Int'l Union of Operating Engineers, Local 925, Etc.

National Labor Relations Board - Board Decisions

Aug 24, 1965

154 N.L.R.B. 671 (N.L.R.B. 1965)

INT'L UNION OF OPERATING ENGINEERS, LOCAL 925, ETC. 671
NOTE.-We will notify any of the above-named employees, except Green, pres-
ently serving in the Armed Forces of the United States of their right to full rein-
statement upon application in accordance with the Selective Service Act and the
Universal Military Training and Service Act of 1948, as amended , after discharge
from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, 746
Federal Office Building, 167 North Main Street, Memphis, Tennessee , Telephone
No. 534-3161.
International Union of Operating Engineers , Local 925, AFL-CIO,
and its Business Manager, H. B. Roberts (J. L. Manta, Inc.,
et al. ) and Herman Dewey Ross. Cases Nos. 12-CB-734 and 12-
CB-743. August 24,1965
DECISION AND ORDER
On April 28, 1965, Trial Examiner Thomas A. Ricci issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent filed exceptions
to the Trial Examiner's Decision and a supporting brief. The
General Counsel filed limited exceptions to the Trial Examiner's
Decision.'
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 [Chairman McCulloch and Members Fanning and Brown].
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 briefs, and the entire record
in these cases, and hereby adopts the findings,2 conclusions, and rec-
ommendations of the Trial Examiner with the modification noted
below.
1 General Counsel 's exception was to the Recommended Order only, and we find such
exception to have merit . The fact that employment in the construction industry is usually
of short term with many different employers and the fact that six employers have already
been caused by Respondents to discriminate against Ross , considered in the light of the
nature of the violations committed by Respondents , justify an order requiring desistance
as to "any other employer" as requested by the General Counsel . Local 542, Interna-
tional Union of Operating Engineers , AFL-CIO ( Elmhurst Contracting Co., Inc ., etc.),
141 NLRB 53.
2 The Respondent has excepted to the Trial Examiner 's credibility resolutions, but we
are not persuaded that a clear preponderance of all the relevant evidence is contrary to
the Trial Examiner's credibility findings. Standard Dry Wall Products , Inc, 91 NLRB
544, enfd. 188 F. 2d 362 (C.A. 3)
154 NLRB No 56.
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, as modified
herein, and orders that the Respondent, International Union of
Operating Engineers, Local 925, AFL-CIO, its officers, agents, and
representatives, and Respondent's Business Manager H. B. Roberts,
his agents and representatives, shall take the action set forth in the
Trial Examiner's Recommended Order, as so modified :
1. Paragraph 1(b) is amended by inserting a comma after the
word "employers" and by adding the following : "or any other
employer,".
2. The notice is amended by deleting the word "or" after Azzar-
relli Construction Company in the first indented paragraph begin-
ning with the words : "WE WILL NOT . . .", and by adding : "or any
other employer," following the comma after J. S. Stephens & Sons.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
This proceeding , with all parties represented , was heard before Trial Examiner
Thomas A. Ricci in Tampa, Florida , from February 23 through to March 2, 1965,
on complaint of the General Counsel and answer by International Union of
Operating Engineers , Local 925, AFL-CIO, and its Business Manager, H. B.
Roberts, herein called the Respondents . The issue litigated was whether the
Respondent Union and its agent had violated Section 8(b)(1)(A ) and (2) of the
Act. Briefs were filed by the General Counsel and the Respondents.
Upon the entire record, and from my observation of the witnesses , I make the
following. i
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE EMPLOYERS
As this is a proceeding against a labor organization and its agent , the Board's
jurisdiction is based upon the volume of business carried on by those employers
whom the Respondents, directly or indirectly, are said to have caused to discrimi-
nate against the Charging Party, an employee and a member of the Union. Among
such employers are J. L. Manta, Inc., an Illinois corporation, Foster-Wheeler
Corporation, a multistate company, and J. S Stephens & Sons and Beasley
Brothers, Inc., both Florida corporations. These are all companies engaged in
some aspect or other of the construction industry, and in a normal 12-month
period in their operations in the State of Florida purchase and receive goods;
supplies, and materials valued in excess of $50,000 from out-of-State sources.
Other employers in the Tampa, Florida, area affected by the alleged activities
of the Respondents are Azzareili Construction Company, Bushnell Steel Construc-
tion Company, Mulberry Construction & Welding Co., Frank M. Murphy Corpora-
tion, and Wellman-Lord Engineering, Inc., all members of the Florida West Coast
Chapter of the Associated General Contractors of America, Inc. Through this
association these employers are parties to collective-bargaining agreements with
the Respondent Union. During a typical 12-month period each of these employers
also annually purchases and receives for its Florida operations, directly or indirectly,
from sources outside the State of Florida goods, supplies, and materials valued
in excess of $50,000.
I The General Counsel's motion to correct errors in the transcript of testimony Is hereby
granted, and the motion document made part of the record as a Trial Examiner's exhibit.
INT'L UNION OF OPERATING ENGINEERS , LOCAL 925 , ETC. 673
I find that all of the foregoing employers are engaged in commerce within the
meaning of Section 2 ( 6) and (7) of the Act, and that it will effectuate the policies
of the Act to exercise jurisdiction herein.
H. THE LABOR ORGANIZATION INVOLVED
International Union of Operating Engineers , Local 925, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Issues Generally
This is a case against the Union and its agent in an exclusive hiring hall situa-
tion . It is alleged that Local 925 struck a number of construction projects to
force removal from work of Herman Dewey Ross , a union member since 1951
and an expert crane operator , and that Business Agent Roberts , personally in
complete control of all work referrals , assigned jobs in a series of incidents to
union members standing below Ross on the referral out-of-work list. All this
conduct, prejudicing Ross in his work opportunities , is alleged in the complaint
as causing , or attempting to cause, various employers to discriminate against him
in violation of Section 8(a)(3) of the Act, and therefore to constitute a series of
unfair labor practices , by the Union and Roberts , in violation of Section 8(b)(2).
The reason underlying this concerted activity against Ross is said to be the fact
that he attempted to unseat Roberts as business agent, that strong animosity grew
up between the two men , and that Ross attempted to vindicate his position by filing
charges with the Labor Board against both Roberts and the Union.
Background Facts
Roberts has been business manager of this Local Union since 1960 , elected last
in 1962. At that time , and in previous union elections , Ross campaigned on
behalf of opponents to Roberts for office . In the heat of the campaign , Roberts
told Bennet , another member, Ross "wouldn't get anything out of the hall if he
did make it." Apparently Ross began to complain , even then, of how Roberts
conducted union affairs, and when the business agent asked Union President
Bradley to convene the executive board to consider the matter , Bradley refused
because he agreed with Ross , indeed Bradley resigned from office only a few months
after the 1962 election . Bradley was replaced as president by another member,
still in office , appointed by the five remaining union officers , including Roberts.
In 1963, Ross accused Union Treasurer Clark of handling the union checkbook
improperly ; as a result he was charged with violation of union rules. In turn Ross
filed charges against Roberts for misconduct in office. Ross was tried at the
August 1963 union meeting, with Roberts acting formally as designated prosecutor,
and was convicted ; the fine was $200 and 2 years' probation .2 After the trial
Bennet heard Roberts say , in the presence of other members , "You can ' t discrimi-
nate against a nigger, but you can a white man . I just proved it ." Roberts was
tried at the September meeting but was acquitted.
There then followed certain activities by Roberts , in the administration of the
hiring hall , which Ross deemed illegal and he filed unfair labor practice charges
against both him and the Local. On January 29, 1964, there was a settlement,
approved by the Regional Director , whereby Ross was paid $200 and a notice to
refrain from such misconduct in the future was posted by Roberts and the Union.
That same day, January 29, intraunion charges were again placed against Ross,
this time because he had resorted to Board proceedings He was tried on March 3
and found guilty; the penalty imposed was a fine of $ 1,025, which Roberts ex-
plained to Ross as: $525 for the lawyer , $200 reimbursement for the settlement
payment made 2 months earlier by the Union , and $300 representing work for
Roberts for 1 week.3 Ross did not pay the fine ; his union dues at that time were
2 On appeal to the International , pursuant to internal union regulations , the sentence
was reduced to a simple fine of $50 Apparently Ross paid this fine.
3I find that imposition of this fine on Ross was an unfair labor practice by the Re-
spondent Union and by Roberts in violation of Section 8(b) (1) (A ) of the Act. H R.
Roberts, Business Manager of Local 925 , International Union of Operating Engineers, etc.
(Wellman-Lord Engineering, Inc.), 148 NLRB 674
206-446-66-vol 154-44
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
current through March Thereafter he tried several times to pay dues but they
were in each instance refused on the express ground that he had failed to satisfy
the penalty imposed. Union rules provide for automatic suspension from member-
ship after 3 months' delinquency. As of June 30, 1964, Ross ceased being a
member in good standing, and at the July 3 monthly meeting his name was called
out aloud by Roberts to advise the members present of this fact.
A consequence of the Union's refusal to accept Ross' dues was that his union
book, which all members are required to have on their person whenever at work,
showed no dues payment stamps for the months of April, May, June, July, August,
and September of that year. On October 15 the Union advised him it would
accept his dues and it did so starting that month.
That there was a feeling of ill will against Ross by the Local Union as an entity,
as well as by Roberts personally, both resentments generated by the employee's
separate conception of how the union affairs should be conducted, is thus clear.
If for this reason he was in fact caused to lose work by the Union or its agent,
the illegality of such conduct must follow as a matter of course, and the
Respondent does not seriously argue to the contrary.
A second and equally pertinent fact in the situation is the complete authority
which Roberts possessed and exercised over implementation of the exclusive work
referral system. There have long been in effect exclusive hiring hall agreements
between the Union and each and every one of the many employers who were for
any reason mentioned at the hearing. Every aspect of this case must therefore
be evaluated against the background of a union possessing absolute control over
assignment of work, and of a single agent acting with no superior authority passing
judgment upon his activities.
A further consideration of substantial import in evaluation of Roberts' disparate
work assignments, as well as of the assertedly reasonable basis of decision which
he offered orally at the hearing long after the events, is the manner in which he
ran the hall. During 1963, and up to January 1964, when the first charge against
the Union was settled, no permanent records were kept of requests from employers
for operators. Roberts and his secretary, Mrs. Elizabeth Massaro, jotted the
details of the incoming calls on scratch pads, shuffled them about, maintained them
loosely-the business agent sometimes stuffing some in his pockets when he went
home-and then threw them away. There were printed pads of work orders,
with pink carbon copies always following the original white sheets. When a man
was referred to a job, the date of referral was written down, as well as the name
of the employer, location of project, type of machine involved, reporting time,
the name of the employee sent out. More than one pad was used simultaneously,
sometimes as many as three, so that no single book of carbon copies which were
retained tells the entire picture of any particular period.
In January 1964, the recording system was modified by establishment of perma-
nent sheets showing incoming requests for operators. These show the successive
employer requests, with the time of call-in, name of employer, location, type of
machine, reporting time, and, where the occasion warranted, whether the employer
requested a particular operator by name. The work order pads were continued,
white sheets and pink carbons.
Throughout the entire period, both 1963 and 1964, the Union maintained written
seniority rosters, or out-of-work lists, each used for a few weeks' period, a new
one made from time to time. When a man comes to the hall to seek work his
name is written on the list, with date of registration; whenever he is referred out
a notation is made; he communicates with the hall when that assignment ends, and
again the date is noted. Whenever a single referral results in 40 hours of work
or more, the man goes to the bottom of the list. If a job lasts less than 40 hours,
the man retains his position. All members are required to keep the hall advised
of their availability for work weekly.
The men who use this hiring hall are called operating engineers, but are not
all equally experienced or skilled. Some, like Ross, are essentially and almost
exclusively crane operators. A great variety of heavy equipment is involved,
however, with the crane operators able to work on all, and others skilled only as
to some. Job assignments are not made by automatic rotation through the
seniority lists. There are cards on file in the hall showing the training on particu-
lar machines of all the men. Mrs. Massaro, who also selects men for assignment,
testified that she knows which men can operate the greatly varied types of cranes,
derricks, hoists, bulldozers, winch trucks, etc., and refers out "the first person who
is qualified for the job." Roberts also testified he is familiar with the "qualifications
and capabilities" of each man and is guided accordingly; he said he considers a
INT'L UNION OF OPERATING ENGINEERS, LOCAL 925, ETC. 675
man's age, his experience on the particular crane involved-long boom or short
boom-a man's vision, the ability to judge distances. The men are not required
to accept jobs in the heavy construction industry, or at the shipyard, where the
wage scale is relatively low. Roberts also said that if a man refuses to accept
an assignment, he goes to the bottom of the list, unless his excuse is "reasonable."
He mentioned "illness, heart trouble, if a man can't get his car to run he has no
way to get to work . maybe getting married or something like that . . . . There
are a lot of reasonable excuses."
This absence of objective and externally measurable criteria from the standards
Roberts used in judging among members before making work assignments is
significant in this proceeding because basically he is charged with having per-
mitted his emotional resentment toward Ross to supplant the proper contractual
safeguards in the exclusive referral system. He recalled one occasion at least
when he in fact did relegate Ross to the bottom of the list "because he would not
give me a reasonable excuse." Roberts then went on to give a further example of
what he meant by a "reasonable excuse." In January 1964 he told Ross to go to
work at Sebring, Florida, and the man said he could not because he did not have
the money to travel so great a distance. By this time the two had quarreled for
many months, yet Roberts told Ross to come to his home and he would personally
lend him the money. Ross answered, ". . . he didn't want any of my damn money
... he would get the money some place else." When Roberts added it was that
work assignment or the bottom of the list, Ross went to Sebring.
Roberts was then asked, at the hearing, whether in his opinion Ross' excuse at
that time was not a reasonable one, and he answered: "Not when I had offered
to loan him the money." It is highly improbable that Roberts seriously intended
to lend Ross any money. It would appear instead that in this instance, at least,
what Roberts deemed unreasonable was Ross' unwillingness to eat crow at the
business agent's table.
The Allegations of Misconduct Generally: an Illustrative Incident
Starting in the summer of 1963 and continuing into October 1964 there occurred
a number of incidents in which union members struck on certain jobs, sometimes
causing other employees also to cease work, because Ross was present on the con-
struction project, or incidents in which, if the Union records are taken at their
face value, Roberts referred operators who were at the time below Ross on the
out-of-work list. The General Counsel contends that the various work stoppages
by union members, viewed in the light of all of the evidence and revealing a
coherent and consistent pattern of behavior, must be held to have been concerted
activity by the Union Respondent, led by its principal administrator Roberts, and
that the favored assignments of work to members other than Ross, despite their
lower position on the seniority rosters, prove deliberate discrimination by the
business agent against Ross because of his opposition to the union officers of the
moment , and in retaliation for his having dared to initiate proceedings against the
business agent both within the Union and under the Act.
The defense advances essentially two broad contentions. The first, that whenever
the union members walked off their jobs-as the Union euphemistically insisted
on referring to their strike conduct-each one acted solely in response to a per-
sonal , individual, inner urge not to work with Ross, that theirs was not concerted
or union activity, and that neither the Union, as such, nor Roberts himself was
in any way responsible for the members' common resolve to exclude Ross from
work opportunities. Second, that despite the prima facie proof of discrimination
against Ross revealed unequivocally by the Union's written records, Roberts' oral
testimony at the hearing, together with some supporting corroboration by defense
witnesses , suffices to explain away the seemingly conclusive documentary evidence.
It would appear therefore that two questions are presented: (1) On the record as
a whole, is there sufficient circumstantial evidence to support the complaint allega-
tion that the Union is responsible for the various strikes that occurred? and (2)
is Roberts' testimony credible where it conflicts with the records or that of con-
tending witnesses? The two questions are not entirely severable, for it is the basic
fact of Ross' conflict with the Union that pervaded all the incidents involved.
The evidence respecting one particular incident exemplifies the tenor of the
record as a whole, typifies the character of Roberts' total oral testimony, and
serves to set the defense to the entire complaint in proper perspective.
By June of 1964, 2 months had passed since the Union had refused to accept
Ross' dues, with his $1,025 fine still unpaid, and his book therefore showed a
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
delinquency ; by June 30 he was to lose his good standing . He went on the out-
of-work list on June 17 and remained on if for several weeks without assignment.
