Hoisting and Portable Engineers, Local 302

National Labor Relations Board - Board Decisions

Nov 8, 1963

144 N.L.R.B. 1449 (N.L.R.B. 1963)

HOISTING AND PORTABLE ENGINEERS, LOCAL 302 1449'
mination, we are assigning the disputed work to employees represented
by Respondents, but not to that labor organization or its members.
DETERMINATION OF DISPUTE
Upon the basis of the foregoing findings and upon the entire record
in this case, the Board makes the following determination of dispute,,
pursuant to Section 10(k) of the Act: Employees engaged as long-
shoremen, currently represented by International Longshoremen's and
Warehousemen's Union, and International Longshoremen's and
Warehousemen's Union, Local No. 19, are entitled to perform the work
of operating cranes utilized by Albin Stevedore Company, and other
members of PMA, when used in connection with cargo-handling op-
erations, where such work is assigned to longshoremen by the 1959-60'
mechanization agreement between PMA and Respondents, and its sub-
sequent supplements and codifications, as it has been interpreted by the,
contracting parties or their arbitrators.
MEMBER LEEDOM took no part in the consideration of the above
Decision and Determination of Dispute.
Hoisting and Portable Engineers, Local 302 [West Coast Steel
Works] and LaVere R. Crume. Case No. 19-CB-880. Novem-
ber 8, 1963
DECISION AND ORDER
On January 30, 1963, Trial Examiner James R. Hemingway issued
his Intermediate Report in the above-entitled proceeding, finding that
Respondent had not engaged in the unfair labor practices alleged in
the complaint, and recommending that the complaint be dismissed in_
its entirety, as set forth in the attached Intermediate Report. There-
after, the General Counsel filed exceptions to the Intermediate Report
together with a supporting brief.'
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 Inter-
mediate Report and the entire record in the case, including the excep-
tions and brief, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner except as modified herein.
The Trial Examiner found, and we agree, that Respondent did not
violate Section 8(b) (2) and 8(b) (1) (A) by causing West Coast Steel
'Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-member panel
['Ohairman McCulloch and Members Leedom and Fanning].
144 NLRB No. 139.
1450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Works to discharge Crume for failing to obtain referral for the job
through Respondent's hiring hall. The reason which the Trial
Examiner relied upon for his finding was that Respondent was merely
attempting to require compliance by Crume with its nondiscriminatory
referral procedures and that Crume's discharge by West Coast did not
constitute discrimination to encourage union membership in violation
of Section 8 (a) (3). In coming to this conclusion, the Trial Examiner
did not consider whether the evidence established that West Coast
and Respondent were in fact parties to an arrangement obligating
West Coast to hire employees through Respondent's hiring hall. The
theory of the complaint, and of the General Counsel's exceptions to
the Trial Examiner's findings, is that there was no such arrangement or
agreement between West Coast and Respondent and, therefore, by
causing West Coast to discharge Crume for bypassing the hiring hall
procedures, Respondent encouraged Crume's adherence to an obliga-
tion of union membership, in violation of Section 8 (a) (3) .2 Since we
believe that the facts establish the existence of an arrangement between
West Coast and Respondent requiring the former to use the latter's
hiring hall, we find no violation of Section 8(b) (2) and (1) (A) by
Respondent in causing Crume's discharge.
Respondent had a collective-bargaining agreement with Associated
General Contractors, Alaska Chapter, of which Chris Berg, Inc., is a
member. The agreement included both it nondiscriminatory hiring-
hall provision and a provision obligating the signatory employers to
include all the conditions outlined in the agreement as "part of the sum
and substance of any contracts entered into with their Subcontractors."
Berg, a general contractor, was engaged during 1962 in construction
work at several locations in Alaska, including Cape Newenham, where
it was installing an aerial tramway for the Corps of Engineers. Some-
time in the spring of 1962 Berg subcontracted the erection of steel
towers for the tramway to West Coast, a construction firm which was
not a member of Alaska Chapter, AGC, and was not a signatory to its
contract. It is clear that Berg did not inform West Coast that, as its
subcontractor, it was bound under the AGC contract to use Respond-
ent's hiring hail.3
Crume, the Charging Party, was a crane operator from Portland,
Oregon, and held membership in Respondent's sister local, 701. He
had worked for West Coast in prior years and had, in fact, worked
for it in Alaska during the summer of 1961. Respondent, having ter-
ritorial jurisdiction in Alaska, had cleared Crume for this 1961
assignment.
2 The General 'Counsel does not contend that the referral system, which granted priorities
to applicants based on the length of their previous employment in Alaska , was in itself
discriminatory.
8 The record does not disclose whether the subcontract arrangement between Berg and
West Coast was written or oral, nor is there any testimony regarding its provisions.
