Laborers Union No.1140

National Labor Relations Board - Board DecisionsJun 14, 1973

204 N.L.R.B. 151 (N.L.R.B. 1973)

LABORERS UNION NO. 1140 Laborers Union No. 1140 (Peter Kiewit Sons Co.) and Douglas Wondrasek . Case 17-CB-1055 June 14, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On January 3, 1973, Administrative Law Judge Melvin J. Welles issued the attached Decision in this proceeding . Thereafter , the General Counsel filed ex- ceptions and a supporting brief . Respondent filed a brief in opposition to the General Counsel 's excep- tions. 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 briefs 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 Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dis- missed in its entirety. DECISION STATEMENT OF THE CASE MELVIN J. WELLES, Administrative Law Judge: This case was heard at Omaha, Nebraska, on October 3, 1972, based on charges filed June 27, 1972, and a complaint issued July 29, 1972. The complaint alleges that Respondent Union violated Section 8(b)(2) and (1)(A) of the Act by causing Peter Kiewit Sons Co., herein called Kiewit or the Compa- ny, to discharge Douglas Wondrasek. Respondent denies any violation of the Act. Respondent and the General Counsel have filed briefs. Upon the entire record in the case, including my observa- tion of the witnesses , I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER AND THE LABOR ORGANIZATION INVOLVED Peter Kiewit Sons Co. is a Nebraska corporation engaged 151 in the heavy and commercial construction industry as a contract, with its principal place of business in Omaha, Nebraska. The Company annually purchases and receives goods and materials from points outside the State of Ne- braska valued at more than $50,000. I find that it is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. Respondent Laborers Union No. 1140 is a labor organization within the meaning of Section 2(5) of the Act. II THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts The Company and the Union have been since at least 1970 parties to a collective-bargaining agreement between the Union and Heavy Contractors Association, Inc., of which the Company is a member. The agreement contains a provision obligating signatory employers to obtain their employees from the Union's hiring hall, except that any such employer could recall men when resuming work fol- lowing a winter shutdown who were working at the time of the shutdown, or hire directly men who worked for him during a previous year, provided the employer notified the Union of such hires before the men reported for work. An employer was also permitted to hire directly if the Union had not furnished requested workmen within 18 hours of the request, and in emergencies. Douglas Wondrasek, a college student, had worked at Kiewit during the summer months of 1970 and 1971. He obtained his first employment in 1970 through a company official, Steve Lokie, not through the Union's hiring hall, although he later that year joined the Union. The following summer he returned to work for the Company, again through Company Official Lokie. The Union was not noti- fied of his employment at that time. Again in 1972, Wondra- sek returned to the Company for the summer months. He was assigned to foreman Jim Hausman, who had been his supervisor each of the two preceding summers. On June 19, 1972, about 2 or 2:30 p.m., Union Business Agents Jack Budd and Richard Otte came to the jobsite where Hausman's crew was working. They were there to check the union membership and hiring hall referral cards of employees on the job. Wondrasek testified that he over- heard Budd asking Hausman how many laborers were working. He and another member of Hausman's crew, Scott Schlarbaum, went to another portion of the project. Schlarbaum told foreman Gene Thompson that Budd was on the job, asked Thompson if they should leave, and Thompson "nodded yes, that we had better." Wondrasek and Schlarbaum then left on Wondrasek's motorcycle. At that point, according to Hausman, Budd asked him for the names of the "two guys [who] got on a motorcycle and went over the hill," and Hausman told him they were Won- drasek and Schlarbaum. Budd then said "they couldn't come back to work out there." Budd testified that when he asked Hausman "who went over the hill?" Hausman replied "I don't know. They don't work for me, they are not on my crew. My crew is right over there." Budd then asked Ho- worth, another Kiewit supervisor, who took off on the mo- torcycle, and Howorth said he did not know. Budd also 204 NLRB No. 9 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD denied telling Hausman or any one else that anyone, let alone Wondrasek or Schlarbaum, should be discharged or not allowed to return to work . Business Agent Richard Otte