Operating Engineers Local 139 (Agc Of Wisconsin)

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 992 (N.L.R.B. 1984)

992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 139, International Union of Operating Engi-
neers, AFL-CIO (Wisconsin Chapter, Associat-
ed General Contractors of America, Inc.) and
William J. Evans. Case 30-CB-2029
14 December 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
On 30 December 1983 Administrative Law
Judge George Norman issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed an an-
swering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, 1 and
conclusions 2 as modified, but not to adopt the rec-
ommended Order.
1 The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are Incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
We disavow the judge's statement that there is evidence to support al-
legations of discrimination against Evans and corrupt handling of the re-
ferral system by President-Business Manager Shaw and his appointed sub-
ordinates These matters were neither charged nor fully litigated
2 We agree with the judge that the Respondent's pattern of harassment
of Evans Included Shaw's internal union charge against Evans, the 2 No-
vember 1982 trial and fine, and the 7 June 1983 letter to Wisconsin's De-
partment of Industry, Labor and Human Relations (DILHR) reporting
Evans' alleged refusal to accept a job referral We find that the Respond-
ent harassed Evans because of his publication of the Ethical Engineer Ac-
cordingly, we find it unnecessary to decide whether the harassment was
also in retaliation for Evans' other dissident activities We modify the
judge's conclusions of law, recommended Order, and notice to accord
with our finding
The Respondent contends that its discipline of Evans did not violate
the Act because the Respondent's International executive board sustained
Evans' appeal and reversed the conviction and fine In support, the Re-
spondent cites Transport Workers Local 100 (Liberty Coaches), 230 NLRB
526 (1977), enfd. sub nom. Simms v NLRB, 99 LRRM 2633, 83 LC '11
10,301 (2d Or 1977) We find Liberty Coaches distinguishable That case
involved an Isolated union charge against a member, while Shaw's charge
was part of a pattern of harassment of Evans that continued even after
the International sustained his appeal Additionally, in Liberty Coaches the
union's disciplinary action did not adversely affect the charging party,
while Evans suffered the expense of traveling to the International's
Washington, D C headquarters to appeal the verdict See Teamsters
Local 162 (American Steel), 255 NLRB 1230, 1234 (1981), Sachs Electric
Co, 248 NLRB 669, 677 (1980), enfd as modified sub nom NLRB v
Electrical Workers IBEW Local 453, 668 F 2d 991 (8th Cir 1982)
We shall not require the Respondent to mail a copy of the attached
notice to each of its more than 5000 members, but shall order the Re-
spondent to publish a copy of the notice in its newsletter This remedy
will adequately inform the Respondent's members of the violation See
Peninsula ShIpbudders Assn (Newport News Shipbuilding), 239 NLRB 831,
835 (1978)
The judge recommended ordering the Respondent to Inform DILHR
that its 7 June 1983 letter was in error because Evans did not refuse a job
AMENDED CONCLUSIONS OF LAW
Delete Conclusions of Law 4 and 5, substitute
the following, and renumber the subsequent Con-
clusion of Law accordingly:
"4. By charging, trying, and fining Evans and re-
porting him to the State of Wisconsin's Department
of Industry, Labor and Human Relations on 7 June
1983 because Evans published the Ethical Engineer,
the Respondent violated Section 8(b)(1)(A) of the
Act."
ORDER
The National Labor Relations Board orders that
the Respondent, Local 139, International Union of
Operating Engineers, AFL-CIO, its officers,
agents, and representatives, shall
1. Cease and desist from
(a) Arbitrarily refusing to honor requests for in-
formation made by employees on the out-of-work
register who have reasonable need for information
pertaining to the exclusive referral system operated
by the Respondent.
(b) Charging, trying, and fining members and re-
porting them to state agencies because they engage
in Section 7 activity.
(c) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Make Evans whole for all costs incurred in
appealing the fine imposed against him at the 2 No-
vember 1982 union meeting.
(b) Remove from its files any references to the
unlawful disciplinary action and notify Evans in
writing that it has done so and that it will not use
the disciplinary action against him in any way.
(c) Post at its meeting halls, offices, suboffices,
and hiring halls throughout its jurisdiction copies
offer We shall instead require the Respondent to send DILHR a copy of
our decision, thus fully informing it of our findings and conclusions, and
leave to the state agency's expertise whether Evans refused a job offer
Member Dennis would not require the Respondent to reimburse Evans
for lost unemployment benefits if, with knowledge of the circumstances
surrounding his alleged referral refusal, DILHR determines it properly
cut him off, if Evans did not qualify for benefits, reimbursement would
be a windfall Conversely, if DILHR improperly cut him off as a result
of the Respondent's 7 June 1983 letter, Member Dennis would order the
Respondent to make him whole if DILHR has not done so She finds
that this matter can best be resolved at the compliance stage of this pro-
ceeding
The judge inadvertently stated that the Respondent sent the letter to
DILHR 6 June 1982 rather than 7 June 1983
We shall modify the judge's recommended Order to require the Re-
spondent to expunge from its files any reference to its disciplinary charge
and fine against Evans and to notify him in writing that it has done so
and that the disciplinary action will not be used against him See Sterling
Sugars, 261 NLRB 472 (1982)
273 NLRB No. 126
OPERATING ENGINEERS LOCAL 139 (AGC OF WISCONSIN) 993
of the attached notice marked "Appendix."3
Copies of the notice, on forms provided by the Re-
gional Director for Region 30, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to members are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(d) Publish, at its expense, the attached notice in
any newsletter or newspaper it prepares and dis-
tributes to its members.
