Int'l Union of Operating Engineers, Etc.

National Labor Relations Board - Board Decisions

Nov 15, 1965

155 N.L.R.B. 850 (N.L.R.B. 1965)

850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL, upon request, bargain with Retail Store Employees Local 631,
Retail Clerks International Association, AFL-CIO, as the exclusive representa-
tive of our employees in the unit described below, with respect to rates of pay,
wages, hours of work, or other terms and conditions of employment, and, if an
understanding is reached, embody such understanding in a signed agreement.
The unit is:
All regular full-time and regular part-time employees at our Wenatchee,
Washington, store, excluding lunch counter employees, office clericals,
pharmacists, professional employees, supervisors, the store manager, and
and guards.
WE WILL NOT threaten our employees with economic reprisals if they select
a union, or in any like or related manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor orga-
nizations, to join or assist the above-named or any other labor organization, to
bargain collectively through representatives of their own choosing, to engage in
concerted activities for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any or all such activities, except to the extent
that such right may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Section 8(a) (3) of
the National Labor Relations Act.
WENATCHEE THRIFTY DRUGS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, 327 Logan
Building, 500 Union Street, Seattle, Washington, Telephone No. 682-4553.
International Union of Operating Engineers , Local No. 98, AFL-
CIO (Consolidated Gas and Service Co .) and Albert A. Bavosi.
Case No.1-CB-924. Novemnber 15,1965
DECISION AND ORDER
On August 26, 1965, Trial Examiner Horace A. Ruckel issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had not engaged in unfair labor practices as alleged in the com-
plaint and recommending that the complaint be dismissed, as set forth
in the attached Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner 's Decision , and a sup-
porting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
155 NLRB No. 81.
INT'L UNION OF OPERATING ENGINEERS, ETC. 851
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in this case, and hereby adopts the Trial Examiner's findings, conclu-
sions, and recommendations.
[The Board adopted the Trial Examiner's Recommended Order
dismissing the complaint.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge dated April 10, 1964, filed by one Albert A. Bavosi, the Regional
Director for Region 1 of the National Labor Relations Board, herein called the Board,
on May 22, 1964, issued a complaint against International Union of Operating Engi-
neers, Local No. 98, AFL-CIO, herein called Respondent. The complaint alleges
that Respondent has caused Consolidated Gas and Service Co., herein called the
Company, to discriminate against Bavosi by refusing to clear or approve him for
employment by the Company at its construction site in Greenfield, Massachusetts,
in violation 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. Respondent filed an
answer denying that it had engaged in any unfair labor practices.
Pursuant to notice, a hearing was held before Trial Examiner Horace A. Ruckel
at Boston, Massachusetts, on October 16, 1964, and February 2, 1965, at which the
parties were represented by counsel. At the conclusion of the hearing the parties
engaged in oral argument and subsequently filed briefs.
Upon the entire record in the case, and from my observations of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Company is a New York corporation having its principal office and place of
business at Syracuse, New York, where it is engaged in the performance of construc-
tion work for utility companies. At all times material herein it was engaged in laying
pipe for the Berkshire Gas Company, at Greenfield, Massachusetts. During the year
prior to the issuance of the complaint the Company performed construction work in
excess of $50,000 outside the State of New York.
II. THE LABOR ORGANIZATION INVOLVED
International Union of Operating Engineers , Local No. 98 , AFL-CIO, is a labor
organization admitting employees of the Company to membership.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The discharge of Albert Bavosi
The Company is a member of the Pipeline Contractors Association which, during
the relevant period herein, had a national agreement with the International Union of
Operating Engineers covering all pipeline work in the United States coming within
the jurisdiction of International and its various local unions. In Massachusetts,
Local Union No. 4, of Boston, and Local Union No. 98, of Springfield, Massachu-
setts, the Respondent herein, had jurisdiction over the areas in which the Company
performed work in 1963. New Bedford was in Local 4's jurisdiction, and North
Adams and Greenfield, Massachusetts, in Local 98's area.
The agreement, the validity of which is not in dispute, requires that an employer
must notify the appropriate local union of work which it obtains, the starting date,
and the location, and hold a prejob conference with its area representative. At the
conference the parties discussed the extent of the job, the working conditions, and
the number of men in the various categories to be employed. The local union is
212-809-66-vol. 155-55
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
given preference of employment to men in the area in which the work is to be per-
formed, if they are available.'
In the summer of 1963 the Company performed contracts in New Bedford, North
Adams, and Greenfield, Massachusetts. Work was first performed in New Bedford,
but it is not entirely clear from the record whether the Company moved from there
to North Adams and thence to Greenfield, or whether it went first to Greenfield. It
is clear, however, that the Company hired Bavosi as a front-end loader in New Bed-
ford, within the jurisdiction of Local 4 which furnished Bavosi 's services . When the
Company went to Greenfield, which was in Local 98's territory, it took him along.
Bavosi testified that he asked the business agent of Local 4 to get him cleared through
the Respondent for work in Greenfield, and that it was his understanding that this
had been done. In fact, it had not been done.
In late September or early October 1963, Kenneth Wright, president and business
manager of Respondent, was advised by a representative of the Company that the