HOISTING AND PORTABLE ENGINEERS, LOCAL 302 1451
Before starting on the Cape Newenham subcontract, Johnson,
West Coast's superintendent, asked Crume if he would be interested
in again working for West Coast in Alaska during the summer of
1962. Crume said he would, and Johnson then called Langberg, Re-
spondent's recording secretary, about a clearance for Crume. Lang-
berg told Johnson that it would be impossible to clear Crlnne because
many people in the area who obtained job referrals through Respond-
ent were still unemployed. Johnson then suggested to Crume that
he attempt to obtain his own clearance.4 Crume did not call Re-
spondent, but consulted a former official of his own local, 701, who
advised him to go to Alaska and wait for Respondent to reach him
there. Crume then informed Johnson that that matter had been
taken care of.5 West Coast then hired Crume, who left for Alaska
on May 22, 1962.
Sometime early in June, Respondent learned that Crume was work-
ing for West Coast as a crane operator and that he had not been
cleared through its hiring hall. Respondent promptly complained
to Berg that this was a violation of the subcontracting provisions of
Berg's contract with Respondent. Respondent also advised Berg that
if the matter were not straightened out, Berg might have difficulty
keeping its own operating engineers on the job. Learning of Respond-
ent's insistence about the Crume matter, Johnson called Langberg late
in June. Johnson told Langberg that he would lay Crume off, since
he was not being used as a crane operator at the time.' Langberg told
Johnson that this would settle the problem and that there might still
be an opportunity to clear Crume later in the summer if all Respond-
ent's prior registrants were then working. Johnson discharged Crume
on June 28. Some 2 weeks later Johnson hired another crane oper-
ator and an oiler through Respondent's hiring hall. Crume has not
been rehired for the Cape Newenham job.
4 Johnson testified at the hearing that he had no intention of hiring Crume for the
Alaska job unless clearance was obtained
5 A composite of the testimony of Johnson and Crume on this point indicates that while
Crume did not state that he had received clearance, he did inform Johnson that he had
looked into the matter , as Johnson suggested , and had been advised that it would be all
right for him to work in Alaska that summer
6 At the hearing Respondent offered as a defense that Crume was discharged for lack
of work. This defense was based on certain testimony of Johnson that lie had discharged
Crume, because the crane work, for which he had been hired, had run out and on Johnson's
further testimony that he would have discharged Crume for this reason even if there had
been no pressure from the Union The Trial Examiner made no specific findings in this
regard
we reject this defense . Johnson's foregoing testimony as implausible for a number of
reasons . Crume was not doing crane work at the time of his discharge , nor had he for
the previous 3 or 4 weeks . He was working as an assistant millwright during the latter
period, and the continued need for someone to do this work after Crume's discharge was
demonstrated by the fact that Johnson himself then had to fill in Moreover , Johnson told
Crume at the time of his discharge that the reason therefor was Respondent 's pressure.
Crume's discharge slip, signed by Johnson , reflects that Crume was terminated because
the "union would not clear him for Alaska employment."
1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We believe that, independently of the hiring-hall requirements of
the AGC contract, there existed an informal arrangement between
Respondent and West Coast that West Coast would obtain clearance
or referral of its Alaska job applicants from Respondent. Thus, Re-
spondent had cleared Crume to work in Alaska in 1961, and West Coast
considered it necessary to obtain clearance for him before it would
hire him for the 1962 season. Being unsuccessful in this effort, it
suggested to Crume that he might be able to get Respondent's clearance
through his own efforts. Although Crume was then hired for the
Cape Newenham job without a clearance, it occurred only because
Johnson relied on Crume's statement that the matter had been taken
care of. As soon as it learned that Crume had not in fact received
Respondent's clearance, West Coast did not contest Respondent's claim
that Crume's employment had been improperly obtained. Then, when
Crume was discharged, Respondent offered to clear him later in the
season if he were then entitled to referral in proper order. Finally, as
indicating West Coast's understanding of its arrangement with Re-
spondent, West Coast hired other individuals at Cape Newenham who
had been referred by Respondent.
It is not a violation of Section 8(b) (2) and 8(b) (1) (A) of the Act
for a union to cause an employer to discharge an employee who was
not hired through the union's hiring hall, where the employer and
union have a nondiscriminatory agreement obligating use of the hiring
hall, and the hall is operated in a nondiscriminatory manner.' Such
an agreement or arrangement need not be written, but may be estab-
lished by evidence of an oral understanding e or of a course of conduct 9
in which both parties mutually assume the concomitant obligations
imposed by the necessity to use a hiring hall or referral system. 1 Te
believe that the facts set out above establish that West Coast and
Respondent both understood that West Coast would hire only those
applicants for Alaska jobs who were cleared by Respondent, and
that all their actions with respect to Crume are consistent with the
existence of such an arrangement. Since the hiring-hall procedure
imposed by this arrangement is not itself discriminatory, nor oper-
ated in a discriminatory manner, we conclude that its application to
Crume did not violate the Act as alleged in the complaint.