On June 25 Roberts referred operator McRae, the vice president of the local, to
a job at Beasley Bros., Inc., and on the 29th he referred operator Mobley pursuant
to a second request for an operator at the same project by the same employer.
These facts appear on the written records relating to these weeks. There were also
received in evidence seniority lists for other periods , together with contemporaneous
work order or job referral books, which on their face show similar disregard of
Ross' higher standing on the out-of-work lists and referral to work instead of
union members below him.
To explain away the indisputable written records for June 1964 Roberts said,
among other things, that as to McRae that member had been literally requested
by Jesse Beasley , superintendent of the company, when the call for an operator
came in . And the hiring system does provide that express request for a particular
man must be honored without regard to relative rights of any other union member.
To prove that Beasley had in fact asked for McRae , Roberts pointed to the Union's
call-in sheets for those dates, which were placed in evidence , and sure enough in
the column reserved for notation of any specific request by an employer McRae's
name does appear.
Jesse Beasley testified in support of the complaint and could not recall having
asked for McRae at all. He did say that sometime in mid-June he telephoned the
hall to request a crane operator , that he spoke to Roberts , and that the business
agent then said to him : "Mr. Ross is on top of the list, do you want him? He
is on top of the list. He is not in good standing with the local and I don't
believe his brother members will work with him." Beasley replied he had enough
trouble of his own and wanted no more. He also testified Ross was a very
competent operator.
Beasley then continued to relate that in late June he again called the hall for a
crane operator to be sent to the Black Point Tampa Electric Power Company
plant , and that is when McRae appeared at the jobsite.
Roberts testified that Beasley's call for a man to the Black Point job came at
8:12 a.m on the 25th and was recorded in the book as to all details by the office
girl, but that when he reached the office a few minutes later , instead of acting on
the call by making a referral , he telephoned Beasley to speak to him.
so I called Mr . Beasley, and asked-I told Mr. Beasley that I felt like
it was my duty to inform him, as one of my contractors , any time that there
was a possibility of labor problems or any other problems that might occur,
and that he had called for an operator and that Mr. Ross was subject to losing
his book on the 30th if he didn't pay his fine , and that there may be some
labor problems on the job, because I had been put in a position at one time,
already, to keep that job in progress , and I asked him if he knew how long
that the operator would be on the job, and he said he had no idea, that
Riley Stoker was renting the crane and unloading the material and it would
depend on how long the material came in that Mr. Ross would be on the job
if he was still out ... he asked me who else was on the list, and I started off
by calling out . Eddie McRae was the next operator right below Ross, and I
called his name out, he said , "Well, send me McRae."
It was at this moment , according to Roberts , that he wrote McRae 's name on
the work call record as having been requested by the employer and McRae was
sent out that very day.
As to the equally clearly recorded preference he gave Mobley over Ross 4 days
later, Roberts had another explanation . He called attention to writing , in his own
hand, which he says he placed on the seniority list of those days on July 3, opposite
Ross' name . The words are "taken off 7-3-64 at 5 p.m. hasn 't checked in since
6-23 about noon." The inference he wishes to be drawn from this entry of his
is that after registering on the list on June 17, Ross failed to communicate with
the hall after the 23d. The hiring hall rules do provide that if any man does not
either appear in person or otherwise call the hall at least once a week , his name
is dropped to the bottom of the list.
For Roberts to say, in the face of his foregoing admission , that the direct pref-
erence he gave McRae over Ross on June 25 must be excused on the ground that
Mr Beasley requested McRae in the first instance is a brazen mockery. Beasley
did not ask for McRae at all; all he did was yield to Roberts' threat of economic
hurt if, as the employer, he should insist upon a proper administration of the
exclusive referral system-first man in, first man out. Roberts literally "caused"
INT'L UNION OF OPERATING ENGINEERS, LOCAL 925, ETC. 677
Beasley to discriminate against Ross. More important to a fair appraisal of the
record in its entirety is the fact that in this instance, the written record-with
McRae's name inserted by Roberts at the time-would seem to justify the neglect
of Ross. In fact, as it developed, the union record now favorable to the Respond-
ent's position was false when it was made. But if records which conceivably
could support the defense must fail because of the business agent's own admission
at the hearing, what possible credence can be given to his oral testimony where its
purpose is to contradict clearly written records which, as made at the time, convict
both the Union and the agent?
Ross testified that after registration on the out-of-work list on June 17 he did
visit or telephone the hall each week through early July to keep his position cur-
rent. If Roberts is to be believed Ross did not return and the business agent struck
his name from the list on July 3 for that reason. But on the 25th, only 2 days
after Ross' last registration noted by Roberts himself, the business agent told
Beasley that the man was at the top of the crane operators list and that he would
refer him as Beasley requested, provided the employer was prepared to suffer a
work stoppage in consequence. It follows that when, 4 days later, Roberts
referred Mobley, who had registered on June 29, instead of Ross, he again know-
ingly and deliberately violated the hiring hall contracts with the various employers
by giving preference in referral to the detriment of a member whose dues the
Union had refused to accept, who was an object of the Union's scorn for having
independently filed charges with the Board, and who opposed Roberts' position as
a union officer. Roberts thereby once again caused the Beasley Company to
discriminate against Ross in his employment opportunity 4
If the record contained nothing more than the foregoing I would find, as in fact
I do find, that by Roberts' conduct in referring McRae and Mobley to jobs in June
1964 in preference over Ross, the Union as well as the business agent violated
Section 8(b)(2) of the Act, as alleged in the complaint.
Illegal Preference to Union Member Guess Over Ross in the Mulberry Job
in July and in the Bushnell Job in August
On the out-of-work list at the end of July 1964, Ross appears as having regis-
tered on July 10, with no work referrals from July 28 into August. Guess, another
operator, was referred to the Mulberry Construction Company on July 28, at an
American Agricultural Chemical Company plant being built; Guess was also
referred to a job with the Bushnell Steel Company, to report on August 3.
Carl Polk, superintendent of heavy equipment for the Mulberry Company, testi-
fied that when he called for a man shortly before Guess arrived, he spoke to
Roberts:
I called for on operator and he told me Mr. Ross was next up, and I asked
him what kind of an operator he was, and he said he was a good operator
but some men had walked off the job. I said, Mr. Roberts, I can't afford to
have any more trouble down there. I said, You'll have to send me somebody
else to take his place .. . . I inquired what his trouble was. He said he had
been fined . . . . He said the men had walked off the job when Mr Ross had
come on the job.
Polk said he did not ask for Guess by name.
It was after this conversation that Roberts sent Frank Guess to work, first for
Mulberry Company and a few days later for Bushnell Steel. Ross testified he was
at home hoping to be called to work through August 3, and then left town for a
period to seek work elsewhere. I have no reason to disbelieve him on this score.
The preference given Guess again on August 3, pursuant to a July 29 request
for an operator by Bushnell Steel, is also stark on the Union's writen records.
In their brief the Respondents excuse this obvious preference on the grounds that
Mr. Weigel, hiring boss of that company, had said he did not want Ross. For
Weigel's inclination to steer clear of Ross during those days, and the pressing
4 The employer call-in record for the June 29 request, which was filed filed by referring
]Mobley on the same day, contains a notation reading "Don't want Ross " It is possible
that Jesse Beasley used these words at that time, although they could as well have been
read into his language by the union agent who recorded the request But even assuming
such a statement by the employer then, it must be considered as part and parcel of the
same intimidating things Roberts had said to him 4 days earlier
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concern which impelled him to fear Ross ' presence on any of his projects, see his
conversations with Business Agent Roberts in the incident of strike next following
in this report.
The discrimination against Ross in both the Mulberry and Bushnell Steel jobs
on July 28 and August 3, 1964, are clear on the record.
The Beasley and the Mulberry companies followed Roberts' advice, accepted
operators out of order from the seniority lists, and had no "labor problem" on
their jobs . There were other employers who acted with independence , only to
find that Roberts' prediction of "trouble" came true.
Bushnell Steel Company Uses Ross in July: Strike
Early in June 1964 , Roberts had occasion to talk with Weigel , area hiring super-
visor for the Bushnell Steel Company . According to the business agent : "Well,
between June the 1st and before June 12th I mentioned to Eddie Weigel that Ross
had a fine on him and that if the didn't pay this fine, there was a possibility he
was going to lose his book." At that time Ross was working for Bushnell Steel.