Company had obtained a contract for work in Greenfield and requested him that he
send someone to the jobsite to discuss the procuring of personnel for the job. Accord-
ingly, James Mullen, Respondent's business representative in the Greenfield area, went
to Greenfield and conferred with Roy Liggett, the Company's field supervisor. This
seems to have been a preliminary meeting during which Liggett told Mullen he would
need a front-end loader and certain other employees, and Mullen stated that he had
such men available. Sometime later, after work had begun,2 Mullen returned to the
jobsite and found that certain loaders were not from the Greenfield area, including
the front-end loader. This was Bavosi, who, however, was not known by name to
Mullen, and to whom Mullen did not speak personally. Mullen protested this state
of affairs to Liggett and said that he would have a front-end loader from the Green-
field area on the site the next day. Liggett's credited testimony is that Mullen gave
as his reason that he "had men in the Boston (Local 4's) area-that had been work-
ing and had been bumped off the job in the Boston area, and that he wasn' t going
to have men out of work in his local with Boston men working." On the following
day a front-end loader from the Greenfield area, furnished by Respondent, arrived
at the jobsite and replaced Bavosi.
Conclusions
The issue presented here is whether Respondent, by its agent, Mullen, demanded
the replacement of the front-end loader, Bavosi, because he was not a member of
Respondent Union, or because he was not from the Greenfield area. The General
Counsel contends the former and in oral argument cited the conversation between
Liggett and Mullen, which I have quoted, in support of his contention. I am of the
contrary opinion. To accept the General Counsel's contention it is necessary to
conclude that Mullen intended his statement to Liggett to obtain a preference based
on membership in Respondent rather than on residence in the area. While it is
doubtless true that the requirement of residence in the area could only be met by
members of Respondent, and while Mullen may have used the terms "my local" and
"my area" interchangeably, I am not convinced that membership was the factor in
his mind. His reference to "Boston men" working on the Greenfield project while
men in his local were out of work, and his corresponding reference to men from the
Greenfield area (or Local 98) having been bumped off jobs in the " Boston area,"
persuade me that what motivated Mullen in requesting and obtaining Bavosi's replace-
ment was the fact that he was not from the Greenfield area and that his nonmember-
ship in Respondent was only incidental. The Act and the Board's decisions permit
a preference in hiring members of a labor organization where the preference is based
on a geographical area .3
I shall recommend that the complaint be dismissed.
"This provision reads as follows: ". . . Employer will at the prejob conference notify
Union, as one of the sources from which men are to be recruited, as to the number of
men who will be needed in addition to his regular employees. Employer shall give prefer-
ence in employment to men in the area who have had previous pipe line construction
experience "
2 This date is uncertain since the witnesses were unable to recall whether the Company
performed work at Greenfield before going to North Adams, or vice versa.
3 See Local Union No. 337 , United Association of Journeymen and Apprentices of the
Plumbing and Pipefltting Industry of the United States and Canada, AFL-CIO (Townsend
and Bottum, Inc.), 147 NLRB 929, citing Bricklayers, Masons and Plasterers ' International
Union of America, Bricklayers, etc., Union No 28 (Plaza Builders, Incorporated), 134;
NLRB 751 ; Houston Typographical Union No. 87 , International Typographical Union,
AFL-CIO (Houston Chronicle Publishing Company, at al. ), 145 NLRB 1657.
ATLANTIC THRIFT CENTER 853
CONCLUSIONS OF LAW
1. Consolidated Gas and Service Co. is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Respondent is a labor organization within the meaning of Section 2(5) of the
Act.
3. Respondent has not committed unfair labor practices as alleged in the complaint.
RECOMMENDED ORDER
It is recommended that the complaint herein be dismissed.
Atlantic Mills Servicing Corp. of Wisconsin d/b/a Atlantic Thrift
Center and Retail Store Employees Union , Local 400, affiliated
with Retail Clerks International Association , AFL-CIO
Amalgamated Clothing Workers of America , AFL-CIO and
Retail Store Employees Union , Local 400, affiliated with Retail
Clerks International Association , AFL-CIO. Cases Nos. 5-CA-
2566 and 5-CB-563. November 15, 1965
SUPPLEMENTAL DECISION AND ORDER
On November 19, 1964, the National Labor Relations Board issued
a Decision and Order in the above-entitled proceeding," reversing
Trial Examiner James V. Constantine's Decision 2 and dismissing the
complaint in its entirety. In so finding, the Board stated :
Contrary to the Trial Examiner, we believe the facts and circum-
stances on which he relies to find the unlawful purpose and design
do not, on the record as a whole, support a finding of a conspiracy
on the part of the Respondent-Company and the Joint Board to
violate the Act.
Upon the Charging Party's petition to review and set aside the said
Order, the Court of Appeals for the District of Columbia Circuit
remanded the proceeding to the Board on the ground that the Board
has failed to explicate with sufficient clarity the reasons for its decision
dismissing the complaint.'
Pursuant to the court's remand, the Board 4 has reconsidered its
earlier decision. In doing so, the Board has considered the Trial
i 149 NLRB 884.
2 The Trial Examiner found that Atlantic Thrift Center , herein referred to as Atlantic
or the Company , entered into a conspiracy with the Central States Joint Board of the
Amalgamated Clothing Workers of America, herein referred to as Joint Board or the
Union , and that pursuant thereto it aided, supported , and assisted the Union in violation
of Section 8(a) (2) and ( 1) of the National Labor Relations Act, as amended.
, Sub nom. Retail Store Employees Union, Local 400, Retail Clerks International Associ-
ation, AFL-CIO v. N.L.R.B., 59 LRRM 2763. ( July 13, 1965.)
4 Pursuant to the provisions of Sec#ion 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 [Members Fanning, Brown , and Jenkins].
155 NLRB No. 77.