[The Board dismissed the complaint.]
'Local 557, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America v N .L R.B (Los Angeles -Seattle Motor Empress ), 365 U.S. 667.
8Local Union No. 106, United Brotherhood of Carpenters and Joiners of America, AFL
2IO (Otis Elevator Company ), 132 NLRB 1444, 1448; Laborers and Hod Carriers Union,
Local 652 , AFL-CIO ( Hood-River-Neill ), 135 NLRB 43, 44.
9 Cf. Local 215, International Brotherhood of Electrical Workers, AFL-CIO (Eastern
New York State Chapter of the National Electrical Contractors Association ), 136 NLRB
1618, 1619.
HOISTING AND PORTABLE ENGINEERS, LOCAL 302 1453
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
A charge was filed on July 11, 1962, by LaVere R. Crume, an individual, against
Hoisting and Portable Engineers, Local 302, herein called the Respondent. Upon
such charge, the General Counsel for the National Labor Relations Board (the
latter herein called the Board) caused a complaint to issue on October 19, 1962,
.alleging that the Respondent had committed and was committing unfair labor prac-
tices within the meaning of Section 8(b)(1)(A) and (2) of the National Labor
Relations Act, as amended, 29 U.S.C. Sec. 151, et seq., herein called the Act.
The issue raised by the pleadings and contentions of the parties is whether or not
the Respondent, having an exclusive hiring-hall contract with a general contractor,
which contract contained a so-called subcontractor clause, caused a subcontractor,
who was not bound by the contract to use the hiring hall, to discriminate against its
employee, LaVere Crume, who was not a member of, and had not been cleared by
Respondent, by terminating his employment as a result of Respondent's threat of
,possible work stoppage made to the general contractor.
Pursuant to notice, a hearing was held in Portland, Oregon, on November 26, 1962,
.and in Anchorage, Alaska, on November 28, 1962, before Trial Examiner James R.
Hemingway. The General Counsel and the Respondent were represented by counsel.
Full opportunity was afforded to the parties to examine and cross-examine witnesses
and to introduce evidence bearing on the issue. At the close of the General Coun-
sel's case, the latter moved to amend the complaint by adding an additional alleged
reason for Respondent's alleged act of causing discharge of the subcontractor's em-
ployee. The motion was granted over objection of the Respondent. At ,the close of
the hearing, Respondent moved to dismiss the complaint on the ground that the
evidence failed to established an attempt to cause discrimination. Ruling was re-
served thereon and is now granted for the reasons hereinafter stated. The parties
were given time in which to file briefs, but only the General Counsel filed a brief.
From my observation of the witnesses and upon the entire record in the case, I
make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
West Coast Steel Works, herein called West Coast, is now and has been at all times
material herein, an Oregon corporation with offices located in Portland, Oregon. It
is engaged in the business of subcontracting steel erection for various general con-
tractors throughout the United States, including the State of Alaska.
During the year preceding the issuance of the complaint, West Coast has been
engaged in the performance of a subcontract for Chris Berg, Inc, herein called Berg,
the primary contractor in the construction of an aerial tramway for the United States
Corps of Engineers (Contract No. DA-95-507-ENG-1580) at Cape Newenham Air
Force Station, Alaska. The subcontract performed by West Coast for Berg was for
a sum in excess of $300,000. In the performance of this contract, West Coast received
construction materials from outside the State of Alaska valued in excess of $50,000
In the performance of the subcontract, West Coast has provided services valued in
excess of $100,000 which have a substantial impact on national defense.
No issue is raised regarding the Board's jurisdiction. The Board's legal and
discretional jurisdiction is established on the basis of the foregoing findings.'
It. THE LABOR ORGANIZATION INVOLVED
The Respondent is, and, at all times material herein , has been a labor organization
within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Causing discrimination
1. Background; Respondent's AGC contract
Throughout 1962 the Respondent had and maintained a contract with Alaska
Chapter of Associated General Contractors, herein called AGC (of which Berg, the
general contractor, was a member), which contract contained, among other pro-
visions, ,an exclusive hiring-hall provision, a union-shop provision, and a so-called sub-
'Ready Mimed Concrete i Materials, Inc., 122 NLRB 318; Siemens Mailing Service,
122 NLRB 81.
1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contractor clause, requiring general contractors who were bound by the contract to
make the contract conditions a part of the sum and substance of any contracts entered
into by them with their subcontractors.
The hiring-hall provisions of this contract provide for registration of applicants
for work in three separate groups. The first is composed of operating engineers "who
have been employed by an Employer or Employers, party or parties to this Agreement
(as hereinafter defined), who have worked for any such Employer or Employers for
an aggreate time of at least 400 hours during the period of two (2) years immediately
preceding registration date." The second group consists of similar employees who
have so worked less than 400 hours, and the third group is composed of all other
applicants.
The term "Employer" is defined to include not only those who are parties to the
contract (through membership in AGC) but also to any employer "who adopts or
works under" the contract and contributes to Respondent's health and welfare and
pension plan, and to any employer who employs operating engineers under the terms
of the contract and "is a contributing Employer within the meaning of the health and
welfare and pension plans."
During the 1961 season, West Coast had done work in Alaska and had at that time
employed LaVere Crume there. Crume, a member of a sister local of Respondent,
had, that year, been cleared for work by Respondent and had worked for 2 full
months and parts of 2 other months during 1961. Although this period of time
could have exceeded 400 hours, the record does not show that Crume had, in fact,
worked for 400 hours or more in Alaska in 1961.
The General Counsel did not seek to establish that West Coast, in 1962, was an
"Employer" within the foregoing definition of Respondent's AGC contract. The
evidence shows only that West Coast had no contract with Respondent in 1962 during
the period of time material hereto. Employers, as defined in the contract, are, by
the terms of the contract, given the privilege of requesting Respondent for a particular
man who had been previously employed by that employer and who had, within the
3 years preceding, been laid off or terminated. Because there was no proof that
West Coast was "an Employer" within the meaning of the said contract no claim
is made that West Coast exercised this privilege.
2. Crume's employment and termination
Victor Johnson, superintendent for West Coast, several months in advance, noti-
fied Crume, a crane operator, long a member of Local 701, a sister local of Respond-
ent, of the prospect of a job at Cape Newenham, Alaska, when the season should open.
Shortly before work was to be started, Johnson again spoke with Crume, who
indicated a desire for the job. Johnson then sought to clear Crume through Local 701
but was told to call the Respondent in Seattle, as it had jurisdiction in Alaska. Johnson
telephoned Respondent's Seattle office and spoke with Morris Langberg, recording
secretary of the Respondent, and asked the latter if it would be possible to get a clear-
ance for Crume to go to Alaska on West Coast's subcontract with Berg. Johnson
told Langberg that Crume had worked in Alaska previously, but the evidence does
not reveal whether or not Johnson informed Langberg specifically of Crume's 1961
employment in Alaska or of the number of hours worked by Crume for West Coast
in Alaska in 1961. Langberg told Johnson that it would be impossible to clear Crume
because the season was just starting in the north and, in Langberg's words, "we had
many people unemployed throughout the winter" who needed work. There is no
evidence that Langberg said anything about registration on the Respondent's out-of-
work list, and there is no evidence that Crume registered or attempted to register with
Respondent for work in Alaska.
Following his conversation with Langberg, Johnson informed Crume of the result
of his call and told Crume that he could not take him to Alaska without approval
of the Respondent as he did not wish to have "a problem" after getting Crume up
there. He suggested that Crume should try, himself, to get cleared by the Respond-
ent. Crume sought assistance through his own local but was unsuccessful in getting
a clearance for work in Alaska.
The testimony of Johnson and Crume is at variance as to what Crume later told
Johnson about the result of his own efforts to get clearance. However, Crume, who
had worked as an operator for West Coast intermittently for 7 or 8 years, was hired
by Johnson, and, on May 22, 1962, was sent to Cape Newenham, Alaska, at West
Coast's expense, without a clearance by Respondent.
When he arrived at Cape Newenham on May 24, Crume operated the crane to
unload a barge of steel towers. This work took 4 or 5 days. Then he took the crane
from the barge and used it to load the towers and certain supplies of Berg for trans-
HOISTING AND PORTABLE ENGINEERS, LOCAL 302 1455
portation to the construction site. This took about 10 days to 2 weeks . During this
time, Johnson left Alaska to attend the funeral of his father and was away for about
2 weeks. Assistant Superintendent Charles McAdam was in charge for West Coast
while Johnson was away. When work for the crane ran out, Crume was assigned
to, and did , assist Boyd Hansen , an ironworker and millwright , with his work for
West Coast for about 2 weeks until Johnson returned.
Meanwhile, in the first part of June 1962 Millard Alewine, a representative of the
Respondent stationed at the Respondent 's Anchorage office, received word that a
crane operator from out of State who had not been dispatched by the Respondent
was working for a subcontractor of Berg's at Cape Newenham. Alewine thereupon
telephoned Berg's office and spoke with James Schultz , Berg's office manager, and
asked the name of the crane operator on the job at Cape Newenham . If Schultz
then supplied Crume's name, as he testified , Alewine apparently did not keep it in
mind. The testimony of Schultz and Alewine varied somewhat as to precisely what
Alewine said . Both witnesses impressed me as honest witnesses , and such differences
as existed in their testimony , I conclude , resulted from vagaries of memory . In sub-
stance, Alewine told Schultz that the hiring procedure of their contract was not being
complied with by Berg. Schultz suggested that Alewine take the matter up with
West Coast and supplied the name and address of West Coast 's president . Alewine
said the matter was Berg's responsibility and that if he (Alewine ) had to go to
Cape Newenham to straighten "this" out he would be very unhappy and that, if the
matter were not taken care of, Berg might have difficulty keeping its operating engi-
neers on the job. Because Berg had only one operating engineer at Cape Newenham
at that time, Schultz interpreted Alewine's statement about keeping operating engineers
on the job to embrace Berg 's operating engineers on all its Alaska jobs. Alewine
testified that he did not know how many operating engineers were working for Berg
at Cape Newenham at the time, and this is possible, since the Respondent's AGC
contract gave the Employer the privilege of moving men from one job to another.
During June 1962 Berg had at least two other jobs in progress on which it employed
about 12 operating engineers. Schultz told Alewine that he should take the matter up
with William Toelkes , Berg's progress manager, who was in charge of all its construc-
tion work in Alaska.
Later, about mid-June, Alewine telephoned Berg's office again, when Toelkes was
present, and spoke with the latter . Alewine said substantially the same thing to
Toelkes as he had said to Schultz-that Berg's subcontractor had an operator who
had not been cleared through the Respondent , that this was not in accord with their
agreement, and that if the situation were not corrected , Berg might have difficulty
keeping its operating engineers on the job (or on their jobs ). Toelkes told Alewme
that he was not aware of the portion of the contract that Berg was violating. Alewine
read to Toelkes the subcontractor's clause. Toelkes requested Alewine to make his
complaint to Berg in writing. Alewine did not do so.
When Alewine concluded his conversation with Toelkes, he telephoned William
Hibberd, manager of the Alaska Chapter of AGC, and told Hibberd that a man was
operating a crane for a subcontractor of Berg and that this man had not been dis-
patched as provided by Respondent's contract with the Alaska Chapter of AGC.
Hibberd asked questions about the man and Alewine told Hibberd that be did not
know who he was. Hibberd then asked, "He isn 't one of your members, then?"
Alewine replied that he was not. Alewine requested Hibberd to speak to Berg's
project manager . Alewine did not say anything to Hibberd about a work stoppage.
Hibberd told Alewin that he would take the matter up with Toelkes, and he did so
on several occasions , explaining that the subcontractor clause was binding on Berg.
Toelkes told Hibberd the last time that the matter was being taken care of.
Soon after the conversation with Alewine, Toelkes was at his Seattle office. While
there, he arranged a meeting with West Coast's President Lundberg and Superintend-
ent Johnson . At this meeting, he told Lundberg and Johnson of his conversation
with Alewine and said that if they did not get Crume cleared by the Respondent,
Berg would have trouble with its operating engineers.
Within a week thereafter , in the latter part of June, Toelkes and Johnson flew back
to Alaska together . On the trip , they discussed the progress of the Cape Newenham
job. Before going on to Cape Newenham , they both stopped in Anchorage and, while
there, Johnson , from Berg's office , at the instance of Toelkes , telephoned the Re-
spondent's Anchorage office. Langberg , with whom Johnson had spoken in his tele-
phone call to Respondent 's office in Seattle, was at the Anchorage office that day and
he was put on the telephone . The ensuing conversation was testified to by Johnson and
by Langberg . Although I am not satisfied that either gave a complete or accurate
account of the conversation , they were the only parties to it and they supplied the only
1456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence of it. From this testimony, I find that Johnson told Langberg that "we seem
to have a problem" and said that Toelkes had asked him to telephone the Respond-
ent's hall. Langberg asked Johnson what his problem was. Johnson replied that
he had a man on the job that he had brought in from Portland who did not seem to
have proper clearance. Johnson's testimony was that Langberg told him that West
Coast had a man that went "up there," without a clearance and that he replied that he
thought he had a clearance. Langberg testified that, after Johnson had said he had a
man without proper clearance, he (Langberg) asked, "Well, what is your solution?"
Johnson told Langberg that, if the work situation at Cape Newenham was what he
thought it was, there was no work for the crane and that the crane operator would
have to be shipped back. Langberg said, "Well, if that's the case we don't have a
problem." Johnson told Langberg it would probably be 2 or 3 weeks before the crane-
would be needed for the erection of steel. Langberg suggested that Johnson check
back in 2 or 3 weeks "to see if our people are working, and if they are working and all
out on employment at this time, possibly we can clear Mr. Crume to the job correctly."
On the plane between Anchorage and Cape Newenham, Johnson told Toelke he was.
going to remove Crume because he could not get a clearance for him. Johnson testi-
fied that he told Toelkes there was no work anyway, so no one would be hurt.
When he arrived at the construction site that evening, June 28, 1962, Johnson told
Crume that the latter was going to "have to go to town." Crume asked why, and
Johnson told him, according to Crume, that the Respondent "is putting pressure on us,
and we cannot keep you here." Johnson told Crume that he had spoken with a
representative of the Respondent in Anchorage (not naming him) and that this,
representative had said to Johnson (according to Crume's testimony) that he
(Langberg) had told Johnson in Seattle that he would not clear Crume and that he
still would not do so. Crume asked Johnson who was going to pay his way home.
Johnson told Crume, "The union laid you off. Let them pay your way out." Crume
arranged, however, to borrow from Johnson enough to pay his fare home. Crume
asked Toelkes if the Respondent could cause his termination that way. Toelkes told
Crume that, to avoid a work stoppage, it would be best for him to go to Portland.
On the following morning, June 29, before Crume left, he told Johnson that he
wanted a layoff slip stating why Johnson was letting him go. Johnson had no termina-
tion slip available, so he telephoned Berg's office in Anchorage and requested Schultz
to make one out for Crume and to state, as the reason, that the Respondent would not
clear Crume.
When Cnume returned to Portland he went to West Coast's office but was told
that his check would be held up because of the matter of transportation back, but a
week later, Crume picked up his paycheck and the termination slip. West Coast
reimbursed Johnson for the $188 which Crume had borrowed to pay his fare home.
3. Arguments and conclusions
Normally in cases where unions are charged with violation of Section 8 (b) (1) (A)
and (2) in hiring-hall cases, consideration is given first to the legality of the contract
and, if that is legal, to the legality of the hiring-hall practices of the union Neither
illegality of the Respondent's contract with AGC nor of its operation of the hiring
hall as to contracting parties is alleged in the complaint, or contended by the Gen-
eral Counsel, to enter into the question to be here decided. The General Counsel
apparently concedes the legality of both. What the General Counsel apparently does
claim is that the Respondent had no right to compel Berg (a contracting employer who
had agreed to require its subcontractors by contract to observe the conditions of the
AGC contract, including the hiring-hall provision) to put pressure on West Coast to
comply with those conditions, where an effect of such compliance required West
Coast to discharge an employee already employed.
The theory of the General Counsel is not altogether clear. His brief is devoted
to answering three questions: (1) Was West Coast under a contractual obligation to
obtain its operating engineers through the Respondent's hiring facilities? (2) Did the
Respondent's officials threaten Chris Berg, Inc. with a work stoppage unless the
charging party was removed from the job at Cape Newenham? (3) Did West Coast
remove charging party from its job at Cape Newenham because of the Respondent's
threats of a work stoppage involving Chris Berg's employees9 The first question he
answers negatively, the second and third he answers affirmatively. He does not
undertake to explain why such conduct would be illegal even with those answers,
except to say that the subcontractor clause of the AGC agreement is no defense,
citing Northern California Chapter, The Associated General Contractors of America,
etc, 119 NLRB 1026. Since the General Counsel confined himself to this one
citation, I assume that he is not attempting to equate the case at hand to cases decided
under Section 8(b) (4) of the Act. If he does, it will suffice to say that the defense
HOISTING AND PORTABLE ENGINEERS, LOCAL 302 1457
of a subcontractor clause in a secondary boycott case is rejected because certain
conduct of unions respecting secondary parties is expressly forbidden by the Act .2
Section 8 (b) (1) (A) and (2) of the Act does not, however, expressly prohibit a union
from putting pressure on a genial contractor who is party to a contract containing
the subcontract clause with an object of inducing the general contractor to do as he
agreed to do-require subcontractors to agree to give effect to the contract conditions.
If such conduct violates Section 8(b) (1) (A) and (2) of the Act, then, it must be
because of the interpretation of the Act and its application to specific facts outside the
Act.
From the General Counsel's citation of the Board's decision in the Northern
California Chapter case, supra, and his assertion that the subcontractor clause is no
defense in this case, I assume that the General Counsel is construing the Board's
decision in that case as holding that, in all cases, it is illegal for a union to force
the general contractor to require his subcontractor to agree to follow the master
contract if, in doing so, the union causes the discharge of an employee of the sub-
contractor, without regard to whether or not the discrimination caused was or was
not one which necessarily encouraged union membership or activity. The facts in the
cited case were substantially these: Local 3 of the Operating Engineers had a contract
with the Northern California Chapter of AGC which contained a hiring-hall clause,
a sub-contractor clause, and a union-shop clause similar to those in this case. The
employees of the subcontractor in that case were members of a certified union which
was not affiliated with Local 3 or, indeed, with any of the building trades unions. By
causing a work stoppage to force the general contractor to compel the subcontractor
to agree to comply with the union-shop provision of its contract (thus attempting to
force the subcontractor's employees to join a union which did not represent them),
Local 3 violated Section 8(b)(I)(A) and (2) of the Act, the Board held.
If the objective of the Respondent here was to enforce the union-shop provision of
its contract with AGC and if the Respondent had threatened a work stoppage to gain
that end, the facts would be sufficiently similar to those in the case above cited to
require the same conclusion here. In the instant case, however, the Respondent was
not attempting to enforce its union-shop clause. The mere fact that the union-shop
provision was maintained in the same contract with the subcontractor clause, was
not, in itself, a violation of the Act, according to the cited decision. The Board held
merely that a strike to compel employees of an employer with whom Local 3 had no
contract to join Local 3 was a violation of the Act.
Here the Respondent was not attempting to cause Crume to become a member.
The evidence does not show that the Respondent ever attempted to enforce its union-
shop clause. In this case, the Respondent was merely attempting to require West
Coast to follow the procedures established under the hiring-hall provisions of its
contract. If it was successful, the result would not have been to require Crume to
become a member of the Respondent; it would merely have compelled Crume to
go through the procedure for registering and being dispatched in his order of registra-
tion. Crume sought to circumvent such procedure by accepting employment with
West Coast without going through the Respondent's hiring hall. Although West Coast
was not under contract to Respondent when it hired Crume, it apparently entertained
some expectation of operating in accordance with the Respondent's contract with
AGC later when it would start work at Cape Newenham, for it sought clearance
for Crume from the Respondent before it hired him. So far as the evidence shows,
the Respondent refused to clear Crume at that time not because he was not a member
of Respondent but because it had men on its out-of-work list who would have preced-
ence. The evidence does not even show that Respondent had only its own members
on its out-of-work list. So far as the record discloses, the Respondent's objection
to the employment of Crume was based only on its claim that the contract required
the hiring-hall procedure to be followed,3 and a contract which gives preference for
local area men is not illegal.4
I have previously concluded that a determination of violation of Section
8(b) (1) (A) and (2) in a case of attempted enforcement of a subcontractor clause is
not controlled by decisions in cases of violation of Section 8(b)(4), nevertheless it
may be well to point out that even in Section 8(b) (4) cases, the Act does not proscribe
all pressure brought to bear only on the primary employer. In International Union
2 Local Union No 1065, United Brotherhood of Caipenters, etc , 13'8 NLRB 901.
ILaboiers and Had Carriers Union , Local 652, AFL-CIO (Hood- River-Neill ), 135 NLRB
43; Millwrights and Machinery Erectors Local Union, No 21,71 ( Otis Elevator Company),
135 NLRB 79; Local 825, International Union of Operating Engineers , AFL-CIO (H John
Homan Company ), 137 NLRB 1043
4Bricklayeis , Masons and Plasterers ' International Union of America, Local No 2, AFL-
CIO (Wilputte Coke Oven Division, Allied Chemical Corporation ), 135 NLRB 323
1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Operating Engineers, Local 545, (Syracuse Supply Company) 139 NLRB 778, the
Board said:
the Union engaged in a walkout at the situs of the dispute with the object
of preserving this work for employees in the bargaining unit rather than because
Syracuse Supply employees were or were not represented by this or any other
union. In bringing direct economic pressure to bear on their own Employer
for that purpose, the Respondent was engaging in lawful primary activity.
It is disputed by the parties whether or not Alewine threatened Berg with a
work stoppage. In view of my conclusion that the Respondent did not cause a dis-
crimination to encourage union membership, it is unnecessary to decide whether or
not Alewine was threatening strike action by the Respondent or was merely prognosti-
cating the probable attitude of Berg's operating engineers. Actually, the Respondent
did not cause a work stoppage but resorted solely to the procedure called for in its
AGC contract to enforce its subcontract clause.
The General Counsel, in his brief, argues that the Respondent's contention that
Crume was discharged because there was no work for him does not square with
the evidence and that if Crume was discharged as a result of the Respondent's threats
to cause a work stoppage rather than because there was no work for him, it would
be immaterial that the threat was made to the prime contractor rather than to the
subcontractor, citing Local Union No. 49, International Union of Operating Engi-
neers, AFL-CIO (Associated General Contractors of Minnesota, Inc.) 129 NLRB
399. I concur that, if the Respondent, by threats against Berg, should cause Berg's
subcontractor, West Coast, to discriminate against Crume in violation of Section
8(a)(3) of the Act, it would be immaterial whether the pressure was exerted medi-
ately or immediately on West Coast. But this does not do away with the necessity
of proving that the discrimination caused by Respondent was a discrimination within
the meaning of Section 8(a) (3) of the Act. In the case cited by the General Counsel,
the Board found that Local 49 was basing its efforts to discriminate on union mem-
bership and that local was seeking preference for its own members. In the case at
hand, there was some testimony that suggested that the Respondent was seeking jobs
for its own members rather than merely for registrants on its out-of-work list regard-
less of membership. Schultz, Berg's office manager, for example, testified that when
Business Representative Alewine telephoned him early in June, Alewine said "that