also testified that although Budd asked Wondrasek for the names of the two who took off on the motorcycle , Hausman said he did not know . Otte , who had witnessed the abrupt department of Wondrasek and Schlarbaum and told Budd about it, also asked other foremen who they were, but did not get any affirmative response . I credit Hausman 's version of the events of that day . Both Budd and Otte indicated by their testimony that they were extremely busy men, that they dealt with hundreds of people, visited many jobs, and saw many applicants for union membership and union clearance each day, so that pinpointing any specific person by name was difficult . Furthermore , although Budd did not either see Wondrasek go "over the hill" on the 19th, or according to him , get his name from Hausman or anyone else, he did ask Wondrasek the next day at the union hall whether he was the one who went over the hill the day before . I find it difficult to understand how this question could have been asked if Budd did not recognize either Wondrasek 's name or his face.' On the 20th , as already indicated , Wondrasek went to the union hall . He was second in line behind Phil Peterson? When the union hall opened , Peterson was given union membership , at his request , and clearance for the job, by Budd. When Wondrasek then asked to join the Union, Budd asked if he was working for Kiewit . When Wondrasek said yes, Budd asked him , using an obscene epithet, if he had been one of the men who had left on the motorcycle the previous day. Budd then told him to leave .3 Ackerman and Pearson were also given clearance to work for Kiewit. That night Wondrasek talked to Hausman , telling him he could not get into the Union . Hausman then said he could not have his job back. Wondrasek had spoken with Haus- man the evening before , asking if he could return to work. Hausman said he could "if he got okayed by the Union." B. Discussion This little case is somewhat confusing because of the positions of the parties . Thus, the General Counsel is not basing its claim of a violation on Budd's June 19 admoni- tion to Hausman that Wondrasek not be put back on the job, but only on the Union's "refusal to extend membership to, and provide clearance for Wondrasek 's employment" on June 20. The General Counsel's theory, as I read his brief to me, is that the Union rejected Wondrasek's application i Budd's explanation that he did not give Wondrasek clearance because he did not recognize him as one of the men whose clearance the Company had requested still would not account for his asking Wondrasek , among the large number of people (50 to 60 at 7 a.m., according to Budd ) at the union office the morning of the 20th , if he had gone over the hill. 2 Peterson worked for foreman Howorth on another crew When ap- proached by Budd the day before , he told Budd he did not have a union card, and was informed he could finish work , but had to be at the union hall the next morning. Don Pearson and Wayne Ackerman were also working with- out union clearance on Howorth's crew Haworth requested clearance from Budd and Otte for all three employees. 7 Budd did not specifically deny this conversation . He testified that he "might have said something like that ," but had no recollection of Wondrasek by name or face for membership on June 20 only because Wondrasek had gone "over the hill" (as shown by Budd 's having permitted the three other employees to return to work), and that the refusal to grant such clearance for that reason violated Sec- tion 8(b)(2). Respondent Union defends on a number of grounds, first, that Wondrasek, by going over the hill, "quit" his job, so that no violation by the Union could be found in any circumstances , second , that the Union did not request his discharge, and finally , that the Union, assuming it caused Wondrasek's discharge , did so legally , in the performance of policing its lawful contractual hiring hall . As is evident, the Union 's defenses all go to the events of June 19, the General Counsel's arguments for finding a violation to the events of June 20. As all the facts were fully litigated , I shall consider them all in determining whether or not the Act has been violated. I have credited Hausman 's testimony that Budd told him that Wondrasek and Schlarbaum "couldn't come back to work" after they were seen taking off on the motorcycle. In view of the purpose for which Budd and Otte were at the project , it is a fair inference that two employees taking off so abruptly are doing so because they know they do not have the requisite union clearance , as in fact was the case.4 The Board has consistently held that a union possessed of a lawful exclusive hiring hall agreement does not violate Section 8(b)(2) by causing the discharge of an employee who is on the job without having complied with the contrac- tual hiring hall procedures . As the Board stated in Local 542, International Union of Operating Engineers, AFL-CIO (Ralph A Marino, General Contractor), 151 NLRB 497:5 As we construe the hiring and referral clause to require the Employer to utilize the union referral system in securing employees for the work in that area , the Union could , without violating the Act, properly seek the dis- charge of the employees in question who had bypassed the Union's referral system. By requesting Wondrasek 's discharge on June 19, therefore, Respondent Union did not violate Section 8 (b)(2).6 I do not find that Wondrasek "quit." Although his departure in the circumstances could obviously have been grounds for com- pany action against him, that was the company 's choice to make ; "quitting" did not automatically flow from his leav- ing without permission. I also conclude , for reasons set forth below, that the Union's failure to clear Wondrasek the next day did not The General Counsel states in his brief that the Company was permitted to hire Wondrasek "over the fence ," (i e., without clearance) because he had worked for Kiewit the preceding summer . The contract permits direct hinng, however, only where the employee was legitimately working the preceding season , and Wondrasek had not gone through the union hinng hall in either 1971 or 1970. Furthermore , the contract provides for notification to the Union poor to an employee starting work even for those hired pursuant to that contractual exception , and no notification of Wondrasek 's hire or work- ing on the job had ever been sent to the Union. Cited with approval in Local 673, Laborers ' International Union of North America (Perini Corp) 171 NLRB 894, 900. Accord: Local Union No 38, United Association of Plumbers, 159 NLRB 370, 377, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 389 (Morris Plumbing Co.), 176 NLRB 402, 404-405. 6 Perhaps the General Counsel's failure to argue that this request was the "violation" here was in deference to the well-settled law in this respect LABORERS UNION NO. 1140 violate Section 8(b)(2). In the first place , having lawfully asked the Company not to put him back the day before, it would be somewhat absurd to find a violation for refusing to clear him for the same job with the same company the next day . The cases cited above , permitting a union legally to require the discharge of an employee who obtains a job without following lawful contractual hiring hall procedures, would be rendered nugatory if the employee so discharged had to be put right back on the job by requiring union clearance . It would , indeed , be giving him a preference over all other applicants by virtue of having disregarded the orderly hiring hall procedures in the first place . The situa- tion here is wholly analogous to that of an employee lawful- ly discharged under a valid union-security agreement, who cannot , by paying his dues the next day, or seeking employ- ment with the same company as a "new employee ," require the union and company to put him back to work . Standard Brands, Incorporated, 97 NLRB 737. Cf. International Asso- ciation of Heat and Frost Insulators and Asbestos Workers, Local No. 5, AFL-CIO (Insulation Specialties Corp.), 191 NLRB 220. A second reason for finding no violation stems from the contract's provision that the Union refer applicants "re- quested by name who have previously worked for Contrac- tor in the area.... " In this case , Pearson , Peterson, and Ackerman requested; by name , by Foreman Howorth. There is no evidence , however, that Wondrasek 's clearance was requested by Kiewit.1 Nor is there any showing that 7 Hausman's telling Wondrasek to get cleared scarcely satisfied that con- 153 Wondrasek would normally, absent the June 19 events, have been referred , or granted union membership. To the contrary , the undisputed evidence shows that there were many more applicants than there were jobs, and that on that day. June 20 , some 15 to 20 men were not given member- ship , although requesting it, because the Union had no work to give. For all the above reasons , I find that the General Counsel has not shown that the Union violated Section 8(b)(2) and (1)(A) of the Act. CONCLUSION OF LAW The evidence does not establish that Respondent engaged in the unfair labor practices alleged in the complaint. Upon the foregoing findings of fact , conclusion of law, and the entire record , and.pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERS The complaint is dismissed in its entirety. tractual requirement. There is no testimony, indeed , that Wondrasek ever told Budd that Hausman made the request even to Wondrasek. 8 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.