(e) Mail a copy of this Decision and Order to the
State of Wisconsin's Department of Industry,
Labor and Human Relations.
(f) Make Evans whole for any unemployment
benefits lost as a result of its 7 June 1983 letter to
DILHR.
(g) Provide Evans with a current list of the
names, addresses, and telephone numbers of the 50
individuals above him and the 50 individuals below
him on each of its four districts' hiring hall referral
lists.
(h) Sign and return to the Regional Director suf-
ficient copies of the notice for posting by Wiscon-
sin Chapter, Associated General Contractors of
America, Inc., if willing, at all places where notices
to employees are customarily posted.
(i) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
3 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgement of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board"
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT arbitrarily refuse to honor re-
quests for information made by employees on the
out-of-work register who have a reasonable need
for information pertaining to the exclusive referral
system we operate.
WE WILL NOT charge, try, and fine members and
report them to state agencies because they engage
in Section 7 activity.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them by Section 7
of the Act.
WE WILL make William J. Evans whole for all
costs incurred in appealing the fine we imposed
against him at a 2 November 1982 union meeting.
WE WILL remove from our files any references
to the unlawful disciplinary action and notify
Evans in writing that we have done so and that we
will not use the disciplinary action against him in
any way.
WE WILL make Evans whole for any unemploy-
ment compensation benefits lost as a result of our 7
June 1983 letter to the State of Wisconsin's Depart-
ment of Industry, Labor and Human Relations.
WE WILL provide Evans with a current list of
the names, addresses, and telephone numbers of the
50 individuals above him and the 50 individuals
below him on each of our four districts' hiring hall
referral lists.
LOCAL 139, INTERNATIONAL UNION
OF OPERATING ENGINEERS, AFL--
CIO
DECISION
STATEMENT OF THE CASE
GEORGE NORMAN, Administrative Law Judge This
case was tried in Milwaukee, Wisconsin, on June 8, 9,
and 10 and on July 19, 1983. The original charge was
filed on January 13, 1983, and an amended charge was
filed on February 10, 1983, by William J Evans, an indi-
vidual, against Local 139, International Union of Operat-
ing Engineers, AFL-CIO (the Union). The complaint
and notice of hearing based on the charge, was issued by
the Regional Director for Region 30 on February 28,
1983, and on May 31, 1983, the Regional Director issued
an amended complaint. The complaint, as amended, al-
leges that the Union has violated the National Labor Re-
lations Act by engaging in a campaign of harassment
against a member, Bill Evans, the Charging Party herein,
to retaliate for Evans' "Section 7" activities. The com-
plaint also alleges that the Union, in violation of the Act,
is discriminatorily denying Evans' referral from the
Union's hiring hall and has denied Evans' request for in-
formation from the referral list to investigate his claim of
discrimination The Union has denied and continues to
deny Evans access to information which would permit
him to check on the operation of the referral system.
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Issues
The issues are:
I. Whether the Union acted unlawfully to restrain or
coerce Evans in the exercise of his Section 7 rights?
2. Whether the Union's retaliatory actions and its re-
fusal to provide hiring hall information violates Section
8(b)(1)(a) of the Act?
3. What constitutes an appropriate remedy if violations
have indeed occurred?
FINDINGS OF FACT
I. BUSINESS OF THE EMPLOYERS
Wisconsin Chapter, Associated General Contractors of
America, Inc. (AGC) is an organization of employers en-
gaged in the construction of buildings within the State of
Wisconsin. Associated Public Works Contractors of
Greater Milwaukee, Inc. (Public Works) is an organiza-
tion of employers engaged in water and sewer construc-
tion within the State of Wisconsin. Wisconsin Road
Builders Association (Road Builders) is an organization
consisting of employers engaged in the construction of
highways and bridges within the State of Wisconsin. Dis-
tribution Contractors Association (Distribution) is an or-
ganization of employers engaged in the construction of
underground pipeline within the State of Wisconsin.
During the past calendar year, which is a representa-
tive period, a number of member-employers of AGC,
Public Works, Road Builders, and Distribution, pur-
chased goods and material valued in excess of $50,000 di-
rectly from suppliers located outside the State of Wis-
consin. AGC, Public Works, Road Builders, and Distri-
bution have been and are now employers as defined in
Section 2(2) of the Act, engaged in commerce or in an
industry affecting commerce as defined in Sections 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Union is a large construction union with its main
office in Milwaukee, Wisconsin. The Union has geo-
graphical jurisdiction over the entire State of Wisconsin
and, at the time of hearing, had over 5000 members. Be-
sides Milwaukee, it has three additional district offices in
Madison, EauClaire, and Appleton, and eight subdistrict
offices throughout the State. The Union holds monthly
meetings at each of its offices except during the months
of January, April, July, and October, when it holds a
statewide general membership meeting.
The Union is administered by President Business Man-
ager Donald W. Shaw Sr. and by an elected executive
board. Election for those and other union offices are
held every 3 years. In addition to its 3-year officer elec-
tions, the Union hold a separate election every 4 years to
name delegates to the International Convention. The
most recent of these occurred in 1980.
President and Business Manager Shaw is responsible
for the day-to-day administration of the local union, and
has authority to hire all employees, appoint committees,
and approve administrative expenditures. Shaw is also re-
sponsible for the administration of the Union's hiring
hall. Shaw has held the position of business manager
since September 1977, when he defeated his prdecessor,
Joseph Goetz. He has held the combined president-busi-
ness manager position since 1980, when the position was
combined following the death of then-President Hiram
Calkins. The Union employs, in addition to Shaw, sever-
al dispatchers and approximately 15 business agents, none
of whom is elected, and all of whom serve at the pleas-
ure of the president-business manager.
William J. Evans has been a member of the Union
since 1964. He was hired by the Union in 1976 to serve
as a business agent in the Madison District Office by
then-business manager Joseph Goetz. Evans was em-
ployed as a business agent until Goetz' defeat in 1977,
but was hired immediately by Shaw when Shaw began
his administration.' Evans was assigned to train dispatch-
er Robert Fiege in the operation of the referral system.
Evans testified that Shaw "wanted me to instruct the
new referral officer, a dispatcher in the Milwaukee area,
Robert Fiege, on proper conduct of referrals. It became
apparent to me that Mr. Fiege was making improper re-
ferrals, and I discussed it with Don Shaw, he stated that
at the time, that he had some political debts to pay, and
he was going to refer men the way he felt. So I immedi-
ately quit, I wanted no part of it."
Starting September 1977, Evans and fellow member
Russell Retzack policed the Shaw administration and, in
November 1977, Evans started publishing a dissident
newspaper The Ethical Engineer, to expose what he be-
lieved to be improper activities by Shaw and his fellow
candidates during the 1977 campaign and the years that
followed. Publication and distribution of The Ethical En-
gineer occurred at irregular intervals and was at Evans'
own expense. The mailing list has grown to over 1500
union members. The following is a sampling of the topics
discussed in The Ethical Engineer:
(1) New referral rules proposed by Shaw and the pos-
sibility that they are illegal under the Act.
(2) Alleged use by Shaw of the new rules to obtain
jobs for his family and friends.
(3) Investigation of union officers by State of Wiscon-
sin for alleged misuse of unemployment compensation
during election campaign.
(4) Internal union charges filed against Evans.
(5) Administrative dues proposed by Shaw administra-
tion and their claimed violation of local bylaws.
(6) Local Union's negotiation of vacation fund made
up of deductions from employees' paychecks deposited
in a bank without interest, and possible abuses of such
fund
1 Shaw denied that he hired Evans Shaw's testimony was in direct
contradiction to a prior deposition in which he stated with respect to
Evans, "He was hired the following day, the same as the other people
that I hired He wasn't for the full term" (G C Exh 33)
OPERATING ENGINEERS LOCAL 139 (AGC OF WISCONSIN) 995
(7) Shaw's previous discharge as business representa-
tive after member allegedly accused him of requiring
grievance kickbacks.
(8) Claimed inadequacies in contracts negotiated by
Shaw administration.
(9) Union threat to fine and expel Evans for publica-
tion of The Ethical Engineer.
(10) Dues increase proposed by Shaw.
(11) Union expenditures and salaries of local union of-
ficials.
(12) State of Wisconsin proposal to cut wages of high-
way construction employees.
(13) Evans' own candidacy for union office.
(14) Local union proposal to combine offices of presi-
dent and business manager.
(15) Evans' protest of the 1980 delegate election.
(16) Alleged threats by Local union business agent to
state official
(17) Indictments of three union members, including
Shaw's son and a former business agent; Shaw's own al-
leged advocacy of violence.
(18) Alleged shoplifting conviction of business agent.
(19) U S Department of Labor's audit of Local 139
Evans urged that each recipient pass his copy along to
other union members.
B. Allegations of Unemployment Compensation Abuse
In November 1977, Evans reported to the State of
Wisconsin's Department of Industry, Labor and Human
Relations (DILHR) that Shaw and other officers during
the 1977 campaign, preceding their election in September
1977 registered for the Union's hiring hall but consistent-
ly refused to be referred when jobs were offered, instead,
claiming unemployment compensation benefits. They
used the referral system to determ tne the location of em-
ployees and the unemployment compensation system to
finance their campaign activities during the daytime
hours. Evans believed that the unemployment compensa-
tion benefits gave an unfair advantage to the challenging
candidates because many of the incumbents were em-
ployed full time and did not have the time and funds to
finance a full-time statewide campaign with daytime
visits to union members' jobsites. Because of his belief
that the alleged unemployment abuse affected the results
of the election, Evans included that claim in the election
protest he filed with the U.S. Department of Labor.
DILHR, in response to Evans' charge, subpoenaed re-
ferral records from the Union during its investigation. It
also subpoenaed Evans and others to testify in March
and May 1978. First the Union resisted production of
documents but eventually produced the referral records
at the May 1978 hearing. The DILHR investigation was
closed in February 1979 finding that no fraudulent abuse
had occurred, but that a loophole existed in the State's
treatment of unemployment compensation beneficiaries
who are registered at union hiring halls. Evans went to
the State's Legislative Oversight Committee about the
matter and, as a result, the committee continued to moni-
tor DILHR's administration of unemployment compensa-
tion benefits for hiring hall registrants. In early 1982, at
the urging of the legislative committee, DILHR reexam-
ined its 1978 investigation of Shaw and other dissident
candidates and concluded that the investigation had been
terminated prematurely.
C. Election Protest
Evans has filed protests with the Union and with the
U.S. Department of Labor concerning the 1977 and 1980
local officers' election and the 1980 election for delegates
to the International convention.
In connection with Evans' 1980 protest of delegate
elections, before 1980, when the president and business
manager positions were separate offices, the Union sent
seven delegates to the International convention. Of the
seven, two, the president and business manager, were
delegates by virtue of their offices and the remaining five
were elected (two from the Milwaukee district and one
from each of the other three districts). Evans claimed
that following the merger of the offices of president and
business manager, there should have been six proper del-
egates—the five elected delegates and Shaw. Evans
learned from reading the convention minutes that seven
delegates had attended on the local's behalf, including
the six proper delegates and the seventh being one who
was not even a candidate for the delegate position,
Robert Bednarz. Evans also learned from reading the
minutes that Bednarz was appointed to the adjustments
committee by the International president after the con-
vention began, and that Bednarz acted as a delegate,
without having been elected delegate, seconding some
nominations.
Evans had heard that Bednarz had been appointed to a
committee before the convention but it was his under-
standing on reading the International constitution that
only four committees could be appointed before the be-
ginning of the convention—not including the adjustments
committee to which Bednarz was appointed. The issue is
particularly sensitive to Evans because he ran against
Bednarz in the spring of 1980 for the position of financial
secretary of the Union and had received the highest
number of votes among the losing delegate candidates.
The Department of Labor investigators initially in-
formed Evans that Bednarz was a legal delegate but on
Evans' persistence they found that although Bednarz was
a proper committee member his service as delegate was
improper and was a violation of law because he was not
elected as required by law. The Department of Labor
further found that Bednarz' actions as delegate, however
improper, did not effect the results of the elections for
International union officers, and were thus not covered
by the Labor Management Reporting and Disclosure Act
provisions on internal union elections. Thus, the Depart-
ment of Labor closed its case, not because Evans was
wrong but because the impropriety of which Evans had
complained did not bias the election of the International
officers
Finally, Evans protested the local officer's election of
1980. Evans was a candidate for financial secretary
against Bednarz in that election and he alleged that the
election had been improperly influenced by, among other
things Bednarz' improper attendance at the International
convention, an internal charge against him; a threat to
expel him; the violence and threats to Retzack and other
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
candidates; a business agent's participation in the meet-
ings of the election committee; and Retzack's exclusion
from these meetings. The Department of Labor found
"certain violations" but concluded that the violations did
not effect the election results. LMSA Director Hun-
sucker stated that although there had been violence and
threats of violence to some candidates none dropped out
of the race as a result.
D. Grand Jury Testimony
In December 1979, at a union meeting in Milwaukee,
Evans' ally and fellow union member Russell Retzack
was physically beaten and in early 1980 two cars were
fire bombed while parked adjacent to Retzack's house.
Both Retzack and Evans testified before a grand jury
concerning those incidents. Evans was also asked about
the bombing of an employer's crane. The grand jury in-
dicted Charles Sneed, ex-business representative of the
Union, Shaw's son, and a third individual for bombing
the crane. Evans' testimony was publicized in the press.
In that connection Shaw later stated, "My son went to
jail because some fink ratted on him." Shaw also told
Retzack in January 1983, as testified by Retzack, "He
said it was a shame that we told such wild tales to the
grand jury."
Since late 1980 Evans protested Bednarz' trip to the
International convention in Hawaii and requested that
the Department of Labor conduct a financial audit of
Local 139 and provide him with the figures on cost of
the Bednarz' trip. The audit has been initiated and in
connection with it Evans has had numerous conversa-
tions with representatives of the Department of Labor,
up to the time of the hearing herein.
E. The NLRB Charges
Evans filed three NLRB charges since 1977. The first,
in 1978, alleged discriminatory hiring hall fees and rules.
The charge was withdrawn after Evans was informed by
the Region that the charge had no merit. The second
charge was filed by Evans in late 1982 in which he
claimed that the Union had discriminatorily refused to
refer him. Evans filed that charge after he had failed to
receive a referral from the Union for over 2 years and
had been informed by two individuals that the Union
was deliberately refusing to refer him. Evans' second
charge was dismissed for insufficient evidence
In addition to filing the two charges discussed above,
Evans wrote a letter to the Region in mid-1978 to deter-
mine whether the Union could refuse to grant name re-
quests for nonmembers' names on its hiring hall list,
while granting such requests for members' names. Evans
believed that the practice of granting name requests for
union members only was discriminatory. The Region re-
sponded to Evans' request for information stating that
members and nonmembers must be treated equally.
Evans made 200 copies of the Region's response to pass
Out at union meetings and publicized the response in his
publication, Ethical Engineer.
F. The Union's Retaliation for Evans' Activities
In December 1977 member Ed Guthman filed a
charge against Evans claiming that he had "published the
paper creating dissension among the membership" in vio-
lation of article IX, sections 2(c) and 3(h) and (k) of the
local bylaws. Guthman, who is now a business agent for
the Union, had been chairman of the election committee
dunng the 1977 campaign, and filed the charges against
Evans because of Evans' first issue of the Ethical Engi-
neer in protest of the conduct of the 1977 election. Busi-
ness Representative Lewis Yuker agreed to speak on
behalf of Guthman on his charge before the executive
committee. David Waite, also a business representative
and, according to Guthman, the "overseer" of the elec-
tion committee, was also present at the pretrial hearing
held on Guthman's charge before the executive board.
Retzack defended Evans at that hearing. The executive
committee meeting on Guthman's charge occurred in
March 1978; however, no action was taken to dismiss the
charge until July 1979 when the executive board, on
Don Shaw's motion, unanimously voted to dismiss the
charge.
G. The Executive Board's 1979 Order
In June 1979, without notice to Evans, the Union's ex-
ecutive committee voted to order Evans to cease pub-
lishing inflammatory material about any officers, execu-
tive board members or other members of the Union and
to cease furnishing information about the Union's busi-
ness, its members, or any Wisconsin building tradesmen
to "outside interests." The letter informing Evans of the
executive committee order also states that the executive
board will expel him if he failed to comply with the
Order. The letter was read to all members as part of the
executive board minutes at the general membership meet-
ing held in July 1979.
H. The Smeaton Charge
In January 1982, member William Smeaton filed a
charge against Evans alleging that Evans' communica-
tions with state legislators about unemployment compen-
sation abuse were undercutting the Union's efforts to im-
prove unemployment benefits. Smeaton testified that, in
October 1981, Don Shaw appointed him, then a business
representative, and another member to a committee to
help improve unemployment compensation benefits. The
committee had been working with State Senator Burger
on possible improvements. Burger's support vanished in
December 1981, about the time Smeaton read newspaper
accounts of Evans' report to Burger of union members'
abuse of the hiring hall system while receiving unem-
ployment compensation benefits. On the basis of the
news accounts of Evans' reports, Smeaton decided to file
the charge.
Without notice to Evans, the union executive board
sent the Smeaton charge to trial before the membership.
The trial was conducted, without Evans, by President-
Business Manager Shaw. Evans was found guilty as
charged and was notified that he had been fined $250
and expelled from membership. The finding of guilt and
OPERATING ENGINEERS LOCAL 139 (AGC OF WISCONSIN) 997
fine were publicized in the Union's Local 139 News.
Evans appealed the finding and the penalty was stayed
pending appeal. Shaw and Business Representative Rich-
ard Mahal appeared before the general executive board
of the International union in opposition to Evans' appeal
and presented the entire "ding a-ling file." 2 Evans'
appeal was granted and the penally overturned on Sep-
tember 1, 1982 3
I. The Shaw Charge
Before Evans' appeal had been granted on the Smea-
ton charge, Shaw filed his own charges against Evans on
August 27, 1982, alleging that he was creating dissension
among the members, destroying the interest and harmo-
ny of the local union and willfully slandering officers of
the organization. Shaw testified that he filed the charges
because of statements made in two issues of the Ethical
Engineer. However, Evans testified that one of the issues
was mailed after the charge was filed by Shaw.4
Shortly before Shaw filed his charges against Evans,
Shaw's son and a former Local 139 business agent, as
discussed above, had been indicted for bombing an em-
ployer's crane following a grand jury investigation in
which both Evans and Retzack testified. Curiously, the
pleading date for Evans on Shaw's charges was set for
September 13, 1982, the date set for the criminal trial of
Shaw, Jr. and Charles Sneed on the indictments. Evans'
trial before the membership, on the Shaw charges, was
set for November 2, 1982, the day before Shaw's appeal
hearing on Evans' allegations of unemployment compen-
sation abuse. It is obvious that the timing of these events
is more than mere coincidence
Evans and Retzack as Evans' representative were
present for the November 2, 1982 trial of Evans on the
Shaw charges. Shaw told the members that Evans had
filed complaints with DILHR, the Department of Labor,
the NLRB, FBI, and the Federal grand jury and that the
Union had spent thousands of dollars defending those ac-
tions Shaw produced the "ding-a-ling file" consisting of
six green notebooks which Shaw claimed, among other
things, contained all the documents filed concerning the
actions Shaw told the members that the International
union had made it clear that he could not fine or expel
Evans for his activities. Another way had to be found.
