Laborers Intl. Union Of North America

National Labor Relations Board - Board Decisions

Nov 16, 1976

226 N.L.R.B. 958 (N.L.R.B. 1976)

958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Laborers International Union of North America,
AFL-CIO, Local 282 (Elzinga-Lakin, a Joint Ven-
ture) and Norman Morill. Case 14-CB-3118
November 16, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On June 28, 1976, Administrative Law Judge Stan-
ley N. Ohlbaum issued the attached Decision in this
proceeding. Thereafter, General Counsel filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint herein be, and it hereby is,
dismissed in its entirety.
' The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence convinc-
es us that the resolutions are incorrect Standard Dry Wall Products , Inc, 91
NLRB 544 (1950), enfd 188 F 2d 362 (CA 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
DECISION
STATEMENT OF THE CASE
STANLEY N. OHLBAUM, Administrative Law Judge: This
proceeding under the National Labor Relations Act, as
amended (29 U.S.C. Sec 151, et seg, herein the Act), based
upon complaint of the Regional Director for Region 14,
dated January 12, 1976, as amended March 17, growing
out of a charge filed on January 6, 1976, by the Charging
Party, was heard by me in New Madrid, Missouri, on April
2, 1976, with all parties participating throughout by coun-
sel, who were afforded full opportunity to present evidence
and arguments. Briefs were received from counsel subse-
quent to the hearing, by May 20, 1976, after extension of
time upon application of counsel.
The principal issue is whether Respondent Union has
violated Section 8(b)(1)(A) and (2) of the Act by causing
the layoff of employees Morill, Pobst, and Bollinger by
their employer, Elzinga-Lakin.
Record and briefs having been carefully considered,
upon the basis thereof ' and my observation of the testi-
monial demeanor of the witnesses, I make the following:
FINDINGS AND CONCLUSIONS
I. JURISDICTION
At all material times, Elzinga-Lakin, anoint venture with
office, place of business, and jobsite at St. Jude Industrial
Park, New Madrid County, State of Missouri, has been
and is engaged in building and construction as a subcon-
tractor of Blount Brothers Corporation. During the repre-
sentative year immediately preceding issuance of the com-
plaint, in the course and conduct of its said business
operations, Respondent purchased, caused to be transport-
ed, and received at its said New Madrid, Missouri, jobsite,
directly in interstate commerce from places outside of Mis-
souri, building and other materials and goods valued in
excess of $50,000.
I find that at all material times Elzinga-Lakin has been
and is an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act; and that at all of
those times Respondent has been and is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts as Found
Elzinga-Lakin, an employer within the meaning of the
Act, was a pile-driving and related work subcontractor for
General Contractor Blount Brothers Corporation on a
New Madrid, Missouri, power plant construction job.2 The
Employer is a party to a collective agreement with Respon-
dent Union under which the Union supplies laborers to the
Employer. Although the Employer has the ultimate power
to decide who is to be laid off in a reduction in force, since
perhaps as long ago as 1968 the Employer and the Union
had followed the practice of having the Union designate
those to be laid off when a reduction in force is required by
the Employer.3 In accordance with this practice, on Octo-
ber 6,1 employees Morill (Charging Party here), Pobst, Bol-
linger, and three others,5 having been designated by the
i General Counsel's unopposed May 14, 1976, motion to correct record is
in all respects granted There are numerous other errors and inaccuracies in
the transcript, most of which are self-evident
2 There is indication that the job was completed at the end of March 1976.
7 It is undisputed that this practice of the Employer was in accordance
with an oral agreement to that effect between the Employer's president or
principal, Myron K Lakin, and Union Business Manager Paul Menz
All dates hereafter are 1975 The original complaint refers to October 28
instead of October 6-an obvious error, the amended complaint is likewise
in error in referring to October 8 So, too, is the charge, which speaks of
November 15
5 Only Morill, Pobst, and Bollinger are mentioned in the complaint, for
unexplained reasons, the remaining three employees laid off with them are
226 NLRB No. 147
LABORERS INTL. UNION OF NORTH AMERICA 959
Union,6 were laid off. It is these layoffs which General
Counsel contends were in violation of Section 8(b)(1)(A)
and (2) of the Act.
The employees in question had worked at the New Ma-
drid jobsite as casual laborers, for one subcontractor or
another, since February (Morill), or March (Pobst), or the
previous (1974) October (Bollinger). None has been a
member of the Union;7 each has nonetheless been referred
for work at the jobsite by "work order" or referral slip
obtained from the Union. There is neither contention nor
indication that such "work orders" or referral slips, or
other job referrals by Respondent, have been discrimina-
tory, preferential, or otherwise improper.