West Coast Steel had a crane operator at Cape Newenham that was not a member of
this local." This testimony, however, purported to be a paraphrase of what Alewine
had said rather than to be a direct quotation. Schultz' memory of exact words was not
so strong that words used in paraphrasing should be taken to be the precise words
spoken, and Schultz was not asked if Alewine had specifically used the word "mem-
ber." Alewine was indirectly quoted in Toelke's testimony as telling Toelkes "that
West Coast Steel had an operating engineer [the court reporter capitalized Operating
Engineer without special reason] employed at Cape Newenham who was not cleared
through the local union and that this was in violation of our agreement . . . a clause
in the agreement which stated that the subcontractors were to abide by the master
labor agreement when employing crafts ... and that he was going to be very unhappy
if he had to go out to Newenham and straighten out the situation of ... West Coast
having an operator that was not cleared in to the local union...." It will be noted
that in one place Toelkes indirectly quoted Alewine as saying "cleared through" and
in another place "cleared in to." On cross-examination Toelkes accepted counsel's
language that Alewine had said "there was an engineer working on the project who
had not been cleared or dispatched from the hall." Hibberd, the AGC manager,
quoted Alewine as saying to him in his first conversation about Berg's noncompliance
with the subcontract clause that a subcontractor of Berg had a man operating a
crane and that he did not know the man's name. "I said, 'He isn't one of your
members, then?' He said 'No, he ain't.' I says, 'Is he a local man from around
that general area, Cape Newenham?' And he said, 'I don't know. He is not one of
our members.' "
Even if all such testimony were accepted as literally true, and I am unconvinced
that Alewine himself used the word "member," I would consider it insufficient to
prove that the Respondent was attempting to cause discrimination because of member-
ship or nonmembership in the Respondent. Such evidence of favoritism for members
is not even as strong as was the evidence in the Millwrights case 5 previously cited.
Through the Respondent's hiring-hall clause and its subcontractor clause and its
efforts to give effect to it, the Respondent did not coerce Crume or any employee in
the exercise of the rights guaranteed in Section 7 of the Act. If there was any coercion
at all it was in attempting to require him to take his turn in line for a job-an objective
6 Millwrights and Machinery Erectors Local Union No. 2471, etc., supra.
PENINSULA GENERAL TIRE COMPANY, INC. 1459
not prohibited by the Act. Had the Respondent sought to apply its union-shop clause
to Crume, a different situation might exist, but it did not do so.
Because I have found that the Respondent did not cause or attempt to cause an
employer to discriminate against an employee in violation of Section 8(a)(3) of
the Act-that is, to cause discrimination to encourage membership in a labor organiza-
tion-I find that the General Counsel has not proved a violation of the Act under
Section 8(b) (2) of the Act. It appears to me that the General Counsel was regarding
the alleged violation of Section 8(b) (1) (A) only as one deriving from a violation
of Section 8(b) (2), in which case the alleged violation of Section 8(b) (1) (A) would
fail with the failure to prove a violation of Section 8(b)(2).
However, even if he did not include the allegation of violation of Section
8(b) (1) (A) of the Act in the complaint as a derivative violation, I should neverthe-
less find no independent violation of that subsection. The General Counsel, it is true,
amended the complaint to allege not only that the Respondent had caused Crume's
discharge because Crume was not a member of Respondent but also because he "had
not been cleared for employment in Alaska by Respondent." I do not understand
that this amendment was made to permit proof of an independent violation of
Section 8(b) (1) (A). But the fact that the discharge was caused by the Respondent's
refusal "to clear" Crume, does not necessarily prove that the Respondent restrained
or coerced Crume in the exercise of the rights guaranteed in Section 7 of the Act
any more than it proves a violation of Section 8(b)(2) of the Act.6 I find that the
evidence here was insufficient to prove that it did.
CONCLUSIONS OF LAW
1. West Coast is engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. West Coast and Berg are employers within the meaning of Section 2(2) of
the Act.
3. The Respondent is a labor organization within the meaning of Section 2(5)
of the Act.
4. The Respondent has not caused West Coast to discriminate against Crume in
violation of Section 8(a)(3) of the Act and therefore has not engaged in action in
violation of Section 8(b)(2) of the Act.
5. The Respondent has not restrained or coerced Crume in the exercise of the
rights guaranteed in Section 7 of the Act within the meaning of Section 8 (b) (1) (A)
of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings and conclusions of law and upon the
entire record in the case, I recommend that the complaint be dismissed in its entirety.
e Millwrights and Machinery Erectors, eto., supra.
Peninsula General Tire Company , Inc.,' Petitioner and Garage
and Service Station Employees Union , Local No. 665, Inter-
national Brotherhood of Teamsters, Chauffeurs , Warehouse-
men and Helpers of America ,2 Union . Case No. 20-RM-536.
November 8, 1963
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Hearing Officer Wesley J.
Fastiff. The Hearing Officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
1 Hereinafter referred to as Peninsula or the Employer.
2 Hereinafter referred to as the Union.
144 NLRB No. 135.
727-083-64-vol. 144-93