violation of Section 8(b)(1)(A) of the Act, or cause or
attempt to cause, in violation of Section 8(b)(2) of the Act,
Respondent Company to illegally discriminate against em-
ployees in violation of Section 8(a)(3) and (1) of the Act, by
refusing to refer employees Parker and Pate to Respondent
Company as applicants for their former lobs.
4. The complaint should be dismissed in its entirety.
RECOMMENDED ORDER
It is recommended that the Board issue an order dismissing
the complaint against Respondent J-M Company, Inc., and
Respondent International Union of Operating Engineers, Local
Union 965, AFL-CIO.