Roberts said he spoke to Weigel about Ross again on June 12, when Weigel
called for a crane operator , and was interested in obtaining Ross again for use at
Black Point. Roberts' answer to him.
I would refer him back, and then at that time I mentioned that Ross
was getting pretty close to the time when his book would be suspended, and
that I would inform Ross I had all intentions of referring Ross back, or out
of turn with when his turn came on the list, but if Ross was working for
him after his book was expired , or he was suspended , and he had any labor
problems, that I definitely did not want him to hold myself and Local 925
responsible because we would have nothing whatsoever to do with it.
Weigel said he would "have to see."
Later that same day, Roberts called Weigel and asked whether the company had
decided to keep Ross or replace him with another man . Weigel said he thought
it had been understood, in their earlier conversation, Ross would do the work, and
then Roberts told him: "All right, but remember I told you I didn't want you to
hold me or the Local responsible for anything developing out of Ross' not having
a book." Roberts completed his recital of this business with saying that the
next morning Weigel called again, said the company had decided to keep Ross,
but he was worried about the situation , and asked the business agent-"man to
man"-what he would do in Weigel 's place . Roberts answered: "Well, if I was
in your place, and I didn 't know whether I was going to have any problems or
not, I believe I would put Ross on the 40 ton crane ...."
As Weigel recalled, Roberts advised him early in June of more widespread
"problems" if Ross were used . "Mr. Roberts told me , at that time, Dewey Ross
was under a heavy fine and that if I should put him to work that it may affect
the rest of the engineers on the job and also affect my other jobs around this
vicinity and jurisdiction."
On July 24, there was a complete work stoppage at the Black Point project.
Heritage , Local 925 steward on the job and member of the Union 's executive
board , was operating a crane for Stone & Webster , the general contractor, under
whom Bushnell acted as subcontractor. As soon as Ross arrived that day to
operate Bushnell 's machine , Heritage quit ; all other crafts ceased work with him.5
r ,Weigel had called the hall for an operator the day before , on the 23d , and the
request was received by Assistant Business Agent Poynter. On the out of-work list
Ross was then above Melvin Madderon, president of the Local. Poynter recalled the
conversation as follows: "Mr . Weigel asked me who I was going to send him out there
He asked me who I had on the list. I looked on the list and I believe I told him Dewey
Ross, I believe was the first crane operator I had on the list, and he said 'Poynter, I
don't want any trouble out here on the job,' and I said 'Well , I hope you didn't have
any,' and that was the end of our conversation "
Poynter thereafter made a referral slip sending Madderon to the job. Asked at the
hearing why he had passed over Ross , he testified : "Well, the man told me he didn't
want no trouble on his job and I just had a feeling he would have if I sent Mr . Ross on
that job, and because there was a bunch of men out there that were very unhappy with
the things that were happening in the Local union "
Before Madderon could go to work, his referral was canceled and Ross was sent instead.
INT'L UNION OF OPERATING ENGINEERS, LOCAL 925, ETC. 679
Bushnell 's superintendent then sent Ross to his office where Domblazer, the com-
pany manager, paid him off and discharged him, saying he could not afford strikes.
Domblazer testified that when all his men quit, they told him it was because
Ross had no paid book . The next day all employees returned to work.
Azzarelli Company Uses Ross in August: Strike
The pattern of events revealed in the Bushnell incident was virtually repeated
the following month at the construction site of the Exchange Bank Building in
Tampa. On August 25th, Mr. Azzarelli of the Azzarelli Construction Company,
a subcontractor on the project, called Roberts to ask for a clamshell operator.
According to Roberts: "I told him that the only man on the list that I had quali-
fied to run a clamshell was Mr. H. D. Ross, who was having some problems with
walk-offs in the area, and Mr. Azzarelli didn't seem concerned with that. He
instructed me that he had to have a clamshell operator and to send Mr. Ross to
that job the next Monday morning."
When Ross arrived at the jobsite as scheduled, there were two other members
of Local 925 at work for Bushnell Steel, Zorn, union steward, and Smith, his oiler.
As soon as Ross started his machine, Zorn and Smith quit According to Porter,
another Azzarelli workman, Zorn told the ironworkers on the project that Ross
"had been suspended from the Union," and all ironworkers left their employment.
Soon all the employees on the project struck, except Ross, who alone continued
with the clamshell until 10:30, when he could do no more because of the absence
of all other workmen. Ross left and by 4:30 p.m. all the workmen returned to
their jobs.
A day or two earlier Gibson, a nonunion man, was operating a crane for
Azzarelli in this same project. Zorn and Smith checked with the union hall, Zom
spoke to Roberts at that time, and the two men continued to work on the project
nonetheless.
J. S. Stephens & Sons Uses Ross in October: Strike
Stephens & Sons was a general contractor in the construction of the Madison
Parking Garage in Tampa and used Ross on and off from September through the
end of October. For a time there were no members of Local 925 employed by any
contractors at that project. On October 7 Roberts stopped to chat with James
Medlin, job superintendent for Stephens, and asked how come Ross was operating
a clamshell without an oiler. Medlin said ". . . don't come here with that stuff
I know several other rigs operating without an oiler " Roberts replied ". . . that
is all right, I don't have an oiler that would work with him anyway." Roberts
then told Medlin ". . not to be surprised, or that it could happen, that in the
future, as long as Ross was on my payroll, none of the members of Local 925
would work for us . I mean on any job that J. S Stephens & Sons might have
under construction." Medlin protested this was not fair, what with the man having
been referred from the union hall itself, and Roberts then said: . with the
setup the way it is, I have no alternative but to send the man that is at the top of the
list unless you refuse to hire him."
Roberts' version of this conversation was only slightly different.
I drove in and he started talking and he asked me why I was crucifying
Ross and I told him that I wasn't crucifying Ross, and he told me "that this
is not what he said," so I proceeded to tell him the whole story, and that at
the end of the conversation he had changed his mind and he said "well, there
is always two sides to the story."
Then, we continued in conversation. I told him that there had been a
couple of walk-offs on the jobs because of Ross, but none of our members
even knew that Ross, as far as I knew, was on his job, but probably some
of them would be riding by-it was in the downtown area-and see him over
there working and then they would all know it before long, and if he needed
any other operator there was a possibility I may have a problem putting the
men on the job, getting them to work, and he asked me did I mean this job
or all of Stephens' job and I told him we were talking about this job but I
had no way of knowing how this thing was going to spread.
On October 17 the Raymond Concrete Piling Company came to the site as a
subcontractor; by the 20th the first union men arrived, Free, an operating engineer
with a working permit out of Local 925, and Ward, a fireman . They unloaded
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their machine on that day and were scheduled to start on the 21st . That morning
Ward told Warren Ellis, Raymond 's superintendent , he would not work with Ross
"because the men voted not to." Bastion , Raymond 's manager, then asked to see
Ross' union book and noted it was stamped "dues paid October 19 ." On the 22d
both Free and Ward returned but again refused to work with Ross present. Ward
even told Ross he had tried but failed to locate Roberts and was therefore "in a
bind." The two union men held off from work again on the 23d , when Ward
went to the union hall and was sent to work at Lakeland , another Raymond Con-
crete job. On Monday, October 26 , Ross moved heavy equipment from the
Stephens ' yard to the parking lot project; within 10 minutes Raymond 's employees
quit again , Ward repeating he would not work with Ross. Ross left, and before
the day was out both Free and Ward resumed working.
Incidents of 1963
The complaint also alleges misconduct by the business agent in causing illegal
discrimination against Ross in 1963 These are activities with which the first
charge (Case No. 12-CB-734) was concerned, and formed the basis of the Tanuary
1964 settlement agreement. In his complaint, issued December 9, 1964, the
Regional Director set that settlement aside; there is no contention, nor could it
be argued, that such action was improper in the light of subsequent events revealed
by investigation of the second charge.