Shaw suggested a "token reimbursement" by Evans to
the Union of $5000, with $3000 being set aside if Evans
attended the next 12 district meetings Despite Evans'
and Retzack's defense, the membership found Evans
guilty and imposed the penalty requested by Shaw. At
the end of the meeting, Shaw told the members that his
son was in jail because someone had "ratted on him."
The finding and penalty against Evans were published in
the Local 139 News.
2 The "ding-a-ling file" consisted of six green notebooks assembled by
the Union concerning Evans which included his publications, information
concerning his contacts with governmental agencies, charges, etc
3 Smeaton's charge was remanded to the local union for consideration
as to retrial but has not been acted on to date
4 Shaw testified in an arrogant but guarded, hesitating, and cautious
manner On the other hand, Evans was open, candid, responsive, and un-
hesitating while testifying In short, Evans was a credible witness and
Shaw was not
Evans appealed and the penalty against him was
stayed and the conviction and penalty were eventually
reversed by the International union. In connection with
the appeal, Evans traveled to Washington, D.C. at his
own expense.
J. The Respondent Reports Evans to DILHR
On June 6, 1983, 2 days before the hearing in the in-
stant case was scheduled to begin, Evans received, for
the first time in 3 years, a referral from the Respondent.
Evans told the dispatcher that he would be unable to
begin the job as requested on Wednesday, June 8, be-
cause of the scheduled NLRB hearing, but that he would
be available on Thursday as he anticipated the hearing
would be concluded by then. The dispatcher told Evans
that he would give him the job for Thursday, if no one
else could be found to start on Wednesday. The dis-
patcher also told Evans that 45 people had already
turned down the job. The following evening at a union
meeting, the dispatcher told Evans that he had filled the
job.
On the day after the original conversation between
Evans and the dispatcher, the dispatcher (Morris) sent a
letter to the state agency (DILHR) alleging that Evans
had refused the job offer. As a result of the letter, Evans'
unemployment compensation benefits were immediately
cut off and have not been reinstated as of the close of
the hearing in this case.
President Don Shaw testified that he has never known
an incident where referral information was reported to
DILHR in the absence of a subpoena or court order. In
that connection it has been Respondent's consistent posi-
tion that its referral records are confidential documents
which are not available for inspection by any member or
any governmental agency, absent a court order requiring
production thereof. I find Morris' letter to the DILHR
to be a deviation from the Union's normal procedure and
was for the sole purpose of harassing Bill Evans. I also
find that the Respondent's referral system constitutes an
exclusive hiring hall.
It should be noted that Evans' actions including the
publication of the Ethical Engineer, considering the sub-
stantial assistance and cooperation from Retzack and the
testimony both gave before the grand jury and Justice
Department officials constitute concerted activity and, as
such, protected by Section 7 of the Act. In that connec-
tion I agree with the General Counsel that even if Evans
had taken the action alone, it would have been protected
under the language of Scofield v. NLRB, 394 U.S. 423
(1969), and Carpenters Local 22 (Graziano Construction),
195 NLRB 1 (1972). I find that the Union's conduct, by
its August 1982 charge against Evans and the June 6,
1982 unemployment compensation letter, constitutes re-
straint and coercion of Evans' protected activities, not
privileged by the 8(b)(1)(A) proviso, and therefore is a
violation of that section of the Act. Evans had a right to
protest Shaw's election activities inasmuch as he believed
them to violate the state unemployment compensation
law. Moreover, his publication of the Ethical Engineer
newsletter falls within his Section 7 right to question the
wisdom of his representatives or to take steps to align his
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union with his own position. East Texas Motor Freight,
262 NLRB 868 (1982).
K. The Respondent's Position
Respondent attempts to portray Evans as a malcontent
and somewhat of a crackpot It collected and preserved
copies of documents concerning Evans' various activi-
ties, and referred to it as the "ding-a-ling" file. It tnes to
portray Evans as harassing the Union and union oficials
instead of the other way around. It claims that just be-
cause most of the charges brought against Evans were
overturned on appeal and inasmuch as Evans has not
paid any fines or otherwise been punished that Respond-
ent should somehow be absolved of its illegal conduct.
Respondent also makes the incredible argument that
Evans made no efforts on his own to contact union
members directly for the information Evans requested in
order to check on the operation of the referral system
and therefore does not deserve the requested informa-
tion. It is patently ridiculous to suggest that Evans could
contact everyone who was on the referral list when he
does not know and cannot know who is on the list. To
suggest that Evans contact 5000 members throughout the
State to find out who is on the list is equally absurd.
Even if he were able to contact all the members, they
would not know where they stand (order) in relation to
others because the Union denies that information to all.
Thus, it would be impossible for Evans to find out who
is before him and who was after him on the list.
Respondent also contends that Evans has a mailing list
containing the names and addresses of 1500 union mem-
bers. So what! Again, those members are as ignorant as
Evans as to who is above or below on the list Respond-
ent also makes the specious argument that Evans should
have sent out questionnaires, as he has done in other
matters with respect to the operations of the referral
system. Again, in the circumstances, such an effort
would be futile. What would he find out?
In response to Evans' request, the Union sent a letter
to all individuals on the referral hall list. The letter ad-
vised the individuals of Evans' request and asked them to
advise the Local whether they would authorize release
of his name, address, and telephone number to Evans. It
made no mention of Respondent's willingness to reveal
the individual's standing on the list with respect to other
members because Respondent is not willing to do that.
Again, the information is worthless. The Union's action
was a sham.
There is no legitimate reason for the Union to with-
hold from the membership, information concerning the
referral list. I see no possibility of harm to the Union or
to the employees. On the contrary, to withhold such in-
formation permits the union officers to discriminate and
play favorites and deprives a member or nonmember of
his right to know whether the referral list is being oper-
ated properly and fairly. The use of the "secret" list to
reward supporters of the officers of the Union to the det-
riment of others is not just conjecture The evidence re-
veals that very conduct. There is much evidence in this
case to support the allegations of discrimination against
Evans and the corrupt handling of the referral system by
President-Business Manager Shaw and his appointed sub-
ordinates.
With respect to Evans being referred to a job on June
6, the Respondent claims that Evans declined the offer
and the job service was so informed by Morris, a dis-
patcher. Respondent contends, "There was no legal
action filed by the Union," and further that there was no
showing that accommodations could not have been made
by the employer or by the parties at the hearing with re-
spect to this work assignment and to coordinate this
work assignment. That contention does not square with
the credible testimony that Evans was prepared to do
just that and does not answer why, after years of being
on the list, Evans, on the eve of the NLRB hearing, is
referred to a job. Nor does it explain why on its own the
Union revealed to the state unemployment compensation
agency, information concerning such referral when such
action was contrary to the policies and past practice of
the Union. Shaw insisted that it was only revealed when
subpoenaed (or on court order).
I find Respondent's actions to be part of the pattern of
harassment by Respondent against Evans.
With respect to Evans' publication, Ethical Engineer,
Respondent contends that the members voted to disci-
pline a member for publishing false and defamatory ma-
terial and that, inasmuch as the discipline was reversed
on appeal, no violation of the Act occurred Respondent
says that Evans accused Shaw of being a thief, stealing
union money, and getting payoffs; that none of these ac-
cusations of illegal conduct has ever been substantiated
by Evans and "They are obviously liable per se." "Liable
per se!" I find no evidence in the record that any liable
action has been instituted against Evans for his "liable
per se" The only evidence in the record is that the Re-
spondent's officers attempted to discipline Evans for pub-
lishing the so-called false and defamatory matenal and
that they were reversed on appeal. Respondent makes
other arguments that do not even merit discussion
L. Conclusions
Each of Evans' activities discussed herein is protected
under Section 7 of the Act, including his opposition to
Shaw's electioneering tactics and his complaints to the
United States Department of Labor. Evans' publication
of the Ethical Engineer newsletter is within his Section 7
rights to question his representatives and to persuade the
Union to adopt his position.
As previously discussed, Respondent operates a refer-
ral system service or "hiring hall" out of its four district
offices. Employers under union contract are required to
hire their employees through the hiring hall and may
hire "off the street" only if the Union is unable to pro-
vide qualified employees within 48 hours. I find that ar-
rangement to be an "exclusive" hiring hall. The referral
provisions in the Union contract state:
ARTICLE XI
REFERRAL
Section 11.1. When the Contractor needs addi-
tional Journeymen or Apprentices for work within
OPERATING ENGINEERS LOCAL 139 (AGC OF WISCONSIN) 999
the jurisdiction of Operating Engineers, Local No.
139, he shall give the Union first opportunity to dis-
patch such help, informing the Union of the loca-
tion, nature and extent of the job, and shall allow
forty-eight (48) hours for referral of prospective
employees.
Section 11.2. A Contractor's request for an indi-
vidual operator by name will be honored, provided
the operator requested is presently on the out-of-
work list five (5) days, or is employed regularly on
a season-to-season basis by the requesting Contrac-
tor.
Section 11.3. In the event the Contractor is noti-
fied that such help is not available, or in the event
the employees called for do not appear for work at
the time designated by the Contractor, the Contrac-
tor may hire from any other available source.
Section 11.4. Any employee who is hired in vio-
lation of this Article shall be discharged by the
Contractor when the violation has been brought to
his attention in writing by the Business Representa-
tive.
Section 11.5. The Contractor shall have the right
to employ or not to employ any applicant referred
by the Union.
Section 11.6. EMERGENCY EMPLOYMENT:
In the event an employee fails to report for work,
becomes sick during the course of the day, or for
some other reason disrupts the Contractor's work
routine by not working, the Contractor shall imme-
diately contact the Union Office to obtain a quali-
fied replacement. While the Contractor is waiting
for the replacement to arrive, he shall have the
right to place a qualified man on the equipment in
order to keep the other tradesmen working.
Evans and Shaw testified that the Union operates an ex-
clusive hall, and the employers are obligated to hire
through the hall Shaw also testified that in Local 139
contracts which do require employers to hire through
the hall, the Union may grieve an "off the street" hiring,
obtain backpay for the person at the top of the referral
list, and perhaps even have the person discharged who is
hired off the street. Shaw further testified that, although
there are contracts through the exclusive referral provi-
sions, it is "not in all contracts." However, he could
recall no contracts without exclusive referral provisions
and none were produced by the Union As previously
stated I find the Union operated an exclusive hiring hall
within the meaning of Teamsters Local 357 v. NLRB, 365
U.S. 667 (1961), and Laborers Local 889 (Anthony Fer-
rante & Sons, Inc.), 251 NLRB 1579 (1980).5
Respondent's duty of fair representation requires sup-
plying Evans with job referral information It is inherent
in a union's duty of fair representation to deal fairly with
5 The exclusivity of the hiring hall herein is not affected by the fact
that in sec 11 2 of the contract quoted above, the contractor's request for
an individual operator whom he names will be honored because It is con-
ditioned on the operator requested must, at the time, be on the out-of-
work hit for 5 days or is employed regularly on a season-to-season basis
by the requesting contractor See Plasterers Local 299 (Wyoming Contrac-
tors), 257 NLRB 1386 (1981)
an employee's request for information as to his relative
position on the out-of-work register for purposes of job
referral through an exclusive hiring hall. Evans' request
of Respondent for the 50 names, addresses, and tele-
phone numbers of individuals above and below his name
on the four out-of-work registers is a reasonable request
that clearly involves a matter affecting his employment.
Evans has been completely dependent on Respondent
for the protection of his referral rights. Respondent's re-
fusal to give Evans the requested information deprives
Evans of the only means whereby he could fully ascer-
tain whether or not his referral rights were being pro-
tected. In spite of Respondent's protestations, Evans had
no other means at his disposal. Respondent's refusal to
supply the job referral information under the guise that it
had a duty to preserve the anonymity or privacy of its
members is totally lacking in merit. The members are
part of the Union in which all have a common cause. It
is not as though the information were being released to
the public or to some other interest that might be inimi-
cal to the members. Here, we have a fraternity of indi-
viduals, many of whom are in the same boat. The inter-
est of a member to make sure that his rights are being
protected far outweigh any right of privacy consider-
ations which may exist between members. I therefore
reject the maintenance of privacy argument and con-
clude that Respondent unjustifiably refused to furnish
Evans job referral information in violation of Section
8(b)(1)(A) of the Act. Operating Engineers Local 324
(AGC of Michigan), 226 NLRB 587 (1976).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent as set forth above have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States, and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(b)(1)(A) of the
Act, I shall recommend that it be ordered to cease and
desist therefrom and to take affirmative action designed
to effectuate the policies of the Act. I shall recommend
that Respondent be ordered to cease interfering with the
Charging Party's Section 7 rights by harassing him and
bringing charges against him which impair his rights
guaranteed by Federal labor laws. I shall also recom-
mend that Respondent be ordered to refrain from arbi-
trarily denying referral information to registrants. I shall
also recommend that Respondent be ordered to post and
mail appropriate notices to all its members because of the
wide geographical spread of Respondent's jurisdiction
and the extensive publicity already mailed to members
concerning the Charging Party and this case. I shall also
recommend that Respondent be ordered to notify Wis-
consin DILHR that the Union's June 1983 letter con-
cerning Charging Party Evans was an error, that Evans
did not refuse a job offer; and to reimburse Evans for
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any unemployment compensation benefits lost as a result
of that letter.
I shall also recommend that Respondent be ordered to
produce for Charging Party Evans the names, addresses,
and telephone numbers (in order) of the 50 employees
above and below him on each of the 4 district referral
lists, as of December 1982, so that Evans can determine
whether the Union has been discnminating against him
regarding referrals Finally, I shall recommend that Re-
spondent be ordered to make Evans whole for his costs
incurred in appealing the Shaw charge.
CONCLUSIONS OF LAW
1. A number of member-employers of AGC, Public
Works, Road Builders and Distribution are engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. The Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. By refusing to supply William J. Evans the list of
names, addresses, and telephone numbers of 50 employ-
ees above and 50 employees below his name in registers
of 4 districts of , Respondent's junsdiction, Respondent
breached its duty of fair representation and interfered
with, restrained, and coerced Evans in the exercise of his
rights under Section 7 of the Act, thereby violating Sec-
tiOn 8(b)(1)(A) of the Act.
4. By filing the internal union charges against Charg-
ing Party Evans on August 27, 1982, Respondent violat-
ed Section 8(b)(1)(A) of the Act.
5. By fining Charging Party Evans to reimburse Re-
spondent $5000 for legal costs incurred in defending
itself against the activities engaged in by Charging Party,
Respondent violated Section 8(b)(1)(A) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) of the Act. .
[Recommended Order omitted from publication.]