Union Business Manager Paul Menz, who made the se-
lections or designations for layoff here, asserts that he at-
tempted to relate them to seniority, but in any case without
reference to union membership or nonmembership-in-
deed, nonmembers continued to work for the Employer at
the project at the time of and following the layoffs here in
question
It is stipulated that, after the October 6 layoffs in ques-
tion, other nonunion member employees who had been
similarly referred prior to October 6 continued to work for
the Employer at the jobsite, pursuant to "work orders" or
referral slips like those given to the employees here, and
they continued thereafter to work there uninterruptedly.
It was not established by either side that the selections
for layoff here were in any way related to union member-
ship or nonmembership;8 nor that seniority was observed,
defined, required, or customary; nor that the layoffs were
made upon any discriminatory, invidious, or otherwise im-
proper basis;9 nor that they were made to encourage or
not included (One name was dropped from the list of seven to be laid off,
because of the temporary absence of a retained employee )
6 The Employer's labor superintendent, David Coe, had a few days earli-
er, on October 2, displayed to Laborers General Foreman Borneman a list
of names of seven employees he (Coe) thought should be laid off-not
including Monll, Pobst, or Bollinger-by reason of a projected economic
reduction in force Borneman indicated to Coe-who had been labor super-
intendent since only late May-that he (Borneman) would pass the word to
Union Steward Smith, since it was the "custom" for the Union to "pick the
layoffs" After Borneman did so, Smith indicated (with Borneman relaying
the message to Coe) that he (Smith) would take the matter up with the
Employer's secretary and notify the latter who was to be laid off After
consulting with Union Business Manager Menz, and notifying or discussing
it with Lakin or Coe (or both), Smith did this on the following Monday,
October 6 , Morill , Pobst, and Bollinger were among the seven designated to
be laid off When Coe, on October 2, had given Borneman his list not
including the foregoing three employees, Coe was aware of the Employer's
existing practice of looking to the Union to make the designations of em-
ployees to be laid off, Coe acknowledges that he had learned of that prac-
tice from Union Steward Smith in September According to Coe, during his
incumbency as the Employer's labor superintendent, there had been no
occasion prior to October 2 when the Employer compiled a layoff list
i Each of the employees had at one time or another unsuccessfully at-
tempted to obtain membership in the Union It is not contended here that
the Union's failure to admit them to membership is in violation of the Act
During the period each worked for the Employer, 10 cents per hour was
withheld from his paycheck and paid over to the union welfare fund, it is
not here claimed that this was in violation of the Act.
8 For example, it has not been established whether the other three em-
ployees, laid off at the same time as the three here, were or were not union
members , nor even that there was a disproportion between nonunion mem-
ber layoffs and union member layoffs
9 Upon the record as a whole I find that the layoff of the employees was
unrelated to their attempts to obtain union membership, and, crediting
discourage union membership; nor that they were made
with the purpose or effect of restraining or coercing em-
ployees in the exercise of any of their rights under Section
7 of the Act.
B. Resolution and Rationale
Section 8(b)(I)(A) and (2) of the Act, which it is alleged
were here violated by Respondent Union, makes it an un-
fair labor practice for a labor organization to restrain or
coerce employees in the exercise of rights under Section 7
(Sec. 8(b)(1)(A) ), or to cause or attempt to cause an em-
ployer to discriminate against an employee in violation of
Section 8(a)(3) or against an employee who has been de-
nied union membership on a ground other than nonpay-
ment of initiation fees and dues (Sec. 8(b)(2) ).
It is clear that in the existing state of the record as made
here, a violation of neither of these subdivisions of Section
8(b) has been established. While, to be sure, suspicion may
exist as to the real motivations and reasons which underly
the layoffs in question, suspicion breeds and feeds upon
itself, and it may not form the core for inference nor serve
as substitute for the substantial credible proof that the law
requires.
It is not alleged, nor does the proof in any way indicate,
that the Union's hiring hall or job referral system was dis-
criminatory, levelled or weighted against nonmembers, or
otherwise unlawful. The case hinges instead on the system
under which the Union made the selections for reduction-
in-force layoff. Such a system is not unlawful per se under
the Act-in other words, it is not per se a violation of the
Act for a union, delegated that responsibility by an em-
ployer (as here), to make the specific selections on behalf
of the employer for layoff to effectuate an economic reduc-
tion in force. There is here no proof that those selections by
the Union were discriminatory, such as to favor union
members over nonmembers, or to encourage or discourage
union membership, or for invidious reasons, or to restrain
or coerce employees in the exercise of rights under Section
7 of the Act, for any other reason violative of the Act.
I am unable to subscribe to the view, urged on behalf of
General Counsel, that since the employees here, actually or
in effect, tendered initiation fees and dues but were never-
theless denied admission to union membership,10 coupled
with their layoffs under the circumstances shown, ipso facto
establishes violation of Section 8(b)(2) because they fall
within the category of employees who have been denied
union membership "on some ground other than [their] fail-
ure to tender the periodic dues and . initiation fees
... . Such a reading of the subsection ignores the pre-
ceding qualifier "to discriminate" in Section 8(b)(2). Nor
am I able to accede to the view that merely because the
selections for layoffs were, with the Employer's agreement
and approbation, made by the Union, that circumstance
per se encourages union membership or as stated by the
Menz' testimony in this aspect, based on demeanor, that it was unrelated to
employee Bollinger's alleged indication that he felt he was being "shaft[ed]"
in not receiving pay he felt was due for what he seemingly considered to
have been uncompensated extra workume
10 As has been stated, it is not here contended that Respondent's failure to
admit the employees to membership was in violation of the Act
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel, "stands as a warning to employees that
the favor and good will of responsible Union officials is to
be nutured [sic] and sustained." The same could be (and
was at one time) said about an "exclusive hiring hall,"
which is not unlawful if it is not operated discriminato-
rily." Whatever the theoretical virtue of that viewpoint,
and whatever may at one time have been Board law on the
possible lack of necessity to establish discrimination in fact
as a predicate for an 8(b)(2) violation of the alleged variety
here involved,12 it is now clear that evidentiary proof of
discrimination is required. Teamsters Local 357 v.
N.L.R.B., 365 U.S. 667 (1961).13 Since such demonstration
is wholly lacking here, the proceeding must fail for lack of
proof and should accordingly be dismissed.
Upon the foregoing findings and the entire record, I
state the following:
11 Local 357, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America [Los Angeles-Seattle Motor Express] v
N L R B, 365 U S 667 ( 1961), International Brotherhood of Boilermakers,
Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local 101 (Stearns-
Roger Corporation), 206 NLRB 30 (1973), International Association of Iron-
workers, Local 10 (Guy F Atkinson Company), 196 NLRB 712 (1972), enfd
83 LRRM 2409 71 LC ¶ 13, 688 (C A 8, 1973)
12 Cf, e g, Mountain Pacific Chapter of the Associated General Contrac-
tors, Inc , 119 NLRB 883 (1957), enforcement denied 270 F 2d 425 (C A 9,
1959), Pacific Intermountain Express Company, 107 NLRB 837 (1954 ), modi-
fied 225 F 2d 343 (C A 8, 1955)
13Cf also Atlas Plastering, Inc, 223 NLRB 1447 (1976), Boilermakers
Local 101 (Stearns-Roger Corporation), 206 NLRB 30 (1973), Ironworkers
Local 10 (Guy F Atkinson Company), 196 NLRB 712 (1972), enfd 83 LRRM
2409, 71 LC ¶ 13,688 (C A 8, 1973), National Electrical Contractors Associa-
tion (Hudson-Bergen Division of the New Jersey Chapter of NECA), 190
NLRB 196 (1971), enfd 457 F 2d 871 (C A 3, 1972), Armour and Company,
123 NLRB 1157 (1959).
CONCLUSIONS OF LAW
1. Jurisdiction is properly asserted in this proceeding.
2. It has not been established by substantial credible evi-
dence that Respondent has, in violation of Section
8(b)(1)(A) of the National Labor Relations Act, as
amended, restrained or coerced employees in the exercise
of any of the rights guaranteed in Section 7 of said Act.
3. It has not been established by substantial credible evi-
dence that Respondent has, in violation of Section 8(b)(2)
of said Act, caused or attempted to cause an employer to
discriminate against an employee in violation of Section
8(a)(3) or to discriminate against an employee with respect
to whom membership in a labor organization has been de-
nied on some ground other than his failure to tender the
periodic dues and initiation fees uniformly required as a
condition of acquiring or retaining membership.
Upon the entire record, the complaint, as amended,
should be dismissed.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this proceeding, and pursuant to
Section 10(c) of the Act, there is hereby issued the follow-
ing recommended:
ORDER14
It is hereby ordered that the complaint herein be, and
the same hereby is, in all respects dismissed.
14 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes