Bateson-Cheves Construction Co.

National Labor Relations Board - Board Decisions

Dec 22, 1964

150 N.L.R.B. 573 (N.L.R.B. 1964)

BATESON-CHEVES CONSTRUCTION CO. 573
2. Respondent Union , on and after October 18, 1963 , was not "currently certified"
as the bargaining representative of the employees here involved within the meaning
of Section 8 (b) (7) of the Act.
3. In picketing for such object for more than 30 days after October 18, 1963,
without a petition under Section 9(c) having been filed, Respondent engaged in an
unfair labor practice within the meaning of Section 8(b) (7) (C) of the Act.
4. The unfair labor practice here found affects commerce within the meaning of
Section 2 ( 6) and (7) of the Act.
[Recommended Order omitted from publication.] -
Bateson-Cheves Construction Co. and John A. Mascarenas
International Union of Operating Engineers Local 428, AFL-
CIO; Construction , Building Material and Miscellaneous
Drivers Union, Local No. 83 affiliated with International
Brotherhood of Teamsters , Chauffeurs, Warehousemen- &
Helpers of America [Bateson-Cheves Construction Co. and
Grand Oil & Transport Co., Inc. ] and John A. Mascarenas.
Cases Nos. 28-CA-1018 and 28-CB-283. December 22, 196 ,
DECISION AND ORDER
On May 13, 1964, Trial Examiner William E. Spencer issued his
Decision in the- above case, finding that the Respondents had not
engaged in the unfair labor practices alleged in the complaint and,
recommending that the complaint be dismissed, as set forth in his
attached Decision. Thereafter, the General Counsel filed exceptions
to the Trial Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in
connection with this case to a three-member panel [Chairman Mc-
Culloch and Members Fanning and Jenkins].
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
Decision, the exceptions and brief, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner to the extent consistent herewith.
The complaint alleged in substance that the Respondents condi-
tioned the employment of certain employees on their membership in
Engineers or Teamsters. We adopt the Trial Examiner's recom-
mendation that the allegations of the complaint be dismissed, be-
cause we agree with him that the General Counsel has not proved
that the Respondents failed to transfer the employees because of
lack of "Union" membership or clearance. Thus, as the Trial Ex-
aminer found, Respondent Engineers' contract with Bateson-Cheves
contained a clause requiring Bateson-Cheves to engage only "union"
150 NLRB No. 33.
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
subcontractors for work at the project. Bateson-Cheves had violated
this provision when it engaged Grand Oil & Transport Co., Inc., to
perform certain excavation work. When Respondent Engineers
complained and the threat to picket the project was made to Dunn,
president of Grand Oil, Dunn suggested to Bateson-Cheves that the
lease arrangement be substituted for the subcontract. When Bate-
son-Cheves adopted this suggestion, Respondent Engineers indicated
that it would not require Bateson-Cheves to obtain operators for
equipment already on the project from the hiring hall but that it
would clear the employees then operating the equipment.' In view
of the above, we cannot find that an object of the threat to picket
was to force Bateson-Cheves to replace Grand Oil with a "union"
subcontractor,2 or to eliminate Grand Oil's nonunion employees from
the project.
The record also reveals that Cheves discussed with Featherston,
the representative of Respondent Engineers, the pieces of Grand Oil
equipment and the operators thereof which were to be transferred
to Bateson-Cheves. When Cheves failed to mention the "self-load-
ing scraper" operated by Mascarenas, Featherston asked him about
his intentions concerning it, and Cheves replied that "the rig was
down and that we do not know when it will be back into operation
... I understand he [Mascarenas the operator of the rig] is a good
hand and would you agree to refer him if we need him?" Feather-
ston replied that "We'll cross that bridge when we get to it."
Grand Oil's other employees were cleared without regard to their
union membership. There is nothing in the record to indicate that
Bateson-Cheves thereafter had work for Mascarenas or that Masca-
renas ever attempted to obtain clearance from either Respondent
Engineers or Respondent Teamsters. In these circumstances, we,
conclude that the failure of Mascarenas to be transferred to Bateson-
Cheves' payroll was due to factors unconnected with his union mem-
bership or lack thereof .-3 Accordingly, in agreement with the Trial
Examiner's recommendation, we shall order that the complaint herein
be dismissed.
[The Board dismissed the complaint.]
This included equipment ]eased from Grand Oil and equipment leased from one Hassel.
2 We need not decide whether picketing with such an object necessarily constitutes an
attempt to cause application of discriminatory hiring policies within the meaning of
Section 8 ( b) (2) of the Act.
3 In reaching this conclusion , we rely also on the fact that the solicitation of Grand
Oil's employees to join either the Teamsters or the Engineers , depending on the nature
of the work they performed , occurred after Bateson-Cheves had decided which employees it
would transfer to its payroll , and on the Trial Examiner 's finding that the denial of
membership to Mascarenas did not cause Bateson-Cheves to refrain from hiring him.
BATESON-CHEVES CONSTRUCTION CO.
TRIAL EXAMINER'S DECISION
575
STATEMENT OF THE CASE
The General Counsel's complaint based on charges duly filed by John A. Masca-
renas, an individual,' issued under date of December 18, 1963, and alleged in sub-
stance that Respondents Engineers and Teamsters violated Section 8(b)(1)(A) and
(2) of the Act, and Respondent Bateson-Cheves violated Section 8(a)(1) and (3)
of the Act, by conditioning the employment of certain named employees on their
becoming members of, or being cleared by, Respondents-Engineers or Teamsters,
according'to the jurisdiction of each. In their duly filed answers the Respondents
denied the commission of the alleged unfair labor practices.
All parties participated in the hearing upon the aforesaid complaint conducted by
Trial Examiner William E. Spencer, at Phoenix, Arizona, on February 17 and 18,
1964, and, after the evidence had been taken, stated their positions orally or in briefs
filed with me.
Upon the entire record in the case and from my observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT EMPLOYER
Bateson-Cheves Construction Company, herein called Bateson-Cheves, a Texas
corporation with an office and place of business at Mesa, Arizona, is a contractor in
the building and construction industry in several States, including Arizona. It is
and has been a prime contractor of the Bureau of Indian Affairs for the construction
of certain facilities at Tes Nos Pas, Arizona. During the past 12-month period-it
has sold goods and materials and furnished services in excess of $50,000 directly to
firms in States other than Texas. During the same period it purchased, transferred,
and had delivered to its, construction site at Tes Nos Pas goods, materials, and serv-
ices in excess of $50,000, of which in excess of $50,000 in value were transported to
the construction site directly from States other than Arizona.
IT. THE LABOR ORGANIZATIONS INVOLVED
International Union of Operating Engineers, Local 428, AFL-CIO, herein called
Engineers, and Construction, Building Material and Miscellaneous Drivers Union,
Local No. 83, affiliated with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, herein called Teamsters, are, each of them,
labor organizations within the meaning of the Act.
M. THE UNFAIR LABOR PRACTICES
A. The situation
Respondent Bateson-Cheves, a prime contractor of the Bureau of Indian Affairs
for the construction of certain facilities at Tes Nos Pas, Arizona, began work on the
project about July 1963. Its president, G. K. Cheves, testified that it was a party to
the Arizona Master Labor Agreement, to which Respondent Teamsters was also a
party. He also testified that the job in question was covered by an agreement with
Respondent Engineers.2 The agreements in question provided for exclusive hiring
halls, and Engineers agreement, at least, had a subcontractor clause requiring sub-
stantially that all subcontractors working on the Bateson-Cheves project be bound
by the terms of Engineers agreement, including its hiring hall provisions.
About July, Bateson-Cheves subcontracted certain excavation and other work on
the Tes Nos Pas project to Grand Oil and Transport Co., Inc., herein called Grand
'An original charge and a first amended charge were filed against Respondent Bateson-
Cheves, on October 23 and December 16, 1963, respectively' original charges and first
and second amended charges were filed against Respondent Engineers and Respondent
Teamsters, respectively, on October 23, November 15, and December 16, 1963.
2 Apparently, both Teamsters and Engineers agreements were industrywide and there
is some question whether Respondent Bateson-Cheves formally executed either. -I have
no doubt, however, that this Respondent verbally agreed to be bound by the terms of
these agreements, respectively, and the General Counsel conceded as much at the hearing.
775-692-65-vol. 150-38
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Oil, and Grand Oil began work under its subcontract about August. Cheves admitted
that he did not inform Grand Oil of Respondent Bateson-Cheves labor agreements
at the time the subcontract was made. Admittedly Grand Oil was not a party to any
labor agreement.
In August and September there were several conversations, some by telephone,
some in person, between Cheves and Engineers Representatives Charles A. Slack and
C. W. Featherston, and also conversations between these representatives and Ralph
Dunn, president of Grand Oil. These conversations reflected Engineers' concern over
Cheves' violation of the subcontracting clause of his agreement with Engineers, and
insistence that Grand Oil' be subjected to the terms of the agreement. The matter
was held in abeyance for some time while Engineers representatives attempted to
persuade Grand Oil to accept its agreement. Engineers made certain offers to permit
present Grand Oil employees to remain on the job provided new hires, or a percent--
age of them, were cleared through the hiring hall, offers which Dunn admitted were
fair. He, however, ultimately refused to come under Engineers agreement.3 Engi-
neers then made it known to both Cheves and Dunn that it would picket the project
unless the terms of its agreement with Cheves were extended to cover subcontractor
Grand Oil. Rather than have the job picketed, the existing agreement between
Cheves and Dunn was terminated and a lease agreement was entered into whereby
Grand Oil's equipment was leased to Bateson-Cheves, and its employees on the proj-
ect, including Dunn himself who was assigned to a supervisory post, were, with one
exception, transferred to the Bateson-Cheves payroll.
The several Grand Oil employees transferring to the Bateson-Cheves payroll were
interviewed at the jobsite on October 15 by Featherston for Engineers, and Jack Giger
and Walter Vadin for Teamsters. All transferees not already union members, signed
applications for membership and paid the required initiation fees and dues to Engi-
neers or Teamsters; as the case may be. The only Grand Oil employee denied trans-
fer to Bateson-Cheves was the Charging Party in this case, John A. Mascarenas.
Those transferring were: Darwin Bell and Steven Johnson, operators under the
jurisdiction of Engineers, and Gary Harlan and Guy Stocks, truckdrivers under the
jurisdiction of Teamsters.
Two other employees, Dinny Hassel and Bob Lowery, came onto the Bateson-
Cheves job when Cheves leased some equipment from one, Hassel, with the under-
standing .that the equipment would come "manned." Cheves' advice to Engineers
that he intended to bring these two operators on the job without clearance through
Engineers hiring hall engendered controversy, a controversy which apparently was
settled when the two former Hassel employees became affiliated with Engineers or
were granted clearance on the job by Engineers, as the case may be. As far as I am
able to tell, the disposition of the former- Hassel employees was worked out by
Cheves and Engineers in conjunction with the agreed-upon transfer of former Grand
Oil employees to the Bateson-Cheves payroll.
B. Issues; concluding findings
The General Counsel's position appears to be that Respondent Engineers by threat-
ening to picket the Tes Nos Pas project caused Respondent Bateson-Cheves to break
off its contract with Grand Oil, and that Respondent Engineers and Respondent
Teamsters conditioned the transfer of Grand Oil and Hassel employees to Bateson-
Cheves on their becoming members of Engineers or Teamsters, as the case may be.
With respect to Mascarenas, the allegation is that Engineers caused Bateson-Cheves
to deny him employment because of his lack of membership in and clearance by
Engineers.
I have no doubt that Bateson-Cheves terminated its contract with Grand Oil and
entered into the lease agreement with the latter because of Engineers' threat to picket
the project. Teamsters made no such threat and was a party to no such threat.
Therefore it is clear from the outset that Teamsters is not involved in this phase of
the case. Though no violation by Engineers of 8(b)(4) of the Act is alleged, and
no question is raised on the validity of Engineers agreement with Bateson-Cheves,
8 As a matter of fact he was at no time open to persuasion on executing a union con-
tract because, as he testified, his religious convictions barred him from making such an
agreement.
BATESON-CHEVES CONSTRUCTION CO. 577
if the threat of picketing involved an unlawful object the General Counsel's theory
of a violation by Engineers and Bateson-Cheves of 8(b)(1)(A) and (2) and 8(a)
(3), respectively, could be sustained. I am not convinced, however, that Engineers'
statements to Cheves and Dunn amounted to threats of picketing for an unlawful
object. Engineers exerted every reasonable means of persuading Grand Oil to an
agreement and, failing, could lawfullly resort to an organizational picket directed
against Grand Oil's work on the project. I do not know that Engineers spelled out
precisely that picketing would be of that character, as perhaps it should have, but
in any event Bateson-Cheves knew that the probable effect of such a picket, though
directed solely against Grand Oil, would be to shut down all work on the project,
and this would suffice in itself to cause Cheves to do what he did do. Entirely aside
from the subcontracting clause in its agreement, I do not see anything wrong in
Engineers' attempt to solicit and urge Bateson-Cheves' assistance in persuading Grand
Oil to accept the terms of Engineers' agreement. Nor do I think it was an infraction
of the Act for Engineers to inform Bateson-Cheves directly and unequivocally that
the failure of Grand Oil to accept the agreement would result in a picket line being
established against Grand Oil's work on the project. Construction, Building Material
and Miscellaneous Drivers, Local Union No. 83, etc. (Marshall & Haas), 133 NLRB
1144, 1145, 1146. It would be somewhat derelict in its obligations to Bateson-Cheves
if it did not do so. For these reasons I am unable to accept the General Counsel's
theory that the violations charged were caused by Engineers' unalleged violation of
Section 8(b) (4), though I appreciate- that on this point the line may be very thin
between a violation and no violation, so thin as to be at times almost though, perhaps
not quite meaningless, and this is so because the operations of the prime contractor
and his subcontractor are so interdependent 'and intermingled on most construction
projects that we resort at times to artificial concepts in our efforts to distinguish
between primary and secondary action. Denver Building and Construction Trades
Council (William G. Churches), 90 NLRB 378, at 391-399. Another factor contrib-
uting to, but not controlling, my conclusion of no violation at this point, is Bateson-
Cheves' decision to bring the two Hassel employees on the project without first clear-
ing with Engineers, a direct violation of the hiring hall provisions of its agreement.
It is not at all clear to me that this action did not enter into Engineers' picketing
threat, and picketing Bateson-Cheves because of its violation of the hiring hall clause
in the agreement , admittedly valid , would not be unlawful.4
It having been found that Bateson-Cheves' termination of its subcontract with
Grand Oil, and simultaneous entering into a lease agreement with the latter, and
agreement to transfer Grand Oil employees to the Bateson-Cheves payroll, are actions
which do not of themselves sustain any of. the unfair labor practices alleged in the
complaint, it follows that both Engineers and Teamsters, under the hiring hall pro-
visions of their respective agreements with Bateson-Cheves, could lawfully require
that employees added to the Bateson-Cheves payroll be obtained through the said
hiring hall procedures, whether these employees were added through transfer or other-
wise. Engineers and Teamsters could not, however, require union affiliation as a
condition precedent for bringing the employees involved onto the. Bateson-Cheves
payroll, and if the General Counsel has a case it rests, in my opinion, on such a
requirement and not on an unalleged violation of Section 8(b) (4) of the Act.
Both Cheves and Dunn testified that Engineers representatives told them that
Grand Oil employees would have to "go union" or "be union," but Cheves admitted
that they might have stated, as they testified they did, that these employees would
have to be subjected to the hiring hall provisions of the labor contract, or "cleared"
with the union involved, and Dunn, who admitted on cross-examination that an
Engineer representative advised him that it would be preferable if two of his employ-
ees, who were on the job temporarily, did not clear through the union, like Cheves,
admitted that Engineers representatives may have had reference to clearance through
& It was Featherston 's credited testimony that in his first telephone conversation with
Cheves, the latter told him that he was renting the Hassel equipment and had agreed to
bring it on the project already "manned ." Featherston replied that to bring in the equip-
ment manned would be a violation of the hiring hall agreement , and that if he persisted
in this action he, Featherston "would have no alternative except to give him twenty-four
hours' notice and put a picket on the job."
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the hiring hall rather than union affiliation .5 Cheves testified that to his way of
thinking the two things meant the same since he had never known an employee to
be dispatched through the hiring halls who was not a union member . This may well
have been his experience and I do not question it, but in testing for a violation of
the Act "union affiliation " and "clearance through a union hiring hall" do not mean
the same thing. Slack and Featherston denied that they told either Cheves or Dunn
that the employees in question would have to become union members ; admitted that
they made reference to making the job a "union" job; and testified that their refer-
ence at all times was to clearance through hiring hall procedures . The testimony of
Cheves and Dunn, qualified as it was on the point , does not carry credence over that
of Slack and Featherston . In so finding, I have not overlooked the fact that the two
Hassel employees , and the four Dunn employees who were kept on , apparently all
made applications for membership in Engineers or Teamsters , as the case may be.
The fact that they made such applications and that their applications were accepted
does not compel the conclusion that these applications were required as a condition
of continued employment . With respect to the two Hassel employees , there is no
evidence whatever other than what may be inferred from Cheves' testimony, that
their acceptance of union affiliation was not voluntary . The same is true with
respect to all former Dunn employees who on transferring to the Bateson -Cheves
payroll made application for membership in Engineers. If one or more of these
employees had refused union membership and then been denied clearance for the
job, or if we had evidence that they were coerced into accepting union affiliation, the
issue would be clearcut , but that is not our situation . The only evidence from which
coercion could be inferred is that which established that union representatives were
on the jobsite , interviewed them there , solicited their membership applications, and
received them , and that they were dispatched from their jobs for the purposes of the
said interviews . This is not sufficient , in my opinion , to establish that their member-
ship applications were obtained under duress . They doubtless knew that in order
to retain their jobs they would have to be cleared through the unions' hiring , halls,
and this being a fact and a lawful requirement , may very well have voluntarily taken
the next step by making membership applications.
Coming now to the one Dunn employee who was refused transfer to the Bateson-
Cheves payroll , Mascarenas , it is clear that he was willing to affiliate with Engineers,
that Engineers representative was fully aware of that fact , and that he was denied
clearance by Engineers because with the addition of the two Hassel operators to the
Bateson-Cheves payroll , the quota of operators agreed upon by Engineers and Bate-
son-Cheves was already filled. Mascarenas was fully aware of hiring hall procedures,
but never at any time registered on the out -of-work list maintained by Engineers and
Teamsters in their respective hiring halls. It cannot be said that had he done so he
would not in due course have been referred to the Bateson -Cheves payroll. The fact
5 Excerpts from Cheves' testimony on cross -examination:
Q. I will ask you to think carefully now, and tell us whether the words union appli-
cations or applications were used or whether Mr. Featherston said that the union would
refer some of Dunn's employees or Issue referrals on Dunn's employees on that job?
A. I don't remember the exact phrasing or how it was put.
On redirect:
TRIAL EXAMINER : But as to this [Featherston ' s] actual words, you can't say whether
be said union application or clearance for work?
The WITNESS : That's right.
On re-cross :
Q. Now reference has been made to whether the reference was to union membership
to referrals or clearance , I believe Is there a distinction in your mind at the present
time as to the meaning of these three?
A. No.
Excerpts from Dunn 's testimony on cross-examination:
Q. . . . concerning the requirement that in order for the men to continue on the
job, that they either join the union or that they be cleared by the union or that they
be referred by the union , did you have any conversation with any of the union repre-
sentatives concerning that?
A. Well, yes, sir, that was the gist of our conversations prior to this lease
arrangement . . . .
Q. Was the discussion that the men would have to join the union?
A. No, I don't think it was. I don't know that he said they had to join. He said
they would have to be cleared by the union.
COAMO KNITTING MILLS, INC. 579
is that while the complaint alleges that Engineers prevented his transfer to Bateson-
Cheves because of his lack of affiliation in Engineers, the testimony reveals that
Mascarenas, at Dunn's urging, chiefly attempted to get clearance through Teamsters.
He was at the time of the attempted transfer a member of another Teamsters local
on a withdrawal card; testified that he discussed transferring to the contracting local
with Giger, the Teamsters representative, that Giger told him the transfer fees, etc.,
would amount to about $25; and that, because he did not have this amount on him
in cash, Giger in effect refused his transfer. Giger admitted discussing the transfer
fees with him; denied having refused him a transfer; and testified, credibly I believe,
that because Mascarenas was employed by Dunn as an operator, he came under the
jurisdiction of Engineers, and he, Giger, lacked the authority to give him job clear-
ance as an engineer. There is no question that Mascarenas was willing and eager
to affiliate with the contracting Teamsters local or with Engineers. I am unable to
find that the evidence preponderates in support of a finding that he was denied trans-
fer to the Bateson-Cheves payroll, by either Teamsters or Engineers, because of his
union affiliation or lack of it.
Finally, there is the testimony of Guy Stocks, a truckdriver, who was one of the
Dunn employees transferred to the Bateson-Cheves payroll, that on being interviewed
by Giger, the latter told him he would have to make application in Teamsters in
order to be transferred. Stocks testified that he wanted to affiliate with Teamsters,
and inasmuch as it is clear from his own testimony that he would have applied for
membership in Teamsters on an entirely voluntary basis, it is puzzling to say the
least, that Giger would have felt called upon to use pressure in signing him up.
Furthermore, this is the sole evidence that Dunn or Hassel employees were told, at
any time, by a representative of either Teamsters or Engineers, that their continued
employment was conditioned on their applying for membership. Under such cir-
cumstances I am unable to give Stock's testimony credence over Giger's denial. It
may well be that he, like Cheves, considered clearance through a union hiring hall
and union affiliation one and the same thing.
For the reasons aforestated and upon consideration of the entire evidence, I shall
recommend dismissal of the complaint in its entirety.
CONCLUSIONS OF LAW
1. Respondent Bateson-Cheves is, and has been at all times material to the issues
in this proceeding, an Employer within the meaning of Section 2(2) of the Act,
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
2. Respondent Engineers and Respondent Teamsters are, each of them, labor
organizations within the meaning of Section 2(5) of the Act.
3. The Respondents have not engaged in any of the unfair labor practices alleged
herein.
RECOMMENDED ORDER
It is recommended that the complaint be dismissed in its entirety.
Coamo Knitting Mills, Inc. and Federacion Puertorriquena de
Sindicatos Democraticos
International Ladies' Garment Workers' Union , AFL-CIO and
Federacion Puertorriquena de Sindicatos Democraticos. Cases
Nos. 04-CA-1806 and 24-CB-476. December 23, 1964
DECISION AND ORDER
On May 11, 1964, Trial Examiner Sidney S. Asher, Jr., issued his
Decision in the above-entitled proceeding, finding that the Respond-
ents had engaged in and were engaging in certain unfair labor prac-
tices, and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
150 NLRB No. 35.