The Manta Incident of November 1963
J. L. Manta, Inc., out of Chicago, started a long-term construction project near
Tampa in the fall of 1963; it agreed in advance with Local 925, in writing, to
utilize its hiring hall as the source of operating engineers in accordance with the
area agreement. On November 27, Roberts, in person, received a call for an
overhead crane operator to report for work on Monday, December 2. Roberts
knew the assignment would last several months. The out-of-work roster for this
period, in evidence, shows Ross at the top of the list for November 20 through
December 6. It shows no assignment in the interim to him. A work order, also
received in evidence, shows that on November 29 Roberts, in his own hand, referred
Herman Lucas, another union member, to this lobs Ross was then out of work
and the General Counsel says these simple facts, objective and conceded, prove
another clear example of the Union having caused illegal discrimination against him.
Ross said he stayed at home throughout the Thanksgiving weekend, or had his
wife attend the telephone, expressly because he anticipated a long-term referral to
the Manta project; he added Roberts first called him at about 3 p.m. Saturday, Novem-
ber 30, to offer him a short assignment at a mine and another at a St Petersburg
aquarium, but that he refused these and demanded to talk to the business agent
personally to protect the improper referral of Lucas in his place. Roberts admitted
he refused to talk to Ross in the presence of witnesses, a few days later Ross filed his
first unfair labor practice charge.
In his rambling, long-drawn testimony, Roberts sought to evade the inescapable
finding dictated by his own records, with a mass of confusing, inconsistent, irrelevant,
and highly unpersuasive details. He told a story of having written down the details
of the Manta call for a crane operator on a slip of paper which he placed in his shirt
pocket on Wednesday, the day before Thanksgiving, a garment which he removed
and hung in his office before he went hunting and never looved at aeam until Satur-
day afternoon, the 30th, when he returned to the hall. He added that when he
reached his office. Poynter, the assistant business agent, told him he had been trying
to reach Ross by telephone to offer him certain other assignments, that Ross was
not home but that his wife had taken the call and said Ross would call back. Roberts
also testified he waited until 2.30 but Ross did not call back, and that he then talked
to Ross-about the mine and aquarium jobs-"sometime Saturday afternoon or
Sunday, I think." Asked whether he had already filled the Manta job by the time
he spoke to Ross, he answered, "I don't remember whether I had or not."
Early in his testimony Roberts tried to create the impression he had never offered
this job to Ross at all. "Piobably I didn't call him because he told me he couldn't
climb " Vaguely he kept referring to earlier dislike by Ross for dusty or high climb
cranes Roberts then insisted he never gave any other reason for not having referred
6A letter from the chief accountant of the Bethlehem Steel Corporation, dated Febru-
ary 23, 1965, solicited by the General Counsel, states that Herman Lucas worked for
that company in Tampa from November 25 to 29, 1963, when he "quit"
INT'L UNION OF OPERATING ENGINEERS , LOCAL 925 , ETC. 681
Ross. Confronted with his earlier affidavit , dated December 31, 1963, to a Board
field investigator, he then admitted having called Ross to offer him the job and only
then reaching for some other person because Ross did not answer the telephone.?
Roberts even threw in the statement Ross had told him he did not want to operate
the Manta overhead crane on this job. Later he said this happened 2 months later.
What seemed to be the business agent's final defense position at the hearing was that
the reason why Lucas got the job instead of Ross was simply because Ross was not
at home when Roberts wanted to give it to him in the first instance.
All this is but another example of the way Roberts kept shifting his testimony to
suit the needs of the moment throughout his long recital . This incident parallels his
attempt to invalidate the union records of 1964, when Ross was deliberately passed
over for the Beasley Brothers job. The work order in favor of Lucas is dated Novem-
ber 29, and was written by Roberts himself. Roberts' constant harping at the hearing
upon Ross ' earlier requests not to be sent to dusty jobs or to high cranes appears as
a plain attempt to befog the direct facts and to confuse ; all of it becomes nonsense in
the face of his final clear statement that he tried to call Ross and wanted to give him
the job. Further , he even insisted that 2 months later he offered the very same type
of crane work on the Manta project to Ross, when to accept it meant leaving a day-
time job for a precarious third-shift assignment of uncertain duration . Both Roberts
and his assistant , Poynter, kept speaking of Ross not calling back the hiring hall on
Saturday , the 30th, as Ross' wife said he would . But all this can have nothing to do
with the issue of this particular discriminatory assignment , for Roberts also insisted
he did speak with Ross that very day by himself calling Ross , offering him other jobs,
and, in the final absurdity , even suggesting he talked to Ross before finding the work
call slip in his old laundry shirt . Against the clear documentary evidence that Lucas
was assigned on the 29th by Roberts , that the call had come in several days earlier,
that Ross was above Lucas on the out-of-work list that day and the business agent knew
it, his total story of attempted telephone calls the next day appears as a complete
fabrication . This report cannot reflect his unending evasions and irrelevancies as a
witness; on the basis of his demeanor , as well as the nature of his statements, he was
not a credible witness.8 Clearly, his explanation cannot serve to offset the direct
evidence shown in the record documents.
The Foster-Wheeler Incident in July 1963
Like Roberts , Ross, too, was emotionally involved in this entire sequence of events,
as well as during his appearance at the hearing ; his testimony must therefore be taken
with a grain of salt. The pertinent factual findings , however, do not rest upon his
oral testimony to any meaningful extent. The most believable witness of all was
Margaret Faltus, a lady who worked in 1963 as a part-time assistant to Massaro, the
office secretary at the hiring hall . She was practically the only one of the many
witnesses who had no interest in the outcome of the proceedings , and she testified
in a very persuasive and credible manner.
In the last week of July 1963, from her outer office desk , she overheard Roberts and
Massaro speak of a "long job " coming up . She heard Roberts say to Massaro "He
wanted her to be a witness that he called for three times for a long job, that he had
somebody else for the job, but he had to call Mr. Ross and he wanted her to be a
witness for that, and she said she wouldn 't make a good witness because they would
say anything she'd say would be for him ." Massaro called to Faltus to listen in on
her extension wire: "Margaret , I want you to listen in on this conversation . I
want you to be a witness that we tried to get Mr. Ross for this job ." Twice Faltus
did as told , and a third time was asked to and did lean toward Massaro to hear
7Roberts ' affidavit reads:
I called Ross and talked to him about the cherry picker and air compressor
jobs which he refused to take , I thereafter gathered up my laundry in my office at
which time I discovered the Manta note , and I immediately tried to call Ross again
about the Manta job, and although I tried his number two or three times that after-
noon ( Saturday afternoon , November 30, 1963 ), there was no answer . My attempts
to contact Ross on the Manta job took place , as stated above, after I discovered the
mislaid piece of paper . . . .
In the light of his total testimony, especially his final statements that he tried to call
Ross on Saturday , the 30th , I deem the pencil notation on the back of the Lucas work
order , dated November 29, which reads "Ross no ans, " an unreliable record of past events
Inexplicably , the record of this pencil notation was placed in evidence by Mr. Roberts'
counsel , who also asked him, at the hearing, why he had not called Ross to offer him
the job.
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whether a third call was answered by whatever number Massaro was dialing. Faltus
was positive Massaro did not dial the number Ross had left at the hall (there was a
telephone company strike and the men left telephone numbers where they could be
reached); she said the number Ross had left, as well as all the telephones in Ross'
area, started with the high digits 988, and that Massaro dialed others instead. The
first two times Massaro dialed there was a buzz but no answer; the third time there
resulted no ring at all. In the end, still according to Faltus, Massaro said to her:
"Well, now I want you to be a witness that I tried three times and couldn't get Mr.
Ross . . . it's okay that we can get the other man."
These conversations were denied by Roberts and Massaro; Massaro said she made
no calls to Ross at all that day and Roberts insisted it was he who called him several
times and received no answer. I do not believe Roberts, and as between Faltus and
Massaro, whose demeanor and total testimony were unconvincing, I credit Faltus.
The real significance of Faltus' testimony is in highlighting the Union's attitude
toward Ross in still another situation where the current records convict the Respond-
ents without equivocation while the business agent asks that they be ignored and his
personal recollection of things be accepted instead.
In July 1963, Ross was at a certain position on the seniority list. He worked several
short jobs for Gould Company, a crane rental company, on July 23, 26, and 29;
these jobs lasted 5, 41/ , and about 4 hours, respectively. When he finished on the
29th, he returned to the hall and was marked reregistered that same day. He was next
sent out on the 31st, to a winch truck he was unable to operate and was back
at the union hall by noon that same day.
Two other operators, Howard Mobley and Eddie McRae, were below Ross on the
list. The work order book for this period shows Mobley was referred to a crane job
for the Foster-Wheeler corporation on July 29, and McRae referred to the same
project on July 30, for that same company on another crane. The Foster-Wheeler
Company was constructing a chemical plant and it was common knowledge that
crane operators' work would be long and steady there. In fact, McRae worked at
least 4 or 5 months pursuant to the July 30 assignment for which Ross was ahead of
him on the list.
Roberts was asked at the hearing about these referrals. He said that on July 29,
when he sent Mobley to Foster-Wheeler for one of the assignments, Ross was already
out on one of the Gould jobs. And, so far as the evidentiary documents show, this
was true, for Ross is marked both in and out on July 29. The matter of precisely
at what hour of the day these assignments were made, or how much Roberts knew
about the relative desirability of a Gould versus a Foster-Wheeler job when he sent
these two men out that same day, is another matter.
As to the McRae referral of the 30th, when Ross unquestionably was waiting for
work, Roberts simply said he tried to call him but could not reach him. On the back
of the pink carbon copy of the July 30 referral which sent McRae to this job appears
the writing- "Ross phone out of order called 988x3150 No. given line busy three
times." Roberts said he made both the calls and the notation. I do not believe him.
His absolute unreliability as a witness is clear on the record as a whole. The office
girl Faltus heard him say he intended only to create a false record of having tried
to obtain Ross. As in much of his explanation of the paper records, here too he
tried to befog the plain question in a manner which only proved all the more why
his testimony must be rejected. The Respondents proved that early in August Ross
filed a claim for disability compensation; he dated it back to the middle of July and
thereby shortened the waiting period before payments started. He was paid through
the end of September. The Respondents also proved in detail how Ross had been
to a doctor as early as June, how he had suffered chest pains, and even how the Union
had been cautious late in October to be sure he was fully recovered before referring
him out to work again. But there is no evidence that any of this incapacitated Ross
from work before August, or that before the failure to refer him to the Foster-Wheeler
job on July 30, Roberts even knew what Ross was doing with doctors. There is no
evidence, nor is it claimed, that the reason why he was not referred instead of McRae
had anything to do with Ross' physical condition. The several jobs to which Roberts
referred him on July 23, 26, and 29 may have been of short duration, but there is
no indication they were chosen for being less strenuous. Entirely apart from all
this, if Roberts is to be believed he tried repeatedly to locate Ross to give him this
particular assignment. But if he wanted to use the man, certainly evidence of physical
condition is totally irrelevant; it shows instead that the Respondents were seeking to
cover some other motive. I therefore find that Roberts simply ignored Ross when
he made the highly desirable July 30 assignment to McRae out of order.
INT'L UNION OF OPERATING ENGINEERS , LOCAL 925 , ETC. 683
There is a suggestion in the General Counsel's position , as indicated in his brief,
that the referral of Mobley to the Foster -Wheeler project on July 29 was also a
deliberate discrimination against Ross. In this instance what records were kept do
not affimatively establish that Mobley was referred out of turn with respect to Ross.
Both the men appear on the documents as having been sent out on the 29th, and Ross
returned the same day, after completing his assignment , and signed in again on the
out-of-work list. A finding that Roberts either sent Mobley out ahead of Ross that
day, or referred Mobley after Ross had already returned to the hall to await another
assignment , would rest , according to the General Counsel, on the facts that no records
were then kept of precisely when requests for operators came in, there is no showing
of the hours of the referrals , Roberts knew Mobley's referral to be more desirable
than the one Ross received , and the business agent was in a position , if so inclined,
to shuffle the assignments to suit his fancy. While all this may be true it adds to
nothing but suspicion , and a proposal that because Roberts is shown to have been ill-
disposed toward Ross generally, it must be assumed he acted illegally on this occasion
also. The Respondents ' records constituting the most solid basis for resolution in this
case, fairness, and consistency require a conclusion that this allegation of improper
conduct has not been proved.
Conclusions
Improper Use of Exclusive Hiring Hall
The fact of the business agent having passed over Ross on the out-of-work lists
and referred other union members in his stead is thus definitely established by the
evidence . He was shown to have done this on six occasions , twice in 1963 and four
times in 1964 . In each instance the defense rests upon the assertion that Roberts
did not bypass Ross, that what appears as recorded discriminations against him were
really not so . The Respondents therefore do not reach the question of what was
the business agent 's reason if in fact he did cause repeated employment discrimina-
tions against Ross.
The answer is clear, on the record in its entirety and particularly in view of the
statements made by Roberts to the various employers who acceded to his advance
notice of possible"labor problems "and avoided strike by not insisting upon the top
man on the seniority rosters. Roberts was the moving force in setting union sentiment
generally against Ross; it was he who brought the first charge against him in August
1963. He had already announced , at the time of the 1962 union election for business
agent, his intent to utilize his control over work assignments to discriminate against
the man. He repeated this resolve when Ross was convicted within the Union by
priding himself with having discriminated against a white man . No doubt the unfair
labor practice charges filed by Ross, naming Roberts personally and resulting in a
$200 payment by the Union , served to whet the business agent 's ire further. And
after Ross refused to pay the $1,025 fine, the Union 's own rules ordained exclusion
from membership in consequence . These are the very forms of activity by a union
member. or by any employee , which unions may not use as a reason for causing dis-
enmination by employers , and which , if found to be an employer 's motivation, prove
violations of Section 8(a)(3). Ross was literally being punished by Roberts because
of the operator 's "union activities ," for when Roberts told the various employers
that Ross ' good standing was about to fail, or that he had not paid a fine, he was
articulating the very statutory words which define the heart of unfair labor practices
under Section 8(b)(2) of the Act.
There is no persuasion in the Respondents ' contention that because Roberts did
not say to Jesse Beasley , or to Carl Polk , of the Mulberry Company, that the Union
would strike if they employed the top man on the seniority roster, but only that the
men might refuse to work, there can be no finding that it was the Union or Roberts
himself who "caused" them to accept the lower man instead. The applicable principle
was stated in the Board 's decision in Chief Freight Lines Company , Ill NLRB 22:
We reject the argument that a finding of "cause or attempt to cause," under
Section 8(b)(2) of the Act, may only be predicated upon direct or express
threats of retaliation by a union 's agents. It is enough that the union's conduct
reveals an intent to arouse the employer 's fear that the hire or reemployment
of an applicant will result in economic pressure against him.
I conclude , on the basis of the record in its entirety , that by referring McRae to the
Beasley job on June 25, 1964, and Mobley on June 29, 1964, Frank Guess to the
Mulberry job on July 28 and to the Bushnell job on August 3, 1964, Howard Lucas
to the J. L. Manta job on November 29, 1963, and McRae again to the Foster-
Wheeler project on July 30, 1963, all contrary to the exclusive hiring hall contracts
in effect which recognized Ross' priority in employment rights on the referral list,
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union, and Roberts as its agent, caused the employers to discriminate against Ross.
in violation of Section 8(a)(3) of the Act, and thereby in each instance violated
Section 8(b) (2), as alleged in the complaint.
The Responsibility of the Union and of Business Agent Roberts for the Strikes
On June 30, 1964, Ross ceased being a union member in good standing. This
disadvantaged status was the calculated result of the Union's purpose in refusing to
accept his proper offer of monthly dues. Three days later Roberts formally advised
the members at the first possible meeting of Ross' now vulnerable position. All this
flowed from Ross' refusal to pay the $1,000 union fine of 3 months earlier The
business agent's failure to refer him to the Beasley Company jobs in June, assignments
to which Ross would otherwise have been entitled, was the first step taken towards
giving economic meaning to the expulsion from membership.
Five times Roberts warned employers who called the hiring hall that if they chose
to employ Ross there would be strikes by union members-which be called "prob-
lems" or "walkoffs." Three companies ignored his admonitions and in each instance
strike did follow immediately, by both Local 925 members and other unionized
employees following their example. That the men struck, that their object was to cut
Ross off from employment, and that the underlying reason was his loss of member-
ship-are all clear on the record and admitted. The Respondents' defense to all of
this is that the General Counsel has not proved that Roberts, on behalf of the Union,
or in his official capacity, in haec verba told his members to refuse to work with Ross.
At some points the transcript of testimony reads like a shell game-with communi-
cation between Roberts and operators the elusive kernel. When Ward, the union
fireman who several times in just a few days refused to work on the Madison Parking
Lot project, inquired of the business agent or his assistant exactly what the problem
over Ross was, and asked whether or not he should work, he received enigmatic
replies. More than once Poynter, Roberts' assistant, answered Ward with "you
haven't been coming to the meetings lately." Roberts gave him the same equivocal
answer. Indeed Ward's total testimony of his repeated visits to the hall for the express
purpose of learning why the union members were aligned against Ross is virtually
incoherent. His insistence in the end that he never did learn what all this was about,
although he did strike, is totally incredible. While all this was going on, some time
in September 1964, Roberts referred Ross to a job and the latter asked whether the
men would walk off again. The business agent told Ross he ".. . did not have the
right to ask him that question any more."
To avert the inference that this was a union activity, led and instigated by the
manager-in-chief, a conclusion strongly arising from the sequence of events and from
the direct evidence of illegal discrimination caused to Ross by the business agent on
other work projects, the Respondents called virtually every union member identified
as having refused to work whenever Ross appeared on the job. The purpose of their
testimony was to prove that each union member acted independently of the feelings
of any other, that theirs was not union activity at all, and that every striker should be
considered apart from the common behavior of all his coworkers. One wonders what
the Union's position would be if Free and Ward, union members who together quit
the Madison Parking Lot job, had done so not because Ross was not in good standing
with the Union, but because his physical condition endangered other workmen near
the crane Would the Union agree with an employer's contention that each man
acted independently of the activities of the other, that they were not engaged in con-
certed or union activities, and that they could therefore separately and individually
be discharged for quitting?
Wayne Prickett, an operator, said he struck at the Black Point job in July because
Ross "did not believe in unionism . a suspended man." Jerry Kries walked off
the same job, as he testified, because Ross "has been an agitator since I have known
him." A. M. Heritage was a crane operator and the acting union steward on this
job: he left work and told his oiler "to do as he saw fit." Asked why he struck his
answer was: "I don't know as I have to have a reason ... I walked off as an
individual . . . not as a job steward."
John Porter was an apprentice engineer on the Exchange National Bank Building
job in August: he said Zorn, whom he called the Local 925 steward. made the "walk
off" and told the ironworkers, who then also struck, the reason was because Ross "has
been suspended from the Local." Porter explained that he struck because "its just
customary when everybody walks off your craft, you walk off . . . if you had been
a union member you don't stay on a job when the steward and all the men walk off."
INT'L UNION OF OPERATING ENGINEERS, LOCAL 925, ETC. 685
Zorn himself testified he left because Ross "wasn't right with our union . . . he
brought charges . . And Anders Smith, Zorn's oiler, added he quit because
"I am 21 years old and got a mind of my own. His book ain't like mine, I abide by
the rules." Ward, the fireman who struck at the Madison Avenue Parking Lot job,
was also asked why he quit- "I just had the feeling I didn't want to go to work."
All of these employees denied that either of the business agents told them not to
work with Ross, or that there was any decision by the Union, as such, to engage in
a strike to prevent him from working. Some even added that on certain occasions
Roberts or his assistant instructed them to return to their jobs after they had walked
,off, although in no instance did any of them do so until Ross had been removed.
Were the Union and Roberts responsible for these strikes? This aspect of the case
presents a question of circumstantial evidence. The uniformity of the members'
refusal to work with Ross, the considerable number of strikers involved, the repetitive
incidents shown, the unpersuasive assertion by each and every striker that he acted
without regard to his fellow members' like and simultaneous strike conduct-anti-
thetical to the basic traditions of unionism-are facts which point strongly to union
activity, inspired and guided by the Respondents. Several times the members turned
to the union hall for guidance during these work stoppages. The conclusion is hol-
stered by the Union's failure to take disciplinary action against any of the striking
members despite the stated purpose in the hiring hall contract to prevent "work
stoppages." Further, Zorn and Heritage were union stewards and each led one of
the strikes. When Zorn walked off the Exchange Bank Building, assertedly indifferent
to what anyone else might do, he told the ironworkers that Ross had been "suspended"
from his union, and everybody struck the job. A union steward does not speak in
a vacuum. While the business agents now swear they told the members to return to
work, when fireman Ward several times went to the hall to learn what the "trouble"
was, both Roberts and Poynter told him he had not been "to the meeting," where
Ross' suspension had been announced. It has been held with court approval that in
circumstances like these a union is responsible for like conduct of its stewards, even in
the absence of direct evidence that the union ordered its members to refuse to work
or to walk off a job .9
To these facts must be added the most positive proof of all, the business agent's
resolve to assure employer discrimination against Ross. Single-handedly he brought
this about six times, so far as the General Counsel was able to prove. Again and
again he told employers that pressure to remove Ross would come from the union
members if the men were hired. He knew and predicted this would happen; he
warned the companies; is it too much to believe he also intended this results But
all this was action by the Union itself, for there can be no contention that Roberts
acted "independently" of the Union. In the total circumstances the inference of
overall intent to cause discrimination is warranted, and the counterassertions of the
individual employees, testifying long after the events in defense of their union, cannot
countervail.10
"Although there is no direct evidence that the Respondents issued a strike call,
this is not determinative of the question of their responsibility. For we nevertheless
find, in the circumstances detailed below, cogent evidence that the Respondents,
though scrupulously avoiding any outward appearance or participating in the strike,
actually instigated and continued the strike . . International Union, United
Mine Workers of America, etc. (Jones & Laughlin Steel Corporation), 83 NLRB 916,
enfd. as modified 84 F. 2d 392 (C.A.D.C.), cert. denied 340 U.S. 934. "A strike
call may be given in forthright fashion, or informally in a manner which is under-
stood by the initiated . . It is true there is no direct evidence on how the
Respondents called the meat market employees out on strike. But the critical ques-
tion is not how the Respondents gave the strike call but whether, no matter how,
they did give it." Amalgamated Meat Cutters and Butcher Workmen of North
America (A.F.L.), Local No. 421 (The Great Atlantic and Pacific Tea Company),
81 NLRB 1052. These are the principles of industrial experience today which
govern the issue of the Respondents' responsibility for the strike conduct in this case.
I find, on the basis of the facts set out in this report, as well as all other evidentiary
details appearing on the record but not sufficiently substantial in their varied
0N.L.RB. V. International Brotherhood of Boilermakers , Iron Ship Builders, Black-
smiths, Forgers and Helpers , Local No. 83 ( Combustion Engineering ), 321 F. 2d 807
(C A 8), enfg. 130 NLRB 184.
10 Cf. Local 760, International Brotherhood of Electrical Workers, A.F. of L. ( Roane-
Anderson Company ), 82 NLRB 696.
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
materiality to the issue to be restated here, that Local 925 and its Business Agent
Roberts were responsible for the strikes at the Bushnell Steel Company on July 24,
1964, at the Azzarelli Construction Company on August 26, 1964, and at the Stephens
company on October 26, 1964, and that by such conduct they caused the various
employers involved to discriminate against Ross in his employment, thereby in each
instance violating Section 8(b) (2) of the Act.
IV. THE REMEDY
In order to remedy the unfair labor practices found I shall recommend that the
Respondents be ordered to cease and desist from such conduct and to take certain
action designed to undo its effect and to effectuate the policies of the Act. The
Respondents will be ordered to notify Bushnell Steel Construction Company, Azzar-
elli Construction Company, and J. S. Stephens & Sons that they have no objection
to the employment of Herman Dewey Ross. The Respondents shall also be ordered
to make Ross whole for any loss of pay he may have suffered as a result of the strike
activity affecting the operations of these companies, and as a result of Roberts' con-
duct in the six occasions in 1963 and 1964 detailed above, in referring other union
members to work while Ross was above them on the Union's seniority roster. Any
amounts due shall be paid with interest at the rate of 6 percent per annum.
The major offense with which the remedy must deal if its proper purpose is to be
achieved is the pattern of continuing discrimination in the operation of the Union's
hiring hall. The record clearly reveals a fixed determination by Business Agent
Roberts, alone in charge of the hall, to disregard applicable statutory provisions and
to persist in his illegal treatment of Ross through the device of the exclusive referral
system. Accordingly, Local 925 must be ordered to keep permanent records of its
hiring and referral operation which will be adequate to disclose fully the basis on
which referral is made, and, upon request of the Regional Director of the Board or his
agents, to make available for inspection, at all reasonable times, any records relating
in any way to the hiring and referral system.
On the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Beasley Brothers, Inc, Mulberry Construction & Welding Company, Bushnell
Steel Construction Company, J. L. Manta, Inc., Foster-Wheeler Corporation, Azzarelli
Construction Company, and J. S. Stephens & Sons are employers engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. Respondent Union is a labor organization within the meaning of Section 2(5)
of the Act, and Respondent Roberts is an agent of Respondent Union acting on its
behalf.
3. By imposing a fine against Herman Dewey Ross because Ross filed an unfair labor
practice charge with the Board or had failed to exhaust his internal union remedies
prior to filing charges with the Board, Respondents have engaged in and are engaging
in unfair labor practices within the meaning of Section 8(b) (1) (A) of the Act.
4. By attempting to cause and by causing Bushnell Steel Construction Company,
Azzarelli Construction Company, and J. S. Stephens & Sons to remove Ross from
his job because of his union activities, and by attempting to cause and by causing
Beasley Brother, Inc., Mulberry Construction & Welding Company, Bushnell Steel
Construction Company, J. L. Manta, Inc., and Foster-Wheeler Corporation not to
employ Ross for like reason, Respondents have engaged in and are engaging in
unfair labor practices within the meaning of Section 8(b)(2) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law, and upon the entire
record in the case, I recommend that Respondent , International Union of Operat-
ing Engineers , Local 925, AFL-CIO, its officers , agents, and representatives, and
Respondent H. B. Roberts , its agent , shall:
1. Cease and desist from:
(a) Fining employees for filing unfair labor practice charges with the Board
or for failing to exhaust their internal union remedies prior to filing such charges
with the Board , or otherwise participating or cooperating in Board proceedings.
I
INT'L UNION OF OPERATING ENGINEERS, LOCAL 925, ETC. 687
(b) Causing or attempting to cause any of the above-named employers by threat
or coercion or by engaging or inducing or encouraging union members directly or
indirectly to engage in a strike , walkout, work stoppage , cessation of operations, or
refusal to perform services in the course of employment, or by discriminatory pref-
erential hiring hall referral , to discriminate against employees in their terms of
employment because of nonmembership in the Respondent Union or other activity
involving the union , in violation of Section 8(a)(3) of the Act.
(c) In any like or related manner restraining or coercing employees in the exercise
of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which it is found will effectuate the policies
of the Act•
(a) Reimburse and make whole Herman Dewey Ross for any loss of pay suffered
because of the discriminations against him , as set forth in the section of this Decision
entitled "The Remedy."
(b) Keep permanent records of the Union's hiring and referral operation which
will be adequate to disclose fully the basis on which each referral is made
(c) Upon request of the Regional Director of the Board or his agents, make avail-
able for inspection , at all reasonable times, any records relating in any way to hiring
and referral system.
(d) Notify Bushnell Steel Construction Company, Azzarelli Construction Com-
pany, and J. S. Stephens & Sons, in writing, that they have no objection to the con-
tinued employment of Herman Dewey Ross.
(e) Post at the Union's offices and meeting hall, copies of the attached notice
marked "Appendix." ii Copies of said notice, to be furnished by the Regional Direc-
tor for Region 12, shall, after being duly signed by an official representative of the
Respondent Union, and by Respondent Roberts, be posted by the Respondent Union
immediately upon receipt thereof, and be maintained by it for a period of 60 consecu-
tive days thereafter, in conspicuous places, including all places where notices to its
members are customarily posted. Reasonable steps shall be taken to insure that said
notices are not altered, defaced, or covered by any other material.
(f) Sign and mail sufficient copies of said notice to the Regional Director for
Region 12 for posting by each of the employers mentioned above, at all locations
where notices to its employees are customarily posted within the territorial jurisdiction
of the Respondent Union, if those companies are willing to do so.
(g) Notify the Regional Director for Region 12, in writing, within 20 days from
the date of this Recommended Order, what steps have been taken to comply
herewith.12
"Should the Board adopt this Recommended Order, then, In place of "the Decision
and Recommended Order of a Trial Examiner," the words used shall be "a Decision and
Order," and In the event of court enforcement the words used shall be "a Decree of the
United States Court of Appeals, Enforcing an Order"
is If the Board should adopt this Recommended Order, said notification shall be given
within 10 days from the date of the Board 's Order; in the event of court enforcement,
it will be 10 days from decree.
APPENDIX
NOTICE TO ALL OUR MEMBERS, OFFICERS, REPRESENTATIVES, AND AGENTS
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act , as amended , you are hereby notified that:
WE WILL NOT cause or attempt to cause Beasley Brothers , Inc., Mulberry
Construction & Welding Company , Bushnell Steel Construction Company, J. L.
Mania, Inc., Foster-Wheeler Corporation, Azzarelli Construction Company, or
J. S. Stephens & Sons to discharge or in any other manner to discriminate against
Herman Dewey Ross, or any other employee or applicant for employment, in
violation of Section 8(a) (3) of the Act.
WE WILL NOT fine employees for filing unfair labor practice charges with
the National Labor Relations Board or for failing to exhaust their internal
union remedies prior to filing such charges with the Board , or otherwise partici-
pating or cooperating in National Labor Relations Board proceedings.
WE WILL NOT in any like or related manner restrain or coerce employees in
the exercise of their rights guaranteed in Section 7 of the Act.
WE WILL reimburse and make Herman Dewey Ross whole for any loss of pay
suffered by him because of our having caused the various employers above to
discriminate against him in his employment.
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL notify, in writing , Bushnell Steel Construction Company, Azzarelli
Construction Company, and J. S. Stephens & Sons that we have no objection to
the continued employment of Herman Dewey Ross.
INTERNATIONAL UNION OF OPERATING ENGINEERS , LOCAL 925,
AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
H. B. ROBERTS , BUSINESS MANAGER, INTERNATIONAL UNION,
OF OPERATING ENGINEERS , LocAL 925, AFL-CIO
Dated------------------- By-------------------------------------------
(Business Manager)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office , Room 706,
Federal Office Building, 500 Zack Street , Tampa, Florida , Telephone No. 228-7711,
if they have any question concerning this notice or compliance with its provisions.
Dempster Brothers , Inc. and United Steelworkers of America,
AFL-CIO, Petitioner. Case No. 10-RC-6018. August 24, 1965
DECISION ON REVIEW AND DIRECTION
On January 15, 1965, the Regional Director for Region 10 issued
a Supplemental Decision, Order, and Direction of Second Election 1
in which he overruled 26 and sustained 7 of the 33 challenges ; he also
sustained 1, and overruled 2 of the Petitioner's 3 objections and
directed a second election in the event a revised tally failed to show
that the Petitioner had received a majority of the valid ballots cast.
Thereafter, the Employer and the Petitioner in accordance with
Section 102.67 of the National Labor Relations Board Rules and
Regulations, Series 8, as amended, filed requests for review of the
Regional Director's Supplemental Decision, together with support-
ing briefs. The Employer also filed opposition to the Petitioner's
request for review. On June 21, 1965, the Board, by telegraphic
order, granted the respective requests for review only insofar as
they related to the Regional Director's ruling that the Employer's
group meetings constituted objectionable conduct, and his overruling
of 22 challenges, involving John Waggoner, Raymond S. Mayes,
Dennis Warren, Jim Wallace, Dorsey L. Fritts, Donald Longmire,
and the 16 employees listed in Appendix F to the Regional Direc-
i The tally of ballots for the election showed that of approximately 360 eligible voters,
356 cast valid ballots, of which 157 were for the Petitioner , 7 were for the Intervenor,
Shopmen's Local Union No. 715, 159 were against the participating labor organizations,
and 33 cast challenged ballots. The challenges were sufficient in number to affect the
results. The Petitioner filed timely objections to conduct affecting the election results.
154 NLRB